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Telecom Order CRTC 2024-242

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Ottawa, 17 October 2024

File numbers: 1011-NOC2022-0147 and 4754-733

Determination of costs award with respect to the participation of the Utilities Consumers’ Group in the proceeding initiated by Telecom Notice of Consultation 2022-147

Application

  1. By filing dated 19 February 2024, the Utilities Consumers’ Group (UCG) applied for costs with respect to its participation in the proceeding initiated by Telecom Notice of Consultation 2022-147 (the proceeding). In the proceeding, the Commission considered the actions it should take to improve telecommunications services in communities in the Far North.
  2. Northwestel Inc. (Northwestel) filed an intervention, dated 4 March 2024, in response to UCG’s application. It copied its response to the distribution listFootnote 1 for a Commission staff letter dated 16 January 2024. UCG filed a reply dated 11 March 2024.
  3. To support its application for costs, UCG filed Form III with the Commission claiming $11,750 for 25 days of work at the in-house rate of $470 per day. UCG’s claim did not include the federal Goods and Services Tax (GST), nor did it include a tax rebate. UCG made no submission as to the appropriate parties to be required to pay any costs awarded by the Commission (the costs respondents). No other documents were received by the Commission through the CRTC’s official filing system (My CRTC Account) as part of UCG’s initial application.

Answer

  1. Northwestel challenged UCG’s application for costs, arguing that (i) it did not respect the proper form prescribed by the Commission; (ii) UCG had not demonstrated that it assisted the Commission in developing a better understanding of the matters that were considered; and (iii) the total amount of $12,542.20 claimed by UCG was excessive, was not supported by UCG’s submissions, and was unreasonable given UCG’s minimal participation in the proceeding. For these reasons, Northwestel argued that UCG’s entire costs claim should be disallowed or reduced significantly.
  2. Concerning its first argument, Northwestel noted that UCG had filed only Form III, and as a result, neither the company nor the Commission could adequately judge the reasonableness of UCG’s fees. Northwestel further submitted that UCG had not submitted an affidavit of disbursements with a jurat, making it impossible to ascertain whether the affidavit was indeed affirmed before a commissioner for taking oaths. As a result, Northwestel argued that it was invalid and could not be accepted as evidence of the disbursements claimed by UCG. Northwestel also submitted that UCG had not submitted Form V and that, per paragraph 8 of the Commission’s Guidelines for the Assessment of Costs (the Guidelines) set out in Telecom Regulatory Policy 2010-963, “[c]osts applications will generally not be processed unless and until these forms, completed in full, have been filed with the Commission.”
  3. Concerning its second argument, Northwestel submitted that UCG’s statements that it represented a valid group of rate payers in the Yukon and that it provided the Commission with valid information through its participation in the proceeding do not substantiate that UCG assisted the Commission in developing a better understanding of the matters considered.
  4. Concerning its third argument, Northwestel argued that UCG’s claim was unnecessarily and unreasonably incurred, and that all the amounts claimed should be reduced. Northwestel referred to Telecom Order 2017-376 as illustrative that the Commission has reduced costs for being unnecessary and unreasonable. Specifically, Northwestel argued that 25 days of participation (17 in preparation and 8 attending the hearing) was plainly unnecessary and unreasonable given the level of participation from UCG, which comprised a one-paragraph intervention, a nine-page hearing presentation, and three pages of further comments, as well as a half-hour presentation at the hearing. Furthermore, Northwestel argued that $179.20 for intercity car travel was excessive and unreasonable given UCG’s address of 242 Squanga Avenue, Whitehorse. Northwestel also took issue with $150 claimed for in-house photocopying (1,000 pages at the Commission-approved rate of $0.15 per copy) and $79 for an office expense it understood was related to Internet services.

Reply

  1. In its reply, UCG defended its claim, provided additional information for the costs it incurred, and filed a Form V clarifying that its total costs claim was for $12,542.20. This figure included $11,750 for consultant and analyst fees for 25 days as noted in Form III, but also $384 for meals during the hearing, and $408.20 for other disbursements (office expenses, photocopies, and intercity travel).
  2. Concerning its original limited filing through the Commission’s My CRTC Account, UCG submitted that it had difficulty using the system and sought to ensure all parties had received a copy of its application via email, including Northwestel.
  3. Concerning its representation of subscribers, UCG submitted that it was the only registered ratepayer group representing the Far North. Although UCG primarily represented the interests of Yukon residential and small business consumers, it submitted that its perspective was similarly applicable to all northern territories and the northern portions of some provinces. UCG further submitted that it brought a different perspective from the Public Interest Advocacy Centre (PIAC) due to its ability to advocate for northern interests and having a physical presence in the North. UCG also noted its longstanding history of participating in Commission proceedings as a public interest intervener.
  4. UCG provided additional information concerning its participation in the proceeding, including preparatory work and the division of work between UCG’s two in-house consultants. UCG clarified how the 17 days were allocated between Roger Rondeau and Bill Polonsky, with the remaining 8 days claimed for them to attend the hearing.
  5. UCG also provided supporting information concerning its claimed disbursements. UCG broke down its intercity travel claim, stating that between two vehicles, approximately 600 kilometres of travel was completed in order to meet with UCG administration, other members of the group, and the public at large, as well as to attend the hearing. Further, it submitted that $79 for several months of office expenses was minimal and conservative. Finally, UCG noted that its claim for meals was self-explanatory for two participants over four hearing days.

