ARCHIVED -  Telecom Costs Order CRTC 87-5

Telecom Costs Order

Ottawa, 3 September 1987

Telecom Costs Order CRTC 87-5

In Re: Bell Canada and British Columbia Telephone Company - Rate Rebalancing and Revenue Settlement Issues

On 10 June 1987, the Lower Mainland Alliance of Information and Referral Services, the B.C. Library Association and the Social Planning and Research Council of British Columbia (LMAIRS et al) applied for an interim award of costs to participate in the Rate Rebalancing and Revenue Settlement proceeding. In its application, LMAIRS et al addressed the criteria set out in section 45 of the CRTC Telecommunications Rules of Procedure (the Rules) for an interim award of costs. LMAIRS et al requested an interim award in the amount of $35,000.

Bell Canada (Bell) provided its answer to the application on 29 June 1987. Bell argued that the Commission has no jurisdiction to make an interim award of costs, citing Regional Municipality of Hamilton-Wentworth v. Hamilton-Wentworth Save the Valley Committee Inc. (1985), 51 O.R. (2d) 23, a decision of the Ontario Divisional Court. In addition, Bell argued that LMAIRS et al is not a party which would receive a benefit, nor suffer a detriment, as a result of any order or decision made directing Bell to do anything in the course of the current proceeding. Thus, in Bell's estimation, LMAIRS et al should fail in its application for an interim award of costs even on the basis of the Commission's own criteria, set out in section 45 of the Rules.

On 13 July 1987, British Columbia Telephone Company (B.C. Tel) submitted its answer to the application. B.C. Tel agreed with the submissions of Bell concerning the jurisdiction of the CRTC to award costs on an interim basis. In addition, B.C. Tel took issue with the interest that the applicant would have in relation to B.C. Tel in this proceeding, since B.C. Tel has made no application to the Commission relating to rate rebalancing, the subject matter of interest to LMAIRS et al.

LMAIRS et al filed its reply to the answers of Bell and B.C. Tel on 24 July 1987. In its reply, the applicant specified that the interim award which it requests would entail progress payments being made by the regulated companies to the applicant, after specific work had been accomplished. In the view of LMAIRS et al, this approach is clearly distinguishable from the circumstances in the Regional Municipality of Hamilton-Wentworth case, where the Board "attempted to fund interventions rather than to provide costs". Finally, LMAIRS et al noted that, in practical terms, it had an interest in the outcome of these proceedings, since these hearings will be the only opportunity that the Commission will have to assess the overall impact of rate rebalancing.

In the Commission's view, the application by LMAIRS et al is not readily distinguishable from the Regional Municipality of Hamilton-Wentworth case on the basis submitted by the applicant. The facts relied upon by the Ontario Divisional Court include the concept of progress payments.

However, Regional Municipality of Hamilton-Wentworth may be distinguished, in the Commission's view, from an award made pursuant to section 45 of the Rules by virtue of the requirement in subsection 45(4) to file an application for an award of costs pursuant to subsection 44(2) of the Rules. This provision imports into an interim award of costs the requirement to satisfy the Commission after the completion of a hearing that all of the requirements of subsection 44(1) are met.

This interaction between an interim and final award of costs does not appear to have been before the Ontario Divisional Court in Regional Municipality of Hamilton-Wentworth. At the same time, however, the relationship between an award made under section 45 and an award confirmed or varied under section 44 of the Rules relies upon an interpretation of subsection 57(2) of the National Transportation Act which currently is cast in doubt by virtue of the decision of the Federal Court of Appeal in Bell Canada v. CRTC, unreported, a decision of the Federal Court of Appeal rendered 10 July 1987.

Accordingly, the Commission has determined, pending further proceedings in the Bell Canada v. CRTC case, that it lacks the jurisdiction to grant an interim award of costs pursuant to section 45 of the Rules. With reluctance, therefore, the application by LMAIRS et al is denied.

Fernand Bélisle
Secretary General