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Telecom Letter Decision
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Ottawa, 20 March 1990
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Telecom Letter Decision CRTC 90-3
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To: . SPARC et al
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B.C. Tel
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Re: Application to Review and Vary Telecom Costs Order CRTC 89-1
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Background
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On 12 April 1989, the Social Planning and Research Council of British Columbia and the Lower Mainland Alliance for Information and Referral Services (SPARC et al) submitted an application to the Commission pursuant to section 66 of the National Telecommunications Powers and Procedures Act requesting the Commission to review and vary Telecom Costs Order CRTC 89-1 (Costs Order 89-1). Specifically, SPARC et al requested the Commission to vary Costs Order 89-1, which awarded SPARC et al 60% of its costs, to award SPARC et al 100% of its costs.
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The costs awarded to SPARC et al in Costs Order 89-1 relate to its participation in the British Columbia Telephone Company (B.C. Tel) Revenue Requirement Proceeding for the years 1988 and 1989. In awarding SPARC et al 60% of its costs, the Commission stated in Costs Order CRTC 89-1 that
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it is not persuaded that SPARC et al has met the criteria ... with respect to all aspects of its participation in the proceeding. Specifically, the Commission considers that parts of SPARC's cross-examination were unfocused and too lengthy and that in general there was insufficient depth of knowledge in the cross-examination and final argument to contribute to a better understanding of the issues by the Commission.
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The approach employed by the Commission in determining whether to review and vary its telecommunications decisions was established in Bell Canada, Request to Review that Part of Telecom Decision CRTC 78-7 of August 10, 1978 Dealing with the Saudi Arabian Telephone Project, Telecom Decision CRTC 79-1, 2 February 1979, which adopted the report of a committee established by the Commission. The report concludes as follows:
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After consideration of the principles set out in the COMSOL case [AMOCO Canada Petroleum Co. Ltd. et al and Canadian Pacific Ltd. (1974) CTC 300] and other decisions, the Committee has concluded that the criteria to be considered for the exercise of its powers under s.63 would require that the applicant demonstrate, on a prima facie basis, the existence of one or more of the following:
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1. an error in law or in fact
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2. a fundamental change in circumstances or facts since the decision
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3. a failure to consider a basic principle which had been raised in the original proceeding
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4. a new principle which has arisen as a result of the decision.
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In addition, notwithstanding the lack of prima facie evidence that any of the above criteria had been met, it would also be open to the Commission under s.63 to determine that there was substantial doubt as to the correctness of its original decision and that reappraisal was accordingly warranted. This is not so much a fifth criterion, however, as it is a statement of the residual discretion which exists within s.63 (now s.66).
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In its review application SPARC et al submitted that the requested variance is warranted on the grounds that Costs Order 89-1 is based on a number of errors of law or fact, that there was a failure to consider a basic principle which had been raised at the revenue requirement proceeding and that there is substantial doubt as to the correctness of Costs Order 89-1. The Commission received an answer from B.C. Tel on the review application and SPARC et al submitted a reply.
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Application
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In support of its application, SPARC et al made the following submissions:
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1. It is an error in law to require SPARC et al to contribute to a better understanding of the issues
by the Commission with respect to all aspects of its participation in order to obtain full costs.
SPARC et al argues this is too onerous a burden and one not imposed previously on an
intervener.
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2. It is an error in law to discount the participation of SPARC et al in contributing to a better
understanding of the issues by the Commission where the implicit position of the Commission
is that after one or two representative public interest interveners have appeared the
Commission is not assisted by further similar interveners.
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3. The Commission erred in law by using a different standard for SPARC et al than for other
interveners to whom it awarded costs in determining who assisted it.
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4. The Commission erred in finding the cross-examination and argument of SPARC et al on
"straight-forward matters" displayed an insufficient depth of knowledge.
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5. The Commission erred in law when it accepted the reduction in costs asked for by B.C. Tel,
which reduction was based upon a comparison between SPARC et al in this hearing and the
National Anti-Poverty Organization (NAPO) in the Bell Canada - 1988 Revenue Requirement
proceeding where NAPO received only 50% of the costs of one counsel (Telecom Costs Order
CRTC 88-6).
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6. The Commission failed to consider how SPARC et al's intervention was adversely affected by
a basic principle raised in the original proceeding - the good faith and competence of B.C.
Tel's participation in the hearing.