Commission’s analysis

  1. Pursuant to section 56 of the Telecommunications Act (the Act), the Commission is empowered to award costs incidental to proceedings before it and may order by whom and to whom any costs are to be paid.
  2. To give effect to this power, the Commission has made rules 60–70 in the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules of Procedure), which set out the criteria for how an applicant may apply for costs and how awards for costs will be granted by the Commission. The Commission has also published various documents to provide further information on how its costs process generally operates, including the Guidelines. The Commission generally does not depart from these Guidelines; this is to ensure that its costs regime is fair and predictable, and that it applies uniformly to all applicants and costs respondents.
  3. Nevertheless, the Commission also retains the power, pursuant to section 7 of the Rules of Procedure, to vary its approach when it is in the public interest to do so. The Commission can consider an application that does not conform to the Guidelines where there is sufficient information on the record for it to issue a determination and parties have had their procedural fairness rights respected, especially in knowing the case they must meet and have had the opportunity to do so.
  4. The Commission notes that the application for costs does not comply with the Guidelines. The initial filing made by UCG only included Form III (i.e., costs for consultant fees not including meals or disbursements), which on its own is generally not sufficient for an award of costs because it does not provide sufficient information for an applicant to demonstrate that it represented interested subscribers, supported the Commission in developing a better understanding of the matters under consideration, and participated in the proceeding in a responsible way. Moreover, such a filing does not generally serve to demonstrate that costs were necessarily or reasonably incurred.
  5. In almost all instances, such a scant filing through the My CRTC Account would not have provided enough information for the Commission and parties to the proceeding to evaluate the application. The Commission established the Guidelines, forms, and filing requirements to ensure that the public and all parties to the proceeding, and costs respondents in particular, have the necessary information to review and comment on a costs applicant’s claim.
  6. In the present case, since part of the application was received through My CRTC Account and the applicant circulated its application via email with additional information, the Commission is satisfied that parties had sufficient information to appreciate that an application had been received and were able to scrutinize the claim made by UCG. In particular, Northwestel—the party to which the proceeding was centrally aimed—had sufficient information to challenge the consultant and disbursement costs claimed by UCG, and did so while copying other potential costs respondents who would have received UCG’s initial Form III filing.
  7. In addition, the Commission considers that the entirety of the record contains sufficient information to assess whether costs were reasonably and necessarily incurred, and in accordance with section 68 of the Rules of Procedure.
  8. The Commission does not consider that applications circulated by email replace the need to file in accordance with existing Commission rules and guidelines. The Commission reminds costs applicants that incomplete and non-conforming filings may not be considered until they are properly filed, and that it retains the discretion to decline to award costs in their entirety when considering a deficient application or record.
  9. The criteria for an award of costs are set out in section 68 of the Rules of Procedure, which reads as follows:
    1. The Commission must determine whether to award final costs and the maximum percentage of costs that is to be awarded on the basis of the following criteria:


      (a) whether the applicant had, or was the representative of a group or a class of subscribers that had, an interest in the outcome of the proceeding;

      (b) the extent to which the applicant assisted the Commission in developing a better understanding of the matters that were considered; and

      (c) whether the applicant participated in the proceeding in a responsible way.

