Halifax (Regional Municipality) v. Turner Drake & Partners Ltd.

Halifax (Regional Municipality) v. Turner Drake & Partners Ltd. Court Court of Appeal Date 1998-05-07 Citation 1998 NSCA 107 Docket CA 143352 Judge/Registrar/Adjudicator Cromwell, Thomas A. (Honourable Justice); Clarke, Lorne O. (Honourable Chief Justice); Freeman, Gerald B. (Honourable Justice) (CA) Document Type Decision Decision Content Date:19980507 Docket: C.A.143352 NOVA SCOTIA COURT OF APPEAL Cite as: Halifax (Regional Municipality) v. Turner Drake & Partners Ltd., 1998 NSCA 107 Clarke, C.J.N.S., Freeman, Cromwell, JJ.A. BETWEEN: HALIFAX REGIONAL MUNICIPALITY ) ) Peter Darling ) for the Appellant Appellant ) ) - and - ) ) Robert L. Barnes, Q.C. ) Kelly Sullivan ) for the Respondent TURNER DRAKE& PARTNERS LIMITED ) and JOSEPH ARAB ) ) Respondent ) Appeal Heard: ) April 14, 1998 ) ) ) Judgment Delivered: ) May 7, 1998 ) THE COURT: Appeal dismissed per reasons for judgment of Freeman, J.A., Clarke, C.J.N.S. and Cromwell, JJ.A. concurring. Freeman, J.A.: The Nova Scotia Utility and Review Board ordered the appellant to pay the appraisal firm Turner Drake & Partners Limited $13,078.92 plus $2,000 costs with respect to interest which accumulated on accounts for appraisal services rendered to the respondent Joseph Arab in connection with land expropriated from him in 1989. The proceedings took a roundabout route and Halifax Regional Municipality, formerly the City of Halifax , has appealed. Mr. Arab assigned his claim against the city for interest on the appraisal accounts to Turner Drake. This does not significantly affect the principles involved, and the City has abandoned a ground of appeal based on the validity of the assignment. The order appealed from would have appeared unremarkable if it had accompanied the Board’s order for compensation of $136,050 made on December 23, 1994, after hearings in June and July of 1993. However the Board at that time ordered that Mr. Arab should have his “reasonable legal, appraisal and other costs actually incurred for the purpose of determining compensation,” and ordered that “the amount of such costs be referred to a Taxing Master of the Supreme Court of Nova Scotia pursuant to s. 52(1) of the Expropriation Act.” The taxing master considered only the legal costs, and his decision was silent as to the appraisal and other costs, including interest. The City paid the appraisal costs but refused to pay interest on them. The Board resumed jurisdiction and ordered the payment of interest and costs in a decision dated September 25, 1997 and an order dated October 29, 1997. The appellant argues that the Board lost jurisdiction over interest by referring it to the taxing master and had no right to resume it. It asserts that Mr. Arab should have appealed from the taxing master’s decision, or pursued a prerogative remedy, and has lost his rights by laches. The Board’s right to refer not only legal costs but appraisal and other costs to a taxing master is created by Section 52 (1) of the Expropriation Act, R.S.N.S. 1989, c. 156, which has been replaced in the present statute but still applies to expropriations prior to February 1, 1996. It provides: 52(1) Where the amount to which an owner is entitled upon an expropriation or claim for injurious affection is determined by the board and the amount awarded by the Board is eighty-five per cent, or more, of the amount offered by the statutory authority, the Board shall make an order directing the statutory authority to pay the reasonable legal, appraisal and other costs actually incurred by the owner for the purposes of determining the compensation payable, and may fix the costs in a lump sum or may order that the determination of the amount of such costs be referred to a taxing master of the Supreme Court who shall tax and allow the costs in accordance with this subsection and the tariffs and rules prescribed by the Costs and Fees Act. The compensation ordered by the board exceeded eighty-five per cent of the amount offered by the appellant. The Board’s order as to costs reflected the language of the section. It awarded legal, appraisal and other costs actually incurred to Mr. Arab. The reference to the taxing master was merely for fixing the amount. At times relevant to this appeal s. 35 of Expropriation Act required an expropriating authority to pay appraisal fees incurred by an expropriated owner for “one appraisal”. This has been interpreted by this court to mean the Board can order payment forthwith upon presentation, before the compensation hearing. See Williams v. Nova Scotia (1995), 144 N.S.R. (2d) 19. Apparently part, at least, of the appraisal fees claimed related to “one appraisal” pursuant to s. 35. This court has held in Williams that the Board has no jurisdiction to refer s. 35 appraisal charges to a taxing master as it can do with s. 52(1) appraisal fees. As no distinction was made in the present case between s. 35 fees for one appraisal and additional appraisal fees, if any, under s.52(1), a serious question exists as to the validity or scope of the Board’s order purporting to refer appraisal expenses to the taxing master to determine the amount. Even under s. 52(1) a referral of appraisal and other costs