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Ottawa, 8 March 1994
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Taxation Order CRTC: 1994-3
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In re: AGT Limited - Revenue Requirements for 1993 and 1994
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Phillipa Lawson, Public Interest Advocacy Centre on behalf of the Alberta Consumers' Coalition (ACC).
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TAXATION OF COSTS OF ACC
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Taxing Officer: Carolyn Pinsky
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This order constitutes the taxation of costs awarded to ACC in the case of AGT Limited - Revenue Requirements for 1993 and 1994, Telecom Decision CRTC 93-18 (Decision 93-18). Costs were awarded to ACC by Telecom Costs Order CRTC 93-16 (Costs Order 93-16), in accordance with subsection 44(1) of the CRTC Telecommunications Rules of Procedure.
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ACC submitted a Bill of Costs in the amount of $113,703.98 consisting of $30,152.60 in counsel fees, $9,463.08 in consultant fees, $58,422.00 in experts fees and $15,666.30 in disbursements.
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AGT did not file any submissions in response to ACC's Bill of Costs.
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Counsel Fees
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With respect to the work performed by counsel, ACC claimed 183 hours of preparation time at a rate of $110.0 per hour and 11.5 days spent in attendance at the hearing at a rate of $700 per day.
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Ms. Lawson's fees were increased in Taxation Order: 1993-5, 15 July 1993 (Order 1993-5), to an hourly rate of $100.00 from $95.00 per hour and to $630 per diem from $590.00 per diem for attendance at the hearing.
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I note that in Taxation Order: 1994-2, 8 March 1994, the claim for work by Ms. Lawson in relation to the Bell Canada proceeding was taxed at a rate of $105.00 per hour and $660.00 per diem, representing an increase of approximately 5% from the rates previously allowed. Given the short period of time between the Bell Canada proceeding and the AGT Limited proceeding, I do not consider that a further increase is warranted at this time. I will therefore allow an hourly rate of $105 and an attendance rate of $660.00 per diem.
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In my view, a wide range of factors should be considered in assessing the reasonableness of the total preparation time claimed, including the following: the number and complexity of issues considered in the proceeding and the number and complexity of the issues pursued by the applicant for costs; the number of interveners who participated in the proceeding; whether counsel for the applicant was assisted by a consultant or expert in preparing interrogatories, cross-examination and final argument; the level of expertise of counsel and the corresponding hourly rate, as well as the duration of the oral hearing.
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I note that, in the present case, counsel was assisted in her preparation of interrogatories, cross-examination and final argument, in relation to several of the issues canvassed by the applicant, by either a consultant or expert. Specifically, in addition to the 183 hours claimed for time spent by counsel preparing for the hearing, ACC has also claimed 53.60 hours for time spent by Mr. John Todd, and at least 14 days, or 98 hours, for time spent by Drs. Booth and Berkowitz, in relation to the preparation of interrogatories, cross-examination and final argument.
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In assessing whether the amount claimed for each of counsel, the consultant and the experts was necessarily and reasonably incurred, I have considered the total claim made by the applicant in relation to work performed in preparation of the intervention, exclusive of work relating to the evidence filed. I have considered separately the reasonableness of the claim made in relation to the preparation of the evidence filed as this work was done solely by Drs. Booth and Berkowitz.
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I also note that the matters in this proceeding were neither novel nor specially complex; rather, the issues in this hearing were typical of those considered in many revenue requirement proceedings.
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Having considered all of the factors noted above, and having compared the amount of preparation time awarded in previous taxation orders in light of the facts of each case, I find that the claim of ACC in respect of counsel's preparation time is in excess of that which was necessarily and reasonably incurred. I am prepared to allow 170 hours of preparation time, which I consider to be reasonable in the circumstances of this case.
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Consultant Fees
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ACC has claimed 53.60 hours at a rate of $165.00 per hour for the services rendered by Mr. John Todd. ACC argued that Mr. Todd's fees should be increased to $165.00, in recognition of the experience and expertise gained by Mr. Todd in telecommunications since 1990 when he was awarded $150.00, in addition to the inflation rate.
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I note that Mr. Todd was recently awarded an increase in his hourly fee from $150.00 to $155.00 in Taxation Order CRTC 93-11, 13 December 1993 for work performed in late 1992. Since the period of time between that proceeding and the current proceeding was approximately 7 to 9 months, I am of the view that no further increase is warranted at this time.
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Given that Mr. Todd's role was to assist counsel in preparing interrogatories, cross-examination, and final argument, I have examined the reasonableness of the amount of time claimed for work performed by Mr. Todd in light of my comments above regarding the time claimed for work by counsel. On that basis, I find that the amount of time claimed by ACC in respect of work performed by Mr. Todd to assist counsel in her preparation to be excessive. In the circumstances, I will allow 48 of the 53.6 hours claimed for work performed by Mr. Todd.
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Experts Fees
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In respect of work performed by Drs. Booth and Berkowitz, ACC has claimed a total of 46 days of preparation time at a rate of $1100 per diem and 2 days spent providing testimony at a rate of $2000 per diem.
