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Ottawa, 28 September 1988
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Taxation Order CRTC: 1988-6
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In re: Bell Canada - 1988 Revenue Requirement, Rate Rebalancing and Revenue Settlement Issues
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- and -
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Richard J. Gathercole and Joan E. Vance, for the B.C. Old Age Pensioners' Organization, Council of Senior Citizens' Organizations, 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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Peter J. Knowlton, for Bell Canada (Bell)
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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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This order constitutes the taxation of costs awarded to BCOAPO et al in the case of Bell Canada - 1988 Revenue Requirement, Rate Rebalancing and Revenue Settlement Issues and British Columbia Telephone Company - Revisions to TransCanada Rates Schedule and Revenue Settlement Issues, announced in CRTC Telecom Public Notices 1987-15 and 1987-28. Costs were awarded to BCOAPO et al by Telecom Costs Order CRTC 88-5, dated 11 February 1988, in accordance with subsection 44(1) of the CRTC Telecommunications Rules of Procedure. Therein, the Commission specified that the costs shall be paid 50% by Bell and 50% by B.C. Tel.
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BCOAPO et al submitted a Bill of Costs in the amount of $71,272.55, consisting of counsel fees of $39,030.00 and disbursements of $32,242.55.
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In the course of the taxation, which proceeded by way of written submissions, the following issues with respect to counsel fees were raised and discussed by the parties.
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Counsel Fees
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Bell did not object to the fees claimed for BCOAPO et al's senior counsel. However, B.C. Tel suggested that the fees claimed, $175 per hour for preparation and $950 per day for attendance, are excessive, particularly when compared to the $160 per hour and $900 per day allowed in Taxation Order 1987-3, regarding the company's 1986 Construction Program Review (CPR). B.C. Tel suggested that the daily fee should remain unchanged at $900 and the hourly fee should be increased, at most, to $165. According to the company, an hourly fee of $165 is particularly appropriate in view of the fact that the award in Taxation Order 1987-3 represented a 52% increase in fees over those allowed the year before that.
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Both Bell and B.C. Tel objected to the rates claimed for junior counsel, namely $100 per hour for preparation and $700 per day for attendance. In this regard, Bell and B.C. Tel noted that in Taxation Order 1987-1, $500 per day was allowed for junior counsel for another intervener. In this regard, B.C. Tel noted the relatively recent involvement of Ms. Vance in telecommunications regulatory proceedings, and Bell noted her limited participation in cross-examining witnesses at the hearing. Accordingly, both companies suggested that for attendance $500 per day would be appropriate. With respect to the $100 hourly rate claimed for preparation, Bell recommended that it be reduced proportionately. B.C. Tel suggested that $85 per hour would be appropriate.
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B.C. Tel also noted that the preparation time of 96 hours claimed by senior counsel exceeds the "established rule" of two days preparation for each day of attendance. Accordingly, the company suggested that senior counsel should be allowed 70 hours preparation time.
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In reply to B.C. Tel's comments regarding the fees of senior counsel, BCOAPO et al incorporated by reference the position it took on this issue in the 1987 B.C. Tel CPR proceeding. There BCOAPO et al had suggested, inter alia, that the fees claimed for senior cnunsel reflect only a modest increase over those allowed with regard to a previous proceeding, and that increases in previous years had been specifically approved by the taxing officers and are not relevant
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With regard to the ratio between preparation time and attendance , BCOAPO et al argued that the "rule" of two days preparation for each day of hearing is merely a rule of thumb, not intended to be a hard and fast rule in all cases. According to BCOAPO et al, this case raised service issues beyond those normally encountered in a revenue requirement proceeding. As Bell's rate rebalancing application was one of the most significant matters to come before the Commission in years, it warranted more extensive preparation than a revenue requirement hearing where similar issues arise each time. BCOAPO et al also advised that its senior counsel chose not to remain at the hearing any longer than was required for the purpose of cross-examinatinn and direct examination.
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With regard to the rates for junior counsel, BCOAPO et al noted that the junior counsel to which Taxation Order 1987-1 related had been called to the Bar only one year, and had no previous regulatory experience. By contrast, BCOAPO et al noted that Ms. Vance is a third year call and has significant previous regulatory experience. As well, rates have increased during the period since the proceeding to which Taxation Order 1987-1 relates.