to a taxing master is to be approached warily. A taxing master has power to reduce the fees a client must pay to his solicitor when these are found to be unreasonable. Therefore when legal fees for which an expropriating authority must compensate an owner are reduced by a taxing master under s. 52(1), the fees which the solicitor may claim against his client, the owner, may be similarly reduced by taxation. The owner is not left out of pocket. But there is no such authority in a taxing master to reduce the fees the owner must pay to other professionals such as appraisers. The amount of appraisal costs for which the expropriating authority must compensate the owner may be reduced by the taxing master under s. 52(1). But that does not affect the amount the owner must pay the appraiser under contract. The owner can be left out of pocket, which is contrary to the general intention of the legislation. In my view it is generally better for the Board, with its broader experience, to retain control over expenses in issue between expropriating authorities and owners other than legal fees and disbursements. In any event the taxing master thwarted the order, such as it was, by his failure to carry out his instructions. Taxing of the accounts began April 12, 1995 and the taxing master’s decision, reducing legal fees and disbursements by $23,600 to $70,600, was dated October 27, 1995. It makes no mention of appraisal fees or the interest on them, although evidence was led and counsel made submissions. There was also a failure to decide an account for interest on a separate account to Mr. Arab by an engineering firm. In a letter dated February 27, 1996, the taxing master said interest had not been approved on that claim for lack of evidence as to terms, and as to compliance with the Consumer Protection Act. The taxing master has never referred to the Turner Drake accounts and there is nothing in the record on which it could be found that he exercised jurisdiction. The taxing master made no record of the proceedings before him. After Mr. Arab assigned his claim for interest, Turner Drake brought a further application before the Board. Counsel agreed to a statement of facts based on admissions from the first hearing to provide factual background for the Board. This disclosed three billings by Turner Drake to Mr. Arab totaling $8,675.83 in 1992 and another for $17,773,79 in 1993 for a total claim of $26,449.62. All were promptly submitted to the appellant. It is not clear how much of this related to a “first appraisal” under s. 35. Even though the amount of the appraisal account had been referred by the Board to the taxing master and ignored by him, the appellant paid $13,716.38 on the Turner Drake accounts in January, 1995, and the balance of the account in February 1995. Nothing was paid for interest despite the acknowledgment in the statement of facts that Turner Drake & Partners Limited did have a retainer contract with the Claimant, Joseph Arab, stipulating for the payment of interest on overdue appraisal accounts pursuant to which interest would be recoverable in a civil action by Turner Drake & Partners Limited against Mr. Arab. . . . The Board considered its authority to reassert jurisdiction over the interest question following the frustration of its attempted referral to the taxing master and concluded that it could do so. It cited Administrative Law, 3rd ed., David Mullan, who remarks at p. 198 that A lawful delegation of authority does not involve a complete surrender of power by the person or authority named in the statute. In the absence of statutory prohibition, it is free at any time to revoke the delegation and resume its authority. . . . The primary decision maker . . . cannot however rescind an action taken or a decision made by the delegate within the terms of its authority during the period of delegation. The Board also referred to the judgment of Sopinka J. in Chandler v. Alberta Association of Architects [1989] 2 S.C.R. 848, 62 D.L.R. (4th) 577 at p. 596 in which he stated that the principle of functus officio is based: . . . on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of the administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. The Board found an indication that a decision can be reopened in s. 29(5) of the Utility and Review Board Act, S.N.S., 1992, C.11: 29 (5) Where a decision or order of the Board has been made a rule or order of the Supreme Court, a decision or order of the Board rescinding or varying the same shall and shall be deemed to rescind or vary the rule or order, and may in like manner be made a rule or order of the Supreme Court. Interest on accounts is within the Board’s jurisdiction over “other costs”: see L.E.Powell Properties Ltd. v. Attorney General of Nova Scotia [Powell No. 2] (1996), 60 L.C.R. 1 (C.A.) at p. 8. The agreed statement of facts constituted evidence before the Board supporting its finding of Mr. Arab’s liability to pay interest on amounts overdue under the appraisal contract. The jurisdiction of this court on appeals is limited to questions of jurisdiction and law, and no issues as to the quantum of interest payable as between Mr. Arab and the City are before it. The main issue before the Board