  10. In Telecom Information Bulletin 2016-188, the Commission provided guidance regarding how an applicant may demonstrate that it satisfies the first criterion with respect to its representation of interested subscribers. In the present case, UCG has demonstrated that it meets this requirement. The Commission notes that UCG is a consumer group and that the perspective it brought uniquely represents those of northern subscribers in the Yukon. Moreover, not only is that perspective and expertise applicable to those in the Yukon, but it is also transferable to subscribers in the other territories and the northern regions of provinces like British Columbia and Alberta. The Commission considers that when it reviews regional telecommunications services, it is particularly important for regional consumer advocates to bring forward their perspective, as the UCG did in the proceeding in question.
  11. UCG has also satisfied the remaining criteria through its participation in the proceeding. In particular, UCG’s submissions, especially regarding potentially mandating wholesale access to Northwestel’s network and the state of connectivity in Yukon communities, and the implications for public funding of network infrastructure, assisted the Commission in developing a better understanding of the matters that were considered.
  12. While the Commission has reduced costs for public interest interveners in the past, such as in Telecom Order 2017-376, it will generally only do so in cases where those costs were excessive and unnecessarily incurred and such an evaluation is undertaken on a case-by-case basis.
  13. The rates claimed are generally in accordance with the rates established in the Guidelines. Except for the $79 office expense, the Commission finds that the amount claimed by UCG was necessarily and reasonably incurred and should be allowed, which brings the total costs award to $12,463.20.
  14. The Commission notes that UCG claimed $792.20 for disbursements, including $79 for office expenses, $150 for photocopies, $179.20 for intercity travel ($0.35 per kilometre, for 512 km), and $384 for four days of meals for two persons to attend the hearing. While UCG did not file its disbursements properly in that they were not sworn, the Commission is satisfied that UCG is entitled to claim costs associated with the hearing as two UCG representatives did attend the hearing and were in plain view of the Commission.
  15. Concerning additional costs for travel prior to the hearing, the Commission notes that rural and northern communities are particularly reliant on travel by automobile and that UCG has only sought reimbursement for 512 km of travel when it has stated that the actual distance travelled was closer to 600 km.
  16. Finally, the Commission is satisfied that UCG incurred $150 in costs for photocopies for the totality of its participation and recognizes that some individuals and groups work more effectively with some amount of hard-copy material. While the Commission still considers that swearing a claimant’s disbursements is a requirement, it finds that in the present case, requiring this additional step would be inefficient and create more process for all parties without any material change to the Commission’s final determination.
  17. Concerning the $79 office expense, UCG did not provide enough information as to why this expense was necessarily and reasonably incurred for the purposes of its participation in the proceeding. UCG stated that it was a minimal and conservative expense for several months of consultations but did not provide the Commission with details about the nature of this expense and why it was required for its participation. As a result, the $79 charge is disallowed.
  18. Concerning the total 25 days claimed for UCG’s work, the Commission does not consider it to be excessive or unreasonable as alleged by Northwestel. The Commission has reviewed the preparation costs claimed in Form III and in UCG’s reply. It is satisfied that they were necessarily and reasonably incurred and not excessive.
  19. Within the 25 days, 8 were for the attendance and participation of two representatives at the hearing. The Commission notes that hearing attendance is often a vital part of a public interest intervener’s participation in a proceeding to ensure the Commission is fully apprised of the issues that may impact the interests of the class of subscribers the intervener represents. Specifically, regarding the 17 days of preparation time, the Commission notes that different interveners require different amounts of time to produce their submissions.
  20. This is an appropriate case in which to fix the costs and dispense with taxation, in accordance with the streamlined procedure set out in Telecom Public Notice 2002-5.
  21. The Commission has generally determined that the appropriate costs respondents to an award of costs are the parties that have a significant interest in the outcome of the proceeding and have participated actively in that proceeding.
  22. In the interim costs orders for the proceeding,Footnote 2 the Commission recognized that while Northwestel had a significant interest in the outcome of the proceeding and had actively participated in the proceeding, TELUS Communications Inc. (TCI) and other telecommunications service providers also had a significant interest and had actively participated in the proceeding. The Commission considers that this continues to be the case such that the appropriate costs respondents to UCG’s application for costs are Competitive Network Operators of Canada; Iristel Inc., on behalf of itself and its affiliate Ice Wireless Inc.; Northwestel; SSi Micro Ltd., doing business as SSi Canada; and TCI.
  23. In the interim costs orders, the Commission further considered that it was appropriate to allocate 70% of the costs to Northwestel and the remaining 30% to the other costs respondents based on their telecommunications operating revenues (TORs).Footnote 3 The Commission considers that this continues to be the appropriate allocation for UCG’s costs.
  24. However, as set out in Telecom Order 2015-160, the Commission considers $1,000 to be the minimum amount that a costs respondent should be required to pay, due to the administrative burden that small costs awards impose on both the applicant and costs respondents.
  25. Accordingly, the Commission finds that the responsibility for payment of costs should be allocated as follows:Footnote 4
    Company Proportion Amount
    Northwestel 70% $8,724.24
    TCI 30% $3,738.96

Directions regarding costs

  1. The Commission approves, with modifications, the application by UCG for costs with respect to its participation in the proceeding.
  2. Pursuant to subsection 56(1) of the Act, the Commission fixes the costs to be paid to UCG at $12,463.20.
  3. The Commission directs that the award of costs to UCG be paid forthwith by Northwestel and TCI according to the proportions set out in paragraph 37.

Secretary General

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