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The fees allowed for work performed by Drs. Booth and Berkowitz were recently increased in Taxation Order 1994-2, 8 march 1994, to $995 per diem for preparation work and $1225 per diem for testifying. I do not consider that further increases are warranted at this time.
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I have therefore taxed the time claimed by ACC for work performed by Drs. Booth and Berkowitz at a per diem rate of $995.00 for preparation and $1225.00 for attendance.
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As noted above, ACC has claimed for 46 days of work performed by Drs. Booth and Berkowitz, in addition to 2 days for testimony. In its letter accompanying the Bill of Costs, ACC indicated that the claim relates only to work performed by Drs. Booth and Berkowitz in preparation for this particular case and that the time spent preparing the appendices to their evidence has been recovered in previous proceedings. I note that in Taxation Order CRTC 93-10, 18 October 1993, the Taxing Officer allowed a claim for only 22 days to recognize only that portion of the claim made in relation to the work performed by Drs. Booth and Berkowitz to update their evidence, in that case, to the circumstances of The New Brunswick Telephone Company.
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In assessing whether the costs claimed by ACC for 46 days of work performed by the experts who were engaged to prepare its evidence on rate of return were necessarily or reasonably incurred, I have compared the amounts claimed to those awarded in previous Taxation Orders for work performed by Drs. Booth and Berkowitz. At the same time, I have recognized that additional time was required in this proceeding to address the evidence filed by Dr. Avera. I note also that the evidence prepared in the proceeding leading to Decision 93-18 would have been assembled soon after, or thereabout, the appearance by Drs. Booth and Berkowitz before the Commission on the same topic in relation to Bell Canada.
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Finally, I have reviewed the claim made for work performed by Drs. Booth and Berkowitz in preparation of interrogatories, cross-examination and final argument, in light of my comments above regarding time spent by counsel and Mr. Todd in preparation of the hearing.
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In light of the foregoing, I find that the cost of 46 days, or 9 work weeks, for work performed by Drs. Booth and Berkowitz in relation to AGT Limited was neither necessarily nor reasonably incurred.
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In the circumstances, I find 35 days for the total amount of time spent by Drs. Booth and Berkowitz to be more reasonable.
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Disbursements
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In a letter dated 5 January 1993, counsel for ACC was asked to provide comments on the reasonableness of the cost of the ticket purchased for Ms. Lawson's return flight to Calgary. In her response of the same date, counsel for ACC indicated that she travelled business class from Ottawa to Calgary, which cost an additional $75.00 as compared to the cost of a return ticket at the economy class rate.
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ACC has also claimed the cost of two business class tickets for the return flights to Calgary by Drs. Booth and Berkowitz. I have been informed that the additional cost attributable to business class amounted to approximately $150.00.
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I agree with the view of the Taxing Officer set out in Taxation Order 1993-2, 15 March 1993 that business class air travel is not a necessary and reasonable cost to enable an intervener to participate in a Commission proceeding.
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I have therefore only allowed the cost of air travel at the economy class rate.
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Moreover, I note that, in the future, I would expect an applicant for costs to take advantage of a "seat sale" or other promotion to obtain the lowest possible airfare in the circumstances. I note that an open return ticket would not be necessary where, for example, the price of a "seat sale" ticket, combined with the penalty charge for changing the return portion of the ticket, would be less than or equal to the full economy fare.
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While no receipts were presented for meals claimed by ACC for counsel, I find the claim for a $30.00 per diem, for 17 days, to cover the full cost of counsel's meals, to be reasonable.
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Finally, I note that G.S.T. has been claimed by ACC at the rate of 7% in respect of both fees and disbursements. I obtained confirmation from counsel for the applicant that a 50% credit is available. I have therefore adjusted the claim made by ACC in respect of G.S.T. on fees and disbursements. I note that the fact that a 50% G.S.T. credit is available should be included in the Affidavit accompanying the Bill of Costs.
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I will allow the remaining disbursements as claimed.
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Costs as Taxed
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I hereby tax the fees and disbursements, including 50% G.S.T., as follows:
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Counsel Fees
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Phillipa Lawson
Preparation $17,850.00
Attendance $ 7,590.00
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G.S.T. $ 890.40
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Experts Fees
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Drs. Booth and Berkowitz
Preparation $34,825.00
Testimony $ 2,450.00
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G.S.T. $ 1,304.62
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Consultant Fees
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Mr. John Todd $ 7,440.00
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G.S.T. $ 260.40
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Sub-total $72,610.42
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Disbursements
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Expenses incurred by Todd $ 1,532.72
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Expenses incurred by Drs. Booth and Berkowitz $ 4,341.53
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Taxis (counsel) $ 160.75
Meals (counsel) $ 574.90
Travel (counsel) $ 2,105.28
Hotel (counsel) $ 1,458.38
Fax and Telephone (counsel) $ 161.95
Photocopies $ 860.41
Transcripts $ 2,829.00
Courier and Postage $ 273.51
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G.S.T. $ 498.69
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Sub-total $14,797.12
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Total Fees and Disbursements $87,407.54
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Carolyn Pinsky
Legal Counsel
Canadian Radio-television and Telecommunications Commission
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