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Ottawa, 28 September 1988
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Taxation Order CRTC: 1988-4
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In re: British Columbia Telephone Company - Construction Plan Review, CRTC Telecom Public Notice 1987-45 and Telecom Costs Order CRTC 88-1
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Richard J. Gathercole and Joan E. Vance, for the B.C. Old Age Pensioners' Organization, Council of Senior Citizens' Organizations, Senior Citizens' Association, Federated Anti-Poverty Groups of B.C., West End Seniors' Network and Local 217 of the I.W.A. Seniors (BCOAPO et al)
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Ralph A. Davis, for British Columbia Telephone Company (B.C. Tel)
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TAXATION OF COSTS OF BCOAPO et al
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Taxing Officer: Allan Rosenzveig
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T his order constitutes the taxation of costs awarded to BCOAPO et al in the case of British Columbia Telephone Company - 1987 Construction Program Review, announced in CRTC Telecom Public Notice 1987-45. Costs were acquiesced to by counsel for B.C. Tel at the close of the Construction Program Review (CPR) hearing, as evidenced by page 432 of the transcript. Costs were awarded to BCOAPO et al by Telecom Costs Order CRTC 88-1, dated 19 January 1988, in accordance with subsection 44(1) of the CRTC Telecommunications Rules of Procedure.
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BCOAPO et al submitted a Bill of Costs in the amount of $9,979.98, consisting of counsel fees of $9,965.50 and disbursements of $14.48.
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In the course of the taxation, which proceeded by way of written submissions, the following issues, regarding the fees claimed for counsel to BCOAPO et al, were raised and discussed by the parties.
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Counsel Fees
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B.C. Tel objected to the rates claimed by BCOAPO et al for preparation and attendance at the review meeting by its senior counsel, Mr. Gathercole. BCOAPO et al claimed, with respect to him, a rate of $175 per hour for preparation and $950 per day for attendance. According to B.C. Tel, the increases in such fees over those allowed in the two previous years are excessive, particularly when considered on a precentage basis. For example, the company noted that the hourly fee for preparation time is 66.7% higher than that allowed in Taxation Order 1986-3, and 9.4% above the rate approved in Taxation Order 1987-3. Accordingly, B.C. Tel suggested that the hourly fee for preparation time remain at $160 or, at most, be increased to $165. Moreover, B.C. Tel suggested that the daily rate for attendance remain unchanged, at $900, from that allowed in Taxation Order 1987-3. In this regard, the company noted that the rate charged by counsel for the Consumers' Association of Canada (CAC), is only $800 per day. B.C. Tel did acknowledge that CAC's counsel is more junior.
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B.C. Tel also suggested that the total fees claimed by BCOAPO et al ($9,965.50) are excessive, both when compared to the amounts allowed in previous years (Taxation Order 1986-3 allowed $3,497.50, Taxation Order 1987-3 allowed $3,516.00) and to those claimed by CAC in this proceeding ($4,775.00). According to the company, the increase over the previous CPR appears to result from the fact that this year BCOAPO et al was represented by two counsel, rather than one counsel and a legal assistant, and that most of the preparation work this year was done by senior counsel rather than the legal assistant. In this regard, B.C. Tel also noted that senior counsel's preparation time this year exceeds the guideline of two days preparation for each day of attendance at the hearing.
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Suggesting that the CPR process is relatively informal and does not involve many legal issues, B.C. Tel argued that it is not "reasonable and necessary", within the meaning of paragraph 44(6)(b) of the CRTC Telecommunications Rules of Procedure, for an intervener to have two counsel involved. According to the company, BCOAPO et al would make the same contribution with less cost if the second counsel were replaced by a legal assistant, financial analyst or other person with relevant expertise.
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Accordingly, the company suggested that the total fees claimed by BCOAPO et al should be reduced to bring them into line with the fees charged by CAC. Alternatively, the total fees allowed should be determined by calculating what they would have been:
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a) had junior counsel's duties been performed instead by a legal assistant; and
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(b) had senior counsel not exceeded the guideline of two days preparation for each day of attendance.
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In reply, BCOAPO et al suggested that the fees claimed for senior counsel reflect only a modest increase over those allowed with regard to the previous CPR. Moreover, increases in previous years had been specifically approved by the taxing officer and are not relevant. As for the differential between the rates claimed by counsel for BCOAPO et al and for CAC, it was noted that in previous taxations the taxing officer had recognized that a difference in counsel fees based on years of call to the Bar is appropriate .
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BCOAPO et al suggested that the main reason for the increase in the Bill of Costs this year is the fact that most of the preparation work was done by senior counsel rather than a legal assistant. In this regard, BCOAPO et al pointed out that the legal assistant who was involved in the previous CPR is no longer employed by the B.C. Public Interest Advocacy Centre, and that junior counsel for whom fees are claimed recently joined the Centre and has limited telecommunications experience. According the BCOAPO et al, the preparation time is reasonable, considering the significance of the issues involved in this CPR. In this regard, it was noted that there had been no revenue requirement hearing since 1985, and that this CPR occurred in a year when no revenue requirement hearing was scheduled.BCOAPO et al also noted that the total preparation time for both counsel was well below the general rule of two hours preparation for each hour of hearing time.
