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Ottawa, 14 February 1992
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Telecom Costs Order CRTC 92-1
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In re: AGT Limited (AGT) 1992 Review of Revenue Requirement/Application by Alberta Consumers Coalition (ACC) for Interim Costs
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On 12 December 1991, the Commission received an application for interim costs in the above-captioned proceeding from ACC which is a coalition of three organizations, namely the Consumers Association of Canada (Alberta) (CAC Alta), the Alberta Council on Aging and the Income Security Action Committee.
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ACC in its application, addressed the criteria set out in subsection 45(1) of the CRTC Telecommunications Rules of Procedure (the Rules), and submitted that they had met these criteria. ACC indicated that at the conclusion of the hearing, it will apply for final costs and that it recognizes that it will be liable to repay any interim costs not confirmed by the Commission in its decision on final costs.
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In addition, ACC submitted that due to its limited resources with which to finance its intervention, and given the unavoidable costs associated with a rate hearing, as well as the delay in recovering costs after the hearing's conclusion, ACC will experience severe financial difficulties in the absence of an interim costs award. Furthermore, an interim costs award will enable ACC to intervene more effectively than would otherwise be the case.
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AGT, in its 23 December 1991 answer to ACC's request for interim costs, stated that the principles enunciated in In re: Unitel Communications Inc. & B.C. Rail Telecommunications/Lightel Inc. - Applications to Provide Public Long Distance Voice Telephone Services and Related Resale and Sharing Issues: Applications for Interim Costs, Telecom Costs Order CRTC 91-4, 22 April 1991 (Cost Order 91-4) should govern ACC's application, and suggested that ACC's application is deficient in various respects. AGT suggested, for example, that:
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- Interim costs awarded pursuant to the Rules must be based on merit, not financial need;
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- Interim costs must be based on expenses actually (rather than yet to be) incurred;
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- Interim costs awards should not include counsel or other professional fees;
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- Interim costs awards should be limited to disbursements such as accommodation, transportationand photocopies;
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- ACC has not applied within 30 days of the filing of the regulated company's application, asrequired by subsection 45(1) of the Rules;
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- CAC Alta's interventions at AGT rate proceedings considered by the Public Utilities Board ofAlberta (PUB), were not in all cases helpful or useful from a public interest perspective. In thisrespect, two previous PUB costs awards only included a portion of the costs claimed;
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- The Commission, in Costs Order 91-4, stated that the performance of the Public InterestAdvocacy Centre (PIAC), the present counsel to ACC, had been somewhat uneven in recentyears and that in their last five costs applications, the Commission did not award the partiesrepresented by PIAC a full award of costs. Accordingly, and considering that ACC does notappear to have a record of prior appearance before the Commission, any interim award of costsshould not exceed 75% of the out-of-pocket expenses incurred by it;
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- ACC has not provided sufficient evidence demonstrating that it does not have sufficient financialresources available, to participate effectively without an interim award of costs. Accordingly, AGTrequested that ACC provide audited financial statements demonstrating the organizations'sources of funding, as well as all contractual arrangements between PIAC and ACCdemonstrating PIAC's authorization to represent ACC;
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- ACC should provide an explanation as to how it will obtain the necessary funds should it berequired to make a refund; and
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- There are no compelling grounds for an interim award of costs for proceedings that are relativelyshort in duration. However, should interim costs be awarded, these costs should be limited solelyto out-of-pocket expenses incurred by ACC, between the date of its application for interim costsand the conclusion of AGT's Revenue Requirement hearing.
