ARCHIVED -  Taxation Order CRTC 99-4

Taxation Order

Ottawa, 21 September 1999

Taxation Order CRTC 99-4

In re: Form of Regulation for TELUS Communications (Edmonton) Inc. - Telecom Public Notice CRTC 98-3

File No.: 8085-RP0007/98

1.James A. Wachowich for Consumers' Coalition of Alberta (CACAlta).

Taxation of Costs of CACAlta

2.Taxation Officer: Margot Patterson

3.This Order constitutes the taxation of costs awarded to CACAlta in the proceeding initiated by Telecom Public Notice CRTC 98-3, Form of Regulation for TELUS Communications (Edmonton) Inc., 23 February 1998 (Public Notice 98-3).

4.In Telecom Costs Order CRTC 99-1, 18 February 1999 (Costs Order 99-1), costs were awarded to CACAlta in accordance with subsection 44(1) of the CRTC Telecommunications Rules of Procedure (the Rules), payable by TELUS Communications (Edmonton) Inc. (TCEI). Costs Order 99-1 provided that CACAlta is entitled to 75% of its costs in the proceeding initiated by Public Notice 98-3.

5.On 16 March 1999, CACAlta submitted its Bill of Costs in the amount of $59,330.11, consisting of $413.77 in disbursements and $58,916.34 in fees. A supplementary letter was filed with the Taxing Officer and copied on TCEI on 21 May 1999, clarifying that two parties who performed services for CACAlta were consultants, rather than expert witnesses as originally identified in the supporting documents to the Bill of Costs.

6.On 23 March 1999, TCEI filed its comments with respect to the costs claimed. TCEI contrasted the claim by CACAlta to a claim made by the Public Interest Advocacy Centre and Alberta Council on Aging (PIAC/ACA) for its costs as an intervener in the proceeding initiated by Public Notice 98-3. In the opinion of TCEI, the gross amount of the award to CACAlta (before the 25% reduction) should not exceed that awarded to PIAC/ACA. TCEI argued that CACAlta's involvement in the proceeding was significantly less than PIAC/ACA's, yet its total claim was 71% higher. TCEI argued that unlike PIAC/ACA, CACAlta did not produce relevant evidence. TCEI also noted the disparity in the number of analysts used by the respective interveners, and the fees claimed for the services of those analysts. This disparity was more noteworthy, in the view of TCEI, since CACAlta was not required to respond to any interrogatories during the proceeding. TCEI noted that CACAlta charged 10 hours, or $2,300, to prepare for a hearing when no hearing took place or was planned to take place. Finally, TCEI argued that CACAlta did not include any major study in its submissions that would justify the amount of hours it claimed, as compared to those claimed by PIAC/ACA.

7.On 7 April 1999, CACAlta filed its reply to TCEI's comments. CACAlta submitted that for a number of factual and legal reasons, it was improper for TCEI to suggest that the Commission rely on another party's costs to determine the taxation in this instance. In the view of CACAlta, such a comparison is unfair because an intervener does not know at the time it conducts its intervention exactly what resources other interveners are using, or vice versa. It also noted that each intervener takes a different position and focus in a proceeding. Moreover, CACAlta argued that TCEI would not propose that an intervener who billed less than another should be able to raise its costs to meet a higher claim.

8.CACAlta stated that there is no authority for making the type of comparison advocated by TCEI in the Rules. To do so, it argued, would be to fetter the Commission's discretion in dealing with other interveners.

9.With respect to TCEI's argument that CACAlta did not provide independent evidence in its submissions, CACAlta submitted that that concern had already been dealt with by the Commission when it determined that the amount awarded to CACAlta would be reduced by 25% in recognition of deficiencies in certain areas of its submissions.

10.With respect to TCEI's comments about the 10 hours charged to prepare for a hearing that did not take place, CACAlta submitted that those hours were spent preparing for a "paper hearing process", and could have been entered under the "review of file" heading on the costs application form.

Fees

a) Counsel Fees

11.CACAlta has claimed a total of $15,602.74 in fees for its legal counsel, Mr. Wachowich, consisting of 63.4 hours at an hourly rate of $230. The rate claimed is in accordance with the rates specified in the CRTC Legal Directorate Guidelines for the Taxation of Costs (the Guidelines). I consider this rate to be appropriate and will allow the rate as claimed.

b) Consultants' Fees

12.CACAlta claimed a total of $43,313.60 for its consultants, K&S Consulting Services (K&S) and Mr. Azad Merani. This amount represents a claim for K&S of 119.75 hours at an hourly rate of $160, and a claim for Mr. Merani of 133.25 hours at an hourly rate of $160. The rates claimed for K&S and Mr. Merani are in accordance with the rates specified in the Guidelines. I consider these rates to be appropriate in the circumstances and I allow these rates as claimed.