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BCOAPO et al rejected B.C. Tel's suggestion that an intervener should not have two counsel preparing for and attending a CPR hearing. Pointing out that B.C. Tel did not object to the involvement of two persons on behalf of BCOAPO et al, so long as one of them is not a lawyer, BCOAPO et al submitted that the company has no right to dictate to an intervener who should represent it in a proceeding before the Commission. BCOAPO et al also noted that in this proceeding B.C. Tel had two counsel present (the Director of Revenue Requirements being a lawyer and having assumed the role of counsel), and suggested that it is up to each participant to determine who can best represent its own case. BCOAPO et al pointed out that five different interveners were represented by its two counsel, which provides B.C. Tel with substantial savings since the interveners could have chosen to intervene separately and be separately represented.
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With regard to B.C. Tel's specific suggestion that the fees allowed should be determined by calculating what they would have been had junior counsel's duties been performed by a legal assistant, BCOAPO et al also noted that the preparation time of junior counsel was limited and she was not present throughout the hearing. Also, the experience gained by junior counsel with regard to this CPR would likely result, in the future, in her assuming a larger portion of the workload, which would lead to a reduction in the counsel fees claimed.
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In reply to B.C. Tel's suggestion that the fees claimed by BCOAPO et al be reduced to bring them into line with those of CAC, BCOAPO et al submitted that the amount claimed by other interveners, while not completely irrelevant, is a minor consideration. According to BCOAPO et al, each Bill of Costs must be considered on its own merits. BCOAPO et al also noted that in the past its fees have not exceeded CAC's, and suggested that B.C. Tel appears to consider CAC's costs to be the appropriate standard for the reasonableness of those of BCOAPO et al only where the amount claimed by CAC is lower than that claimed by BCOAPO et al.
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I will begin with B.C. Tel's suggestion that it is not "reasonable and necessary" for BCOAPO et al to have employed two counsel, and that the fees allowed should be determined by substituting those of a legal assistant for those of junior counsel. I agree with the company that the CPR process is relatively informal. This does not mean, however, that the CPR process does not involve legal issues or matters which are less complex than those associated with a rate case hearing. Indeed, I note that formerly the CPR process was carried out in the context of rate case hearings and that in recent years a less formal setting was chosen by the Commission in large part because of the complexity of the matters involved in the CPR. In rate case proceedings, the Commission has awarded the costs of more than one counsel to a single intervener. In the circumstances, I do not consider it unreasonable or unnecessary for BCOAPO et al to have employed two counsel with regard to this CPR.
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The total fees claimed by BCOAPO et al substantially exceed those in the previous CPR proceeding. However, I do not consider this increase to be unreasonable in the circumstances. I note that the major reason for the increase is the fact that this year most of the preparation was done by senior counsel, as the legal assistant who had extensive telecommunications experience is no longer employed by the B.C. Public Interest Advocacy Centre and junior counsel recently jointed the Centre and has limited telecommunications experience.
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Senior counsel's preparation time marginally exceeds the relationship allowed in Taxation Order 1984-2 of two days preparation for each day of attendance. However, I note that the guideline of two days preparation for each day of attendance is exactly that, a guideline, and consider that slavish adherence to it in all circumstances would be neither realistic nor appropriate. In the circumstances of this proceeding, I consider the amount of time claimed for preparation by senior counsel to be reasonable.
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While I consider that the amount claimed by other interveners has some relevance, in the circumstances I am not persuaded that BCOAPO et al's costs should be reduced to bring them into line with those of CAC.
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I have decided that the appropriate starting point for determining the quantum of fees to be awarded to BCOAPO et al in respect of preparation and attendance by its senior counsel for this proceeding should be the costs awarded in Taxation Order 1987-3, with increments for inflation and added experience. There, the amounts allowed for preparation and attendance were $160 per hour and S900 per day, respectively. Here, BCOAPO et al claimed $175 per hour for preparation and $950 per day for attendance. I find the increase claimed for preparation to be excessive, but not the increase claimed for attendance. I have decided to allow rates of $170 per hour for preparation and $950 per day for attendance. Accordingly, for senior counsel, I will allow $170 per hour for the requested 35.5 hours of preparation, totalling $6,035, and $950 per day for the requested 2 days of attendance, totalling $1,900.
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I consider the rates claimed with respect to BCOAPO et al's junior counsel, Ms. Vance, namely $100 per hour for preparation and $700 per day for attendance, to be excessive. Ms. Vance was called to the Bar in 1985, some two and a half years prior to this proceeding. She has litigation experience in several courts, and previous regulatory experience, including participating in the rate rebalancing aspects of the Commission proceeding which led to Telecom Decision CRTC 88-4. I consider that previous taxations are also relevant in determining the appropriate rates in this proceeding. In this regard, I note that in Taxation Order 1987-1, dated 19 January 1987, $500 per day for preparation and attendance was allowed for junior counsel to another intervener. However, that counsel did not have previous regulatory experience and at the time had been called to the Bar only approximately one year previously. As well, fees will tend to increase with the effluxion of time. In the circumstances, I have concluded that for preparation and attendance fees of $85 per hour and $550 per day, respectively, are warranted. Accordingly, I will allow for preparation $85 per hour for the requested 8 hours, totalling $680, and $550 per day for attendance for the requested 1.5 days, totalling $825.
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Disbursements
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B.C. Tel did not object to the amounts claimed by BCOAPO et al for disbursements.
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Costs as Taxed
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I hereby tax the fees and disbursements as follows
Fees
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Counsel $9,390.00
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Disbursements
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Duplication $ 2.00
Taxi 8.25
Postage 3.24
Telephone .99
$ 14.48
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Total fees and disbursements $9,404.48
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Allan Rosenzveig
Legal Counsel
Canadian Radio-television and Telecommunications Commission
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