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TRIPP, BOYD and RUSSELL v. THE MINISTRY OF TRANSPORTATION In 1995, the Ontario Municipal Board (the Board) held a nine day hearing relative to the expropriation of land owned by two groups for purposes of constructing the new Highway 416 in the City of Nepean. Each group was awarded, by the Board, payment of $1.5 million together with interest totalling $1.3 million and "reasonable legal appraisal and other costs {(1995), 55 L.C.R. 246 (OMB.)}. Following the hearing, the owners submitted their claims for costs which subsequently went to assessment. The assessment officer, after a seven day hearing, assessed fees for Tripp at $143,089.78 and for Boyd/Russell at $148,568.62. Included in the legal fees for Tripp was a performance bonus of $32,100. Included in the consulting fees for Boyd/Russell was an appraisal report costing $5,952. This was a second appraisal report and it was not relied on by the owners at the OMB hearing. The Ministry of Transportation appealed and in so doing raised three issues:
These issues were dealt with by Finlayson, Weiler, JJ.A and MacPherson J. in a Court of Appeal decision (19990805, Docket: C28767). The appeal was allowed on the first two matters and was dismissed on the last. Regarding the first issue, the Court of Appeal ruled that a performance bonus should not be paid to a solicitor acting in an expropriation case. The court reviewed those instances where solicitor bonus is an accepted practice (for example, high risk case where the defendant may not be able to pay, and lack of periodic billing with the expectation of bonus payment at the end of the case). The Court observed that in an expropriation case "the award of costs is a question of quantum, and not of entitlement". Further, the wording of Section 32(1) of the Expropriations Act specifically refers to legal costs "actually incurred by the owner". The Court further noted that the obligation to pay costs by the expropriating authority is accompanied by a notion of fairness on behalf of the owners and that the award of a bonus to a solicitor at a point in time when the owners were reasonably sure that they would be reimbursed their legal fees lacked the requisite element of fairness. On the second issue, the Court concluded that rule 30.03(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 required that all documents relevant to the matter must appear in the affidavit of documents. "There is a continuing obligation of disclosure." It could have been identified as a privileged document. The Court ruled that since the report was not contained in the list of document, it must have been irrelevant. Therefore no costs relating to the report should be granted. Thirdly, MTO maintained that because s.32 does not specifically state that interest is payable (it is silent) that no interest should be paid. The Court of Appeal ruled that the Courts of Justice Act is not simply a procedural enactment, but has the effect of conferring substantive rights including "the right of a party to seek post-judgement interest on an award made by a statutory tribunal when such award has been made enforceable by the courts." The owners maintained that the decision of the Board could be filed with the superior court and be enforced as a judgement and that a judgement attracts interest until it is paid. MTO responded that such provisions conflicted with s.32 of the Expropriations Act which was silent on payment of interest. The Court of Appeal concluded that there was no conflict and the award of costs is enforceable as a judgement, including payment of interest on costs. As a result, the Court of Appeal reduced the award to Tripp by $32,100 (the solicitor bonus) and the award to Boyd/Russell by $5952.68 for the appraisal report which was not relied upon. —Brent Clarkson This article appears in the OEA FALL 1999 NEWSLETTER |
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