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Ottawa, 9 September 1993
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Taxation Order CRTC: 1993-7
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In re: BC TEL - Expansion of Toll-Free Calling and Restructuring of Local Rates in the Lower Mainland
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Carolyn McCool, for the B,C. Old Age Pensioners' Organization, the Council of Senior Citizens' Organizations, West End Seniors' Network, Senior Citizens' Association, Federated Anti-Poverty Groups of B.C. and Local 1-217 IWA Seniors (BCOAPO et al.).
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Ralph A. Davis for BC TEL.
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TAXATION OF COSTS OF BCOAPO et al.
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Taxing Officer: Barbara Ursel
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This order constitutes the taxation of costs awarded to BCOAPO et al. in the case of BC TEL - Expansion of Toll-Free Calling and Restructuring of Local Rates in the Lower Mainland, Telecom Decislon CRTC 93-7, 29 June 1993. Costs were awarded to BCOAPO et al. pursuant to Telecom Costs Order CRTC 93-2, 8 April 1993.
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BCOAPO et al. filed its Bill of Costs on 4 May 1993 in the amount of $9,122.22, consisting of $8,055 in counsel fees and $1,067.22 in disbursements.
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Written comments with respect to the costs claimed by BCOAPO et al. were submitted by BC TEL.
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In the course of the taxation, the following issues were raised and discussed:
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Counsel Fees
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BC TEL did not object to the time claimed by BCOAPO et al. for preparation or for attendance at the hearing. BCOAPO et al. claimed 27 hours preparation time (including preparation for the hearing and preparation of comments) and 2 days attendance at the hearing. BC TEL did, however, object to the rate requested for BCOAPO et al. counsel, both for preparation and attendance. In this respect, BCOAPO et al. claimed $205 per hour for preparation by its counsel, Carolyn McCool, and a per diem fee of $1,260 for Ms. McCool's attendance at the hearing.
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BC TEL submitted that the rates claimed for Ms. McCool were not appropriate in light of the fact that both the preparation and attendance rates claimed were at the same level as the rates awarded for Mr. Gathercole, former senior counsel for BCOAPO et al., in Taxation Order CRTC 1993-2. BC TEL submitted that Ms. McCool's rates should be lower in light of: (1) Ms. McCool's relative lack of seniority as compared to Mr. Gathercole (BC TEL pointed out that Mr. Gathercole was called to the bar in 1967; Ms. McCool in 1977), (2) Ms. McCool's relative lack of experience in telecommunications matters and practice before the Commission, and (3) the fact that this proceeding was less complex than the proceeding which led to Taxation Order CRTC 1993-2 (which was the case of Competition in the Provision of Public Long Distance Voice Telephone Services and Related Resale and Sharing Issues in which the Taxing Officer had noted that the proceeding involved "multiple interveners, a lengthy central hearing and related to matters that were complex and innovative requiring detailed preparatory work"). BC TEL concluded that Ms. McCool should not be awarded costs on the same basis as Mr. Gathercole, but on a reduced scale. BC TEL provided no indication, however, of the level of rates which it would find appropriate.
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In reply, BCOAPO et al. suggested that it was not inappropriate for Ms. McCool's hourly rate to be tied to that allowed for Mr. Gathercole in the proceeding which led to Taxation Order CRTC 1993-2 for the following reasons. BCOAPO et al. pointed out that the hourly rate awarded for Mr. Gathercole in Taxation Order CRTC 1993-2 was for work done in 1990 and 1991, two and three years before the work which is the subject of BCOAPO et al.'s current Bill of Costs. According to BCOAPO et al., the passage of time, in an inflation-sensitive society, has traditionally been seen to justify increases in rates. BCOAPO et al. also submitted that Ms. McCool was an experienced counsel, with extensive experience in the practice of administrative law and personal experience of the decision-making process itself having served one term as a member of an administrative tribunal. BCOAPO et al. did agree that Ms. McCool was "relatively inexperienced in telecommunications matters", but noted that she was not offered as an expert witness or consultant or professional from the telecommunications industry. BCOAPO et al. submitted that she was present as counsel for interveners whose significance is that they have no expertise in telecommunications matters and relatively little access to such expertise. Finally, BCOAPO et al. submitted that BC TEL's application to expand toll-free calling and restructure local rates in the Lower Mainland was a direct consequence of the Commission's decision in the long distance competition case on which Mr. Gathercole worked, as referred to above. In BCOAPO et al.'s submission, the same complex and technical issues arising out of a changing industrial and regulatory environment were incorporated into the Lower Mainland calling area application.
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I find that many of the BCOAPO et al. submissions regarding the appropriate level for Ms. McCool's fees are not convincing. What I did take into account is the fact that Ms. McCool has been called to the bar for fifteen years and is senior counsel. However, she has less general experience as counsel than Mr. Gathercole and much less experience as counsel in telecommunications matters.
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Furthermore, the preparation rate allowed for Mr. Gathercole in Taxation Order CRTC 1993-2 specifically recognized the complexity and innovative nature of the preparatory work involved in the long distance competition case. The attendance rate allowed in that Taxation Order similarly recognized the unique and difficult nature of the proceeding. I note, in passing, that rates for Mr. Gathercole have most recently been taxed in Taxation Order CRTC 1993-6 at a lower level than the level allowed for his work in the long distance competition case. It was the view of the Taxing Officer in Taxation Order CRTC 1993-6 that the rates in the long distance competition case were adjusted upwards to take into account the unusual scope and complexity of that proceeding. Similarly, I am of the view that the work required of Ms. McCool in the proceeding in question for the purposes of this taxation does not warrant rates at the same level as that awarded for Mr. Gathercole in Taxation Order CRTC 1993-2.
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Taking into account my conclusion on the relative complexity of this proceeding as well as Ms. McCool's administrative law experience, but noting her lack of experience in telecommunications matters and experience before the Commission, I have concluded that rates of $175 per hour for preparation and $1,075 per diem for attendance are appropriate for Ms. McCool in this proceeding.
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I am satisfied that the preparation and attendance time claimed by BCOAPO et al. is appropriate and I will therefore allow 27 hours of preparation time at $175 per hour, totalling $4,725, and 2 days attendance at the hearing at $1,075 per diem, totalling $2,150.
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Disbursements
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BC TEL submitted that the affidavit filed in support of the disbursements was deficient. BC TEL claimed that the affidavit itself did not indicate any personal knowledge of the deponent that the time spent or the disbursements were necessarily and properly incurred in relation to the proceeding. In reply, BCOAPO et al. stated that the affidavit of disbursements was proper given that the deponent stated that she had knowledge of the matters deposed to and that the disbursements were incurred in connection with the matter. I am satisfied with the affidavit as filed and therefore I have allowed the disbursements as claimed. I note that the disbursements claimed in the Bill of Costs included GST. I sought and obtained confirmation that BCOAPO et al. does not receive a rebate on GST paid and, therefore, I consider that the entire GST component is an allowable cost.
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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 $6,875.00
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Disbursements
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Photocopies $85.87
Postage 10.37
Courier 42.26
Fax 1.74
Parking 33.00
Transcripts 893.98
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Total Fees and Disbursements $7,942.22
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Barbara Ursel
Counsel
Canadian Radio-television and Telecommunications Commission
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