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7. There is substantial doubt as to the correctness of Costs Order 89-1 because SPARC et al
think the Commission mistakenly believes counsel for SPARC et al and the counsel for B.C.
Old Age Pensioners' Organization, Council of Senior Citizens' Organizations of B.C., West
End Seniors' Network, Senior Citizens' Association, Federated Anti-Poverty Groups of British
Columbia and Local L-217IWA Seniors (BCOAPO et al) worked together but just split their
cases in order to increase the quantum of costs potentially recoverable. Further, SPARC et al
submit that no lawyer would act for the groups comprising SPARC et al when the prospect of
recovering fees after the fact is uncertain.
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B.C. Tel submitted that Costs Order 89-1 is correct and should not be varied.
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Conclusion
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The Commission concludes that SPARC et al has not demonstrated, on a prima facie basis, that Costs Order 89-1 contains an error in law or in fact or that there has been a failure to consider a basic principle which was raised in the original proceeding. Further, the Commission is satisfied there is not a substantial doubt as to the correctness of Costs Order 89-1.
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In response to SPARC et al's first submission, the Commission notes that an intervener must meet the three criteria identified in subsection 44(1) of the CRTC Telecommunications Rules of Procedure (Rules), one of which is that the intervener contribute to a better understanding of the issues by the Commission. Costs Order 89-1 was made pursuant to the Commission's authority in paragraph 44(5)(a) of the Rules to award only a portion of costs having regard to the circumstances of the case and the criteria set forth in subsection 44(1). Such a partial award of costs has occurred before and in fact SPARC et al's application refers to such a costs order.
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With respect to SPARC et al's second submission, Costs Order 89-1 does not discount SPARC et al's participation on the basis assumed.
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SPARC et al's third submission is that the Commission used a different standard in awarding costs to SPARC et al than it did in awarding costs to other interveners. The application does not demonstrate any difference with reference to other costs orders. As previously stated, the awarding of costs is based upon the criteria specified in the Rules, including whether the intervener contributed to the Commission's better understanding of the issues. It is a misunderstanding of what is involved in meeting this criteria to suggest, as SPARC et al has done, that the number of references that are made to the intervener in the proceeding decision, or the number of its positions "accepted" or "rejected", can be determinative of whether it has met the criteria.
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SPARC et al has not demonstrated that the findings in Costs Order 89-1 regarding the insufficient depth of knowledge of SPARC et al's counsel are in error. The Commission notes in passing that in its review application, SPARC et al states that its counsel was "a relative newcomer to the complex area of telephone regulation, and as such lacking the familiarity with the Commission's past decisions".
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With respect to SPARC et al's fifth submission that the Commission based its award of only a portion of SPARC et al's costs on a comparison with Telecom Costs Order CRTC 88-6, Costs Order 89-1 makes no mention of the earlier unrelated order. SPARC et al's award of costs was based upon the contribution it made to the Commission's better understanding of the issues in the proceeding.
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As for SPARC et al's sixth submission, an intervener's eligibility for costs is not based upon the quality of a regulated company's participation in a proceeding. In the proceeding at issue, SPARC et al's award of costs, and that of the other interveners, was based upon their having met the criteria of subsection 44(1) of the Rules.
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Finally, the Commission considers there is no substantial doubt as to the correctness of the Costs Order. There is for example, no evidence that the reduced award of costs was based upon a belief that SPARC et al and BCOAPO et al split their case to enhance the amount of costs for which they would be eligible. It is noted that BCOAPO et al was awarded all its costs related to the proceeding in Telecom Costs Order CRTC 88-10. SPARC et al submits that uncertainty that its costs would be fully recovered would mean no lawyer would act for it. The Commission appreciates the important role interveners can play in its proceedings and has provided for costs awards in order to assist that participation. However, it is clear from the Rules that costs in Commission proceedings are not awarded as of right but are at the discretion of the Commission in accordance with the criteria set forth in subsection 44(1), including that the intervener have contributed to the Commission's better understanding of the issues.
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Disposition of the Application
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In light of the above, the Commission concludes that SPARC et al has not demonstrated that there are any errors of law or of fact in Costs Order 89-1, that there was a failure to consider a basic principle which had been raised in the original proceeding or that substantial doubt exists as to the correctness of that Costs Order. Consequently, the Commission denies SPARC et al's application for review and variance of Costs Order 89-1.
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Fernand Bélisle
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