Preparation and Procedural Time

13.Despite CACAlta's argument to the contrary, I consider it both fair and helpful to compare its participation and claim for costs to that of PIAC/ACA, an intervener whose participation in this proceeding was roughly comparable to that of CACAlta. Comparison may be used by a Taxing Officer, as is done here, to provide a valid benchmark by which the participation of a particular intervener can be measured. Although no two interveners' participation will be identical, a Taxing Officer can look at the time claimed by two or more parties for a similar amount of work, and can derive a rough estimate of the amount of time which should have been required. Such a comparison arose, for example, in Taxation Order CRTC 96-4, In re: Implementation of Regulatory Framework - Splitting of the Rate Base and Related Issues, Telecom Decision CRTC 95-21 and Telecom Costs Order CRTC 95-9, in which a comparison of the applicant's participation with that of two other interveners resulted in a reduction in the time allowed.

14.In determining whether the time claimed by CACAlta can be said to be reasonably and necessarily incurred, I am of the view that, consistent with past practice, it is appropriate to consider the time claimed by CACAlta on a global basis as well as by category. In this regard, I note that CACAlta has claimed a total of 316.4 hours of preparation and procedural time for its counsel and consultants.

15.In my view, on a global basis, CACAlta's claim cannot be viewed as reasonable and necessary given its level of participation in this proceeding. By way of comparison, I note that PIAC/ACA claimed and was awarded a total of 220.8 hours for work performed in relation to this proceeding, constituting 22 hours for its counsel, 176.4 hours for its consultants and 22.4 hours for its analysts. I note that CACAlta submitted interrogatories to TCEI and a reply argument which were more extensive than those filed by PIAC/ACA. However, unlike CACAlta, PIAC/ACA was required to respond to interrogatories, and moreover submitted evidence that was considerably more comprehensive and detailed than that of CACAlta. I acknowledge that in Costs Order 99-1, the Commission reduced the amount awarded to CACAlta in recognition of deficiencies in certain areas of its submissions, including its evidence. This reduction, however, did not address the appropriateness of the number of hours claimed to prepare the submissions.

16.I base my conclusion that CACAlta has claimed an unreasonable and unnecessary number of hours not only on a global consideration of the claim but also by category claimed. Mr. Wachowich, K&S and Mr. Merani have, for example, claimed a total of 70.2 hours to draft the argument of CACAlta and a total of 96.25 hours for the preparation of its evidence. Counsel for PIAC/ACA and its analysts claimed a total of 24 hours to draft its argument and 37 hours to prepare the evidence it submitted.

17.In view of the considerable experience of Mr. Wachowich, K&S and Mr. Merani, the above disparity in hours claimed is difficult to justify. Mr. Wachowich is a lawyer of 12 years' experience. K&S and Mr. Merani, respectively, have 27 and 16 years' experience as consultants. I therefore conclude that the number of hours claimed is out of proportion to CACAlta's participation in the proceeding, and to the claimants' experience. In my view, a total time allowance of 240 hours for CACAlta is appropriate in the circumstances of this case.

18.In light of these considerations, I will allow 48 hours for Mr. Wachowich. I consider that the fairest and most suitable manner in which to apportion the time claimed by K&S and by Mr. Merani is to prorate the time claimed for each. I will accordingly allow 91 hours for K&S and 101 hours for Mr. Merani.

19.I acknowledge that the 10 hours spent by Mr. Wachowich in reviewing documentation and intervener evidence in preparation for the "paper hearing" process were wrongly recorded, and should have been itemized as time spent to "review file". These hours are consequently accepted as part of the claim, subject to the reduction as explained above.

Disbursements

20.In its Bill of Costs, CACAlta has claimed $413.77 for photocopies. I consider this amount to be reasonable and I will allow the disbursements as claimed.

Costs as taxed

21.I hereby tax the fees and disbursements of CACAlta at a rate of 75% of the amount allowed, inclusive of applicable taxes, as follows:

Legal Counsel Fees

Mr. Wachowich $11,812.80

Consultant Fees

K&S Consulting Services $15,579.20

Mr. Merani $17,291.20

Total Fees $44,683.20

Disbursements

Photocopies $413.77

Total Disbursements $413.77

Subtotal $45,096.97

Less 25% $11,274.24

Total Fees and Disbursements Owing $33,822.73

22.As noted above, pursuant to Costs Order 99-1, this amount is to be paid forthwith by TCEI.

Margot Patterson
Taxation Officer

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