appears to have been Mr. Arab’s right to assign the claim to Turner Drake, but that is not an issue in this appeal. The issues for this court are stated in the appellant’s factum as follows: I Did the Board continue to have jurisdiction over the interest charges at issue, in spite of having referred the matter of costs, including disbursements, to the Taxing Master pursuant to its Order dated January 27, 1995? II How did the Taxing Master deal with the interest at issue, if at all? III What was the jurisdiction of the Board, if any, to review the manner in which the taxing master dealt with the question of interest? IV If the board originally had jurisdiction to review the decision of the taxing master or his order of January 27, 1995, was Arab/Turner Drake still in a position to proceed in January of 1997, in light of the lapse of the applicable limitation periods (if any) or the operation of the doctrine of laches. V If the Board had jurisdiction to make an award on account of interest, were the materials presented before it sufficient to substantiate a finding that at the time of the assignment to Turner Drake in December of 1996, Arab had a right to pursue HRM (Halifax Regional Municipality) for the interest claimed because he, in turn, had incurred an equivalent liability to Turner Drake? VI What costs, if any, should be awarded? A brief general answer to all but the last issue is that the Board had awarded Mr. Arab his appraisal costs, which included interest, in December 1994. Interest was allowed to become unusually high because the appellant failed to pay those costs, or a significant part of them, in a timely manner. The Board’s attempt to have the taxing master determine the amount of the appraisal accounts and interest was frustrated by its own flawed order and the taxing master’s failure to act. Mr. Arab was the innocent victim of a series of failures. In order to do justice to him the Board committed no reversible error in reasserting its jurisdiction over interest, and in September, 1997, it made the order it should have made in December, 1994. I will however deal in more detail with the issues as they are numbered by the appellant. I In my view the failure of the taxing master to accept the jurisdiction the Board purported to repose in him makes it unnecessary to consider the nature of the Board’s continuing jurisdiction between the date of its own order of December, 1994, and the October 30, 1995, decision of the taxing master. Whatever the intervening uncertainty, after the taxing master’s order it was apparent the Board had not succeeded in ridding itself of the need to deal with interest. Jurisdiction over the statutory rights of an individual cannot be shunted into limbo. Jurisdiction was held out to the taxing master but in my view remained in the Board until it was effectively transferred to him, that is, until he accepted and exercised it. To my mind, as well, the Board never lost jurisdiction because its order was flawed to the extent that it attempted to refer s. 35 appraisal costs to a taxing master. As events turned out that question became moot. If jurisdiction was actually transferred, I would agree with the Board’s reasoning that it had the right, in the circumstances, to resume it. II The taxing master did not deal with appraisal costs, and accordingly did not deal with interest on them. III The Board did not have to review the manner in which the taxing master dealt with interest because he did not deal with it; the Board was free to exercise its own original jurisdiction. IV This entire matter has proceeded at a leisurely pace on the part of all concerned, and it does not seem appropriate to exercise the equitable remedy of laches against Mr. Arab because of his delay in crafting a response to difficulties he could not have anticipated. That would be less than just when the interest question was created or exacerbated by the appellant’s delay in paying the accounts. Mr. Arab cannot be faulted for delay in appealing from the taxing master’s decision when the taxing master did not provide a decision for him to appeal from. V In my view there was evidence before the Board in support of the decision appealed from that Mr. Arab or his assignee had the right to claim interest from the appellant, and this court should not interfere. VI The Board awarded what it described as solicitor and client costs fixed in the amount of $2,500. Special circumstances relevant to costs both at the hearing and this appeal are the procedural difficulties, the assignment, and the fact that this court's decision dealing with interest in expropriation matters in Powell No. 2 had not been released at the time of the taxation. I would not disturb the Board’s discretion, and I would award costs of the appeal equivalent to forty per cent of costs on the hearing of first instance. I would therefore dismiss the appeal with costs fixed at $1,000 including disbursements. Freeman, J.A. Concurred in: Clarke, C.J.N.S. Cromwell, J.A. C.A. No. 139791 NOVA SCOTIA COURT OF APPEAL BETWEEN: HALIFAX REGIONAL MUNICIPALITY ) ) ) ) Appellant ) - and - ) ) ) TURNER DRAKE & PARTNERS ) LIMITED AND JOSEPH ARAB ) ) ) ) ) REASONS FOR ) JUDGMENT BY: Respondents ) ) Freeman, J.A. ) ) )