|
|
|
Ottawa, 30 September 1985
|
|
Taxation Order CRTC 1985-5
|
|
In re: British Columbia Telephone Company - General Increase in Rates, Telecom Decision CRTC 85-8, 30 April 1985
|
|
Jack Woodward, for the Greater Vancouver Association of the Deaf and the Western Institute for the Deaf (WID et al)
|
|
P.W. Butler, for British Columbia Telephone Company (B.C. Tel, the company)
|
|
TAXATION OF COSTS OF WID ET AL
|
|
Taxing officer: Allan Rosenzveig
|
This order constitutes the taxation of costs awarded to WID et al in the case of British Columbia Telephone Company - General Increase in Rates, Telecom Decision CRTC 85-8, 30 April 1985 (Decision 85-8). Costs were awarded to WID et al on 12 March 1985, at the close of the central hearing, in accordance with section 44 of the CRTC Telecommunications Rules of Procedure.
|
|
WID et al submitted a Bill of Costs in the amount of $17,712.36, consisting of fees of $15,627.50 and disbursements of $2,084.86. In the course of the taxation, which proceeded by way of written submissions, the following issues were raised and discussed by the parties.
|
|
Fees
|
|
B.C. Tel questioned the amount of time claimed and the rates charged for preparation and attendance by counsel for WID et al.
|
|
With regard to preparation, B.C. Tel suggested that only 3 days preparation time should be allowed. The company argued that the narrowness of WID et al's interest and participation at the hearing did not require the 87 hours preparation claimed, and that the purpose of WID's intervention was to prematurely raise issues with regard to the Message Relay Centre (MRC) that could have been dealt with in a separate proceeding.
|
|
In reply, WID et al pointed out that the award of costs did not specify that costs should be limited because of the scope of the intervention, and argued that its intervention related in part to general issues with respect to the general rate increase application. With regard to the company's submission that MRC issues need not have been introduced into the proceeding, WID et al noted that the Commission had decided to award costs to it, and suggested that the intervention was appropriate and of assistance to the Commission in deliberating upon those issues. Counsel for WID et al advised that preparation time was rendered more time-consuming by the necessity of having interpreters present at meetings with his clients, that the time claimed was based on records of actual time spent, and that the 87 hours represents a ratio of approximately one hour preparation to one hour of hearing time.
|
|
With regard to the company's suggestion to the effect that the time submitted for preparation should be reduced on the basis that MRC issues need not have been introduced into the proceeding, I note that in awarding costs to WID et al, the direction to the parties did not indicate that only a proportion of costs were being awarded.
|
|
WID et al claimed fewer hours of preparation with regard to participation at the pre-hearing conference and the central hearing than did the Consumers' Association of Canada and the Federated Anti-Poverty Groups of British Columbia and associated organizations. I also note that the amount of preparation time required by WID et al would have been increased somewhat by the need for interpreters during consultation between counsel and client. On the other hand, WID et al did not intervene on a broad range of issues, and the extent of its participation in the proceeding was somewhat limited. In all the circumstances, I have concluded that 80 hours preparation time would be reasonable in connection with the intervention and accordingly, I allow 80 hours for preparation.
|
|
B.C. Tel did not question whether counsel for WID et al had been present at the hearing for the 7 days and 5 half-days claimed. Rather, the company suggested that a total of 5 days would have been adequate; 2 days to hear and cross-examine Mr. David Carter, 1 day for the WID et al evidence, and 2 days for argument.
|
|
In reply, WID et al suggested that in the interests of restraint, costs had been kept to a minimum by not attending approximately one-half of the hearing days. WID et al pointed out that B.C. Tel would not allow any time for attendance at the pre-hearing conference, at the first two days of the hearing during which time WID et al cross-examined a panel of witnesses, or for its cross-examination of Mr. Roy Osing. WID et al advised that only 2.5 hearing days had been claimed in connection with Mr. Carter, stating that his evidence was spread over 3 days, and that a half-day was spent interviewing him prior to cross-examination.
|
|
In all the circumstances, I find that attendance for 7 days and 5 half-days is reasonable and necessary.
|
|
B.C. Tel questioned the quantum of the fees requested for preparation and attendance, namely $95.00 an hour and $775.00 a day, respectively. The company suggested that $500.00 a day for preparation and $600.00 a day for attendance would be more appropriate, stating that this was "the first foray into the regulatory world" by counsel for WID et al.