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I consider that the appropriate starting point for determining the quantum of fees to be awarded to BCOAPO et al in respect to the preparation and attendance of 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 $900 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. In the circumstances, I am easily persuaded that strict adherence to the guideline of two days preparation for each day of attendance would not be appropriate. Accordingly, for senior counsel, I will allow $170 per hour for the requested 96 hours, totalling $16,320, and $950 per day for the requested 5 days of attendance, totalling $4,750.
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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, just over two years prior to this proceeding. She has litigation experience in several courts, and previous regulatory experience unrelated to telecommunications.
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I agree 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, for preparation and attendance $500 per day was allowed for junior counsel to another intervener. However, I also note that that counsel did not have previous regulatory experience and at the time had been called to the Bar only approximately one year previously. I also note that 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 99 hours, totalling $8,415, and $550 per day for attendance for the requested 8 days, totalling $4,400.
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Counsel Fees for Time Spent Travelling
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In the course of taxation, at my request the parties also addressed the issue of the extent, if any, to which I should allow counsel fees with respect to travel time not spent preparing.
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In this regard, B.C. Tel advised that it would not object to BCOAPO et al claiming for all travel time, provided the rate claimed is substantially lower than that claimed for preparation time, some of the travel time was spent preparing for the hearing and the time spent preparing was not otherwise included in calculating preparation time. If travel time is treated in this fashion, according to the company the allowed rate should be about 36% of the rate allowed for preparation, as was the case in Taxation Order 1987-1.
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If, on the other hand, travel time spent preparing is allowed at the same rate as other preparation time, the company argued that no costs should be allowed for that portion of travel time not spent in preparation. In this regard, B.C. Tel suggested that it should not have to pay if a traveller chooses to spend time not preparing for the hearing, for example working on other clients' files. Moreover, according to the company, in the courts taxing officers normally allow little or nothing for travel time. B.C. Tel provided a copy of an extract from the B.C. Supreme Court Rules, noting that the party and party tariff makes no allowance for travel time and that the solicitor and client tariff allows a maximum of $10 per hour and $70 per day for travel.
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Bell stated that it had assumed that a reasonable proportion of the travel time was spent preparing for the hearing, and so had not objected to the rates or amounts claimed by BCOAPO et al. The company noted that the tariffs of fees and disbursements in Ontario and Québec do not allow for travel time in assessing solicitors' fees.
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In reply, BCOAPO et al noted B.C. Tel's objection to non-preparation travel time being included at any rate. In this regard, BCOAPO et al argued that travel between Vancouver and Ottawa for the purpose of attending a Commission hearing requires counsel to travel at times when he or she would normally be doing other office work. On this basis, BCOAPO et al suggested that such costs should be allowed. BCOAPO et al advised that because not all non-preparation travel time in this proceeding took place during office hours, it was billed at a substantially reduced rate. BCOAPO et al also advised that the BC Tariff of Costs between solicitor and client does allow for up to $70 a day for travel of not less than 7 hours, and $10 per hour where travel is less than 7 hours a day.
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In conclusion, BCOAPO et al suggested that the travel time spent preparing should be allowed at the ordinary rates for preparation time, and that non-preparation travel time should be allowed at a lower rate, as it had claimed. However, should the taxing officer reject this position, BCOAPO et al suggested that preparation time spent during travel should be allowed at full preparation time rates rather than coming up with an arbitrary figure to be applied to all travel time in an attempt to reflect the fact that a portion of travel time is spent in preparation.
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Having considered the submissions of the parties, 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. 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 fees for travel time except to the extent it is used in Preparation.
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In this proceeding, BCOAPO et al advised that the portion of travel time spent preparing had been included in the time claimed for preparation. I am not prepared to allow fees for that portion of travel time not spent preparing, 18 hours in the case of senior counsel and 18 hours in the case of junior counsel.
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Costs as taxed
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I hereby tax the fees and disbursements, which are to be paid 50% by Bell and 50% by B.C. Tel, as follows:
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Fees
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Counsel, R. J. Gathercole $21,070.00
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Counsel, J.E. Vance 12,815.00
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Disbursements
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Expert witness fees
and disbursements,
Dr. William Melody 16,410.00
Photocopying and postage 635.08
Courier 778.49
Telephone 381.45
Transcripts 5,159.50
Taxi fares and parking 439.35
Accommodation and car rental 2,828.62
Meals 863.06
Air fares 4,656.00
Miscellaneous 91.00
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Total Fees and Disbursements $66,127.55
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Allan Rosenzveig
Legal Counsel
Canadian Radio-television and Telecommunications Commission
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