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In its reply dated 2 January 1992, ACC submitted the following amongst other things:
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- The extent of interim costs awarded depends on the circumstances, and interim costs are notnecessarily limited to disbursements other than professional fees. In view of the fact that ACCintends to present evidence in the AGT proceeding, thereby adding to its expenses, to extendthe scope of interim costs beyond those awarded under Costs Order 91-4may well be justified;
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- The Commission has demonstrated in the past its willingness to consider interim costsapplications beyond the thirty day period provided in subsection 45(1) of the Rules which is inany case permissive in nature, not mandatory;
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- Although ACC has never participated in proceedings before the Commission, it has filedinterrogatories in the current proceeding;
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- CAC Alta does have a record of participation before the PUB. With regard to AGT's example where CAC Alta was only awarded approximately 50% of its billed costs, the PUB decision in question was a taxation decision regarding whether expense claims are excessive, not a decision to award only a potion of costs incurred;
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- The Consumers Association of Canada (CAC) interventions before the Commission haveconsistently been found to be satisfactory;
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- ACC's witness in this proceeding, Dr. Lawrence Gould, has appeared before the Commission inthe past and on each occasion the Commission determined that his evidence assisted theCommission in its understanding of the issues, and has consistently awarded costs for hisappearance;
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- AGT's comments regarding the degree to which CAC Alta's past interventions have reflected theorganizations it purports to represent should be dismissed as vexatious. CAC is widelyrecognized as a legitimate representative of Canadian consumers. Moreover, the CAC Altagroup as well as its two coalition partners in this proceeding are membership-based andmembership-driven;
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- AGT's request to provide audited financial statements and the authorizations PIAC has receivedto represent the coalition organizations is unnecessary and overly burdensome. All threecoalition organizations are non-profit ones, actively involved in a wide variety of issues in theprovince. They operate under severe financial constraints and do not have any funds available tofinance the intervention in question. ACC's contractual arrangements with PIAC, and withcounsel retained through PIAC, are subject to solicitor-client privilege; and
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- On the subject-matter of the length of the proceeding, ACC submits that the PUB awardedinterim costs in similar past proceedings, and that the Rules do not make the length of theproceeding a requirement for an award of interim costs. In any event, a three week hearing suchas is anticipated for AGT's rate hearing will likely result in costs of transcripts in excess of$6,000, and ACC's counsel as well as expert witnesses must travel by air and be accommodatedin hotels for three weeks.
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In Costs Order 91-4, the Commission found that it possessed thenecessary authority to make awards of interim costs, which it characterized as being only for the expenses already incurred, with the awards themselves being merit-based and subject to re-examination and adjustment at the conclusion of the main proceeding.
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The Commission notes that ACC, as a representative of residential consumers, is representative of a class of subscribers that has an interest in the outcome of the proceeding.
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Paragraph 45(1)(b) of the Rules requires an applicant for interim costs to demonstrate to the satisfaction of the Commission that it can contribute to a better understanding of the issues by the Commission. In determining whether an applicant has met this criterion, the Commission considers that reference should be made both to the applicant's performance to date in the proceeding in which an interim award of costs is sought, and to theapplicant's past performance in Commission proceedings.
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The Commission notes that ACC has never participated in Commission proceedings. In this proceeding, ACC has filed evidence and a number of interrogatories. While the evidence has not yet been tested, the Commission has in the past found similar evidence filed by CAC to be helpful.
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The Commission further notes that over the years, CAC's performance has been consistently satisfactory in those Commission proceedings for which it has made final costs rulings. In the circumstances, the Commission is satisfied that ACC can contribute to a better understanding of the issues by the Commission.
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The Commission is satisfied that ACC has met the criteria for eligibility set out in subsection 45(1) of the Rules. Accordingly, the Commission hereby grants the application of ACC for an award of interim costs on the following terms:
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1. The award is limited to disbursements, other than those relating to fees, incurred from 12December 1991 onwards, in connection with the intervention of ACC.
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2. ACC is awarded a maximum of $6,500 for the purpose of obtaining transcripts of theproceeding.
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3. ACC is awarded a maximum of $ 13,000 for other disbursements, excluding fees.
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4. ACC is directed to submit its accounts for expenses incurred and accounts are to beaccompanied by an affidavit of disbursements and supporting documentation.
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5. Upon receipt of the accounts and accompanying material, AGT is directed to pay the fullamount claimed. Payment is to be made forthwith, with reference to the maximum amountabove. Periodic accounts, if any, should be submitted no more than once monthly.
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6. ACC is further directed to apply orally for final costs at the time of final argument, and at thesame time to satisfy the requirements of subsection 45(4) of the Rules whether orally or inwriting.
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Allan J. DarlingSecretary General
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