|
|
In reply, WID et al argued that the quantum of fees suggested by the company would be appropriate for an inexperienced and junior counsel in Vancouver. Counsel for WID et al advised that he was called to the Bar in 1979, has argued cases in various courts, including the British Columbia Court of Appeal and the Supreme Court of Canada, and has appeared before various regulatory boards and tribunals. He noted that the rates claimed are reduced from those charged to his normal commercial clients.
|
|
I note that counsel for WID et al was called to the Bar in 1979, has previous regulatory experience, and has argued cases in a broad range of courts. In view of past taxations, and of all the circumstances of the case, I find that $85.00 per hour is warranted for preparation and that $750.00 per day is warranted for attendance. Accordingly, I will allow for preparation $85.00 per hour for 80 hours, and for attendance $750.00 per day for the 9.5 days claimed, totalling $13,925.00.
|
|
Disbursements
|
|
B.C. Tel objected to the $731.30 claimed for photocopying and binding of materials, and suggested that only $250.00 be allowed. In support, the company pointed out that the submission and argument were not lengthy, and need not have been bound. Similarly, B.C. Tel felt that the $225.36 claimed for staff overtime with respect to final argument was not a necessary expense on the basis that it was not necessary to have the argument typed and bound for distribution. The company suggested that of the $1,070.00 claimed as expenses relating to the MRC, only the $368.00 for interpreting services should be allowed. According to B.C. Tel, the other costs are not appropriate because they should have been submitted as part of a separate proceeding related specifically to the MRC.
|
|
In reply, counsel for WID et al suggested that in his experience, courts expect lengthy argument to be reduced to writing and to be presentably copied and bound. He saw no reason to treat the Commission differently in this regard. WID et al advised that the expenses claimed relating to the MRC cover the costs of the intervention, not MRC operations.
|
|
At central hearings with respect to general rate increase applications, applicants and interveners generally do not distribute bound copies of their written submissions and argument. I find that it was not necessary to incur the expense of binding and copying for distribution, and the associated overtime. As suggested by B.C. Tel I will, however, allow $250.00 with respect to these costs. I will also allow the expenses claimed in respect to the MRC, noting WID et al's statement that they were incurred in connection with its intervention.
|
|
B.C. Tel did not object to the other costs claimed by WID et al for disbursements.
|
|
Costs of Taxation
|
|
WID et al submitted that an additional amount considered reasonable by the taxing officer should be awarded for costs of the taxation process "in order to impress upon the company that costs awards are to be taken seriously". In this regard, WID et al claimed 1 hour, advising that this was the time spent preparing the Bill of Costs and the supporting Affidavit.
|
|
In response, B.C. Tel pointed out that this was the first occasion on which an intervener had made such a request. The company noted that in the past all parties had agreed to dispense with the need for a formal taxation hearing in order to save costs, and submitted that costs should not be granted for preparing a Bill of Costs and supporting Affidavit. B.C. Tel did acknowledge that counsel for WID et al had probably spent considerably more time than the 1 hour claimed.
|
|
This appears to be the first occasion in which an intervener in a proceeding before the Commission has requested costs related to the taxation process. However, I do not read the CRTC Telecommunications Rules of Procedure or the award of costs to WID et al in this proceeding as precluding me from allowing costs incurred in the taxation process. The costs requested by WID et al were reasonably and necessarily incurred in connection with its intervention. I would be reluctant to allow the requested costs if the courts never allowed costs associated with taxations. In this regard, I note that in Smerchanski v. Minister of National Revenue (1977), 20 N.R. 257, on an application for review the Federal Court of Appeal allowed costs for preparation for taxation on the basis of paragraph 2(1)(c) of Tariff B of the Federal Court Rules.
|
|
While the costs incurred in the taxation process are likely to be higher where there is a formal taxation hearing, I see no reason for refusing costs here on that basis. In all the circumstances, I allow $40.00 for preparation of the Bill of Costs and supporting Affidavit.
|
|
Costs as Taxed
|
|
I hereby tax the fees and disbursements as follows:
|
|
Fees
|
|
Counsel $13,925.00
|
|
Disbursements
|
|
Taxi 18.10
|
|
Courier 7.60
|
|
Duplication and binding 250.00
|
|
Costs of taxation 40.00
|
|
Miscellaneous expenses 32.50
|
|
MRC intervention expenses 1,070.00
|
|
Total Fees and Disbursements $15,343.20
|
|
Allan Rosenzveig
Counsel
Canadian Radio-television and Telecommunications Commission
|
|
|