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Peterson Stark Scott

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New Directions for the Board in Case Management and Early Dispute Resolution
October 26, 2002 paper Appendix A Appendix B Appendix C Appendix D Appendix E

APPENDIX "E"

EXPROPRIATION COMPENSATION BOARD

Proposed Changes to the Expropriation Act
(For Discussion Purposes Only)

1. To Broaden the Authority of Part Time Members

An amendment would be sought to section 53 of the Act, headed "Expropriation Compensation Board". Section 53(4) currently provides:

53 (4) The chair may appoint a panel of the board consisting of 3 members, to hear any matter before the board, and if a panel has been appointed,
    (a) the chair must appoint one of the members of the panel to preside, and
    (b) the panel has the jurisdiction of the board with respect to matters under the Act that come before it.

The proposed amendment would authorize the chair also to appoint a sole member to hear any matter before the Board and would give the sole member, if so appointed, the jurisdiction of the Board with respect to matters under the Act that come before the member.

The policy objectives underlying the proposed amendment are:

  • to facilitate the Board's current initiative to introduce early dispute resolution into its processes by allowing a member to conduct case management, mediation and case settlement conferences, with the power to make binding orders and directions.
  • to improve the timeliness of decision making processes by allowing, at the chair's discretion, the wide range of interlocutory matters that often precede a compensation hearing, and which presently can only be heard and decided by the chair or the vice chair acting alone, also to be heard and decided by other members of the Board acting alone.

2. To Authorize Rules for Case Management and ADR Processes

An amendment would be sought to section 27 of the Act, headed "Powers and duties of the board". Section 27(1) currently provides:

27 (1) The board may, subject to the approval of the Lieutenant Governor in Council, prescribe rules, consistent with this Act, that govern the board's practice and procedure and the exercise of its powers.

The proposed amendment would specifically authorize a change to the Practice and Procedure Regulation to incorporate rules governing case management, mediation, and settlement conferences, and to make attendance mandatory.

  (1.1) Without limiting subsection (1), the board may prescribe rules governing the conduct of case management conferences, mediation conferences, and settlement conferences, and requiring the parties to a proceeding to attend at such conferences in order to facilitate just and speedy resolution of their dispute.

3. To Broaden the Penalty Provisions under Section 47

An amendment would be sought to section 47 of the Act, headed "Interest penalties for delay", to include costs as well as to address the consequences of non-compliance. Section 47 currently provides:

47 If, in the opinion of the board, an unreasonable delay in proceedings under this Act has been caused by an owner or the expropriating authority, the board may penalize
  (a) the owner, by depriving the owner, in whole or in part, of the interest to which he or she is entitled, or
  (b) the expropriating authority, by increasing, by not more than double, the interest it is required to pay.

Under the proposed amendment section 47 would be headed "Interest and cost penalties for delay or non-compliance", and would provide:

47 If, in the opinion of the board, an owner or the expropriating authority has caused an unreasonable delay in proceedings under the Act or has failed to comply with orders or directions of the board, the board may penalize
  (a) the owner, by depriving the owner, in whole or in part, of the interest or costs to which he or she is entitled, or
  (b) the expropriating authority, by increasing, by not more than double, the interest or costs it is required to pay.

4. To Make Cost Entitlement Subject to the Amended Section 47

An amendment would be sought to section 45(3) of the Act, which currently provides for an expropriated owner's entitlement to costs subject to subsections (4) to (6), to incorporate by reference the cost penalty provision under section 47.

Under the proposed amendment, section 45(3) would provide:

45 (3) Subject to subsections (4) to (6) and section 47, a person whose interest or estate in land is expropriated is entitled to be paid costs necessarily incurred by the person for the purpose of asserting his or her claim for compensation or damages.

5. To Incorporate Penalty Costs under Section 45

An amendment would be sought to section 45 of the Act specifically providing that failure to comply with orders or directions of the board arising out of case management conferences could result in a non-complying owner being deprived of costs or having to pay the costs of the expropriating authority or a non-complying expropriating authority having to pay increased costs to the owner in respect of preparation for and attendance at the case management.

Under the proposed amendment, a new subsection would be added to provide:

  (6.1) Notwithstanding subsection (3), if in the opinion of the board an owner or the expropriating authority has failed to comply with an order or direction of the board arising out of a case management conference, the board may in its discretion, penalize
    (a) the owner, by depriving the owner, in whole or in part, of the costs to which he or she is entitled in respect of the case management conference, or by ordering that the onwer pay the costs of preparation for and attendance at the case management conference by the expropriating authority; or
    (b) the expropriating authority, by increasing, by not more than double, the costs it is required to pay to the owner in respect of the owner's preparation for and attendance at the case management conference.

The Tariff of Costs Regulation would be correspondingly amended to provide that the costs of the expropriating authority referred to in (6.1)(a) are costs to be calculated in accordance with the Tariff.

6. To Make the Foregoing Amendment Applicable to Advance Costs

An amendment would be sought to section 48 of the Act, headed "Advance payment of costs", to make section 45(6.1) applicable to a a review of advance costs.

Under the proposed amendment, section 48(6) would provide:

  48 (6) Section 45 (6.1), (7), (11) and (12) apply to reviews under this section.

7. To Address the Effect of Settlement on Entitlement to Costs and Additional Interest

Further to the report of the Costs Subcommittee (Appendix "D", s. 4), an amendment would be sought to section 45(4) to avoid the circumstance where settlement of an issue might lead to a calculation which deprives the owner of automatic entitlement to costs.

Under the proposed amendment, section 45(4) would provide:

  45 (4) If the compensation awarded to an owner, other than for business losses, is greater than 115% of the amount paid by the expropriating authority under section 20(1) and (12) or otherwise, excluding payments that had been made by the expropriating authority in respect of claims that were settled and therefore not considered by the board, the authority must pay the owner his or her costs.

A similar amendment would be sought to section 46(4) with respect to the calculation of additional interest.

October 26, 2002 paper Appendix A Appendix B Appendix C Appendix D Appendix E
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Page last updated: February 17, 2016