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Ottawa, 28 September 1988
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Taxation Order CRTC: 1988-5
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In re: British Columbia Telephone Company - Construction Program Review, CRTC Telecom Public Notice 1987-45 and Telecom Costs Order CRTC 88-2
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David McKendry and Janet Yale, for the Consumers' Association of Canada (CAC)Ralph A. Davis, for British Columbia Telephone Company (B.C. Tel)
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TAXATION OF COSTS OF CAC
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Taxing Officer:
Allan Rosenzveig
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This order constitutes the taxation of costs awarded to CAC in the case of British Columbia Telephone Company - 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 hearing, as evidenced by page 432 of the transcript. Costs were awarded to CAC by Telecom Costs Order CRTC 88-2, dated 19 January 1988, in accordance with subsection 44(1) of the CRTC Telecommunications Rules of Procedure.
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CAC submitted a Bill of Costs in the amount of $8,757.66, consisting of counsel fees of $2,590.00, financial analyst fees of $3,185.00 and disbursements of $2,982.66.
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The taxation proceeded by way of written submissions. B.C. Tel did not object to CAC's Bill of Costs, and stated that it was within the parameters approved in a previous Taxation Order. I note that the per diem rates claimed for preparation and attendance for both counsel and the financial analyst are the same as those that have been allowed for them in recent Taxation Orders.
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CAC claimed two days for travelling by each of counsel and the financial analyst to attend the review meeting, at $250 per day, totalling $1,000. In response to my query, CAC advised me that counsel and the financial analyst each spent the flight from Ottawa to Vancouver, preparing for the review hearing.
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During the course of the taxation, I invited the parties to address the general issue as to the extent, if any, to which I should allow counsel and analyst fees for travel time not spent preparing.
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B.C. Tel submitted that no amount should be allowed where no part of travel time is used for preparation. It advised that it did not object to travel time being compensated at the rate of $250 per day, which is substantially less than the rate claimed by CAC for preparation time. so long as some of the travel time is spent preparing for the hearing and is not otherwise included in calculating the preparation time. However, the company suggested that the rate claimed for travel time by CAC's financial analyst in this proceeding should be reduced somewhat, to conform with the 36% ratio between travel and preparation time allowed in Taxation Order 1987-1.
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B.C. Tel suggested that an alternative would be to allow costs for time spent preparing while travelling, but not for the portion of travel time not spent preparing. In support of this alternative, the company argued that it should not have to pay for time which a traveller chooses to spend not preparing, or working on other clients' files.
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The company also advised that in the courts, taxing officers generally allow little or nothing for travel time. In this regard, the company provided a copy of a portion of the B.C. Supreme Court Rules, noting that the party and party tariff of costs makes no allowance for travel time and that the solicitor and client tariff allows, for travel, a maximum of $10 per hour and $70 per day.
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In reply, CAC reiterated its view that the claim of $250 per day for travel time is appropriate. CAC again advised that some of the travel time was spent preparing for the hearing, and that this time was not otherwise included in the calculation of preparation.
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CAC disagreed with B.C. Tel's sugyestion that the basis for the $250 per diem rate allowed in Taxation Order 1987-1 for travel was that it was 36% of the rate allowed for preparation time. Acccording to CAC, as in that proceeding no breakdown as to the number of hours claimed for travel that were spent preparing was available, the taxing officer developed a proxy for this breakdown, based on the fees that had been allowed in Taxation Order 1985-3.
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According to CAC, costs should be allowed for all travel time, whether spent preparing or not, since such costs are reasonably and necessarily incurred by CAC as a result of its participation in the proceeding. However, if the taxing officer concludes that only the time spent preparing should be allowed, in the alternative CAC argued that as here the percentage of travel time devoted to preparation was known, such time should be compensated at the ordinary rate for preparation. In this regard, CAC specifically requested that its Bill of Costs be increased to reflect the fact that each of its counsel and financial analyst spent the westbound flight preparing for the proceeding.
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Having considered the submissions of CAC and B.C. Tel, I find myself in agreement with the principle, which underlies Taxation Orders 1985-3 and 1987-1, that travel time not spent preparing should not be allowed.
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I note that such time may be spent working for other clients, reading magazines, asleep or simply doing nothing. I do not consider that subscribers should be required to subsidize such activities. Accordingly, I am not prepared to allow counsel or analyst fees for travel time except to the extent it is used in preparation.
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Accordingly, and as requested by CAC, I will allow the time spent preparing while travelling at the normal rate for preparation. I note that flights from Ottawa to Vancouver do not take a full day and that it is difficult, if not impossible, to work throughout the flight. Accordingly, and as a proxy for a more precise statement of the amount of time spent preparing while travelling, I have decided to allow $350 and $275 for counsel and the financial analyst, respectively, with regard to travel time spent preparing. This is one-half of their daily rate for preparation.
Costs as Taxed
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I hereby tax the fees and disbursements as follows:
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Fees
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Counsel $2,440.00
Financial Analyst 2,910.00
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Disbursements
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Duplication 70.50
Courier 11.96
Air fare 2,176.00
Taxi 38.00
Hotel 475.20
Meals and Incidentals 211.00
2,982.66
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Total Fees and Disbursements $8,292.66
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Allan Rosenzveig
Counsel
Canadian Radio-television and Telecommunications Commission
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