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Costs Order CRTC 2001-3

  Ottawa, 20 February 2001

Subject: TELUS Part VII application for interim access to public rights-of-way located in the City of Toronto

  Reference: 8690-T50-01/99 and 4754-178
  Application for costs by the City of Edmonton.
1. The Commission received an application for costs, dated 25 April 2000, from the City of Edmonton (Edmonton). Edmonton seeks costs in respect of its intervention in the Part VII application filed on 23 December 1999 by TELUS Integrated Communications Inc. against the City of Toronto requesting interim access to public rights-of-way in the City of Toronto. TELUS ultimately withdrew its Part VII Application on 13 April 2000, following a negotiated settlement between TELUS and the City of Toronto.
2. TELUS filed an answer on 28 April 2000 to which the City of Edmonton replied on 8 May 2000.
 

Positions of parties

3. Edmonton submitted that it had met the criteria for costs as set out in section 44 of the CRTC Telecommunications Rules of Procedure (the Rules) in that:
  a) it represented its citizens - a group of property tax ratepayers - who form the broad spectrum of telecommunications users with an interest in the outcome of this proceeding;
  b) it had participated in a responsible way; and
  c) it had contributed to a better understanding of the issues by the Commission by representing a point of view on the implications of TELUS' request to the Commission that would not otherwise have been raised.
  Edmonton therefore asked that the Commission award and fix costs in the amount of $8,420.50 against TELUS.
4. In support of its request, Edmonton submitted that TELUS' Part VII application was premature, as by its letter to the Commission dated 13 April 2000, TELUS withdrew its application following a negotiated settlement. Edmonton pointed out that these costs would not have been incurred had TELUS continued its negotiations with the City of Toronto in the first instance.
5. TELUS submitted that Edmonton's application should be dismissed as it failed to meet the criteria for costs contained in section 44(1)(a) and (c) of the Rules. It contended that Edmonton's intervention in the Part VII proceeding was primarily motivated by its own interests as a party to negotiations for access agreement with competitive local exchange carriers (CLECs) and not in a representative capacity on behalf of the citizenry as "a group or class of subscribers". Further, TELUS pointed out that Edmonton failed to clearly establish a detriment that would be suffered as a result of a Commission order. Furthermore, TELUS considered insufficient Edmonton's assertion that it contributed to a better understanding of the issues "by representing a point of view" that would not otherwise have been made. TELUS argued that representing a point of view was not the same as making a relevant contribution.
6. In addition, TELUS stated that a municipality's participation in regulatory matters affecting its citizens is one of its recognized functions. Accordingly, a portion of its annual budget may properly be deemed to be appropriated for this participation. TELUS noted that this policy was adopted by the Commission in Telecom Costs Order CRTC 87-3, and reaffirmed in Telecom Costs Order CRTC 96-19 and Telecom Costs Order CRTC 99-14. Finally, TELUS contended that the proceeding did not involve any "unique and special circumstances" which warrant the Commission departing from its policy. The application sought only interim relief and would not have resulted in longer-term policy implications.
7. Edmonton replied that the TELUS application set it aside as a "unique and special" situation in three respects:
  a) TELUS' application was unnecessary. TELUS had resolved the issue through negotiations;
  b) The application was made in accordance with a special provision of Telecom Public Notice CRTC 99-25, Terms and conditions for access to municipal property in the City of Vancouver, dated 3 December 1999, in which the Commission stated it would consider applications for interim relief, concerning access to public rights-of-way, on an expedited basis; and
  c) TELUS' application would have had a permanent aspect to it once facilities were installed.
  Further, Edmonton submitted that by presenting negotiated access agreements it had reached with other carriers, Edmonton had assisted the Commission in evaluating the potential impacts of such agreements for other cities and carriers.
 

Commission determination

8. The purpose of costs is not to reimburse each intervener who participated in the proceeding, but to provide assistance to interveners who may not otherwise be able to participate in rhe proceeding. This means that costs will not be granted if an intervener has sufficient financial resources to participate in a Commission proceeding.
9. The Commission's policy is generally to decline to award costs to municipalities on the basis that a city's participation in regulatory matters affecting its citizens is one of its recognized functions, and a portion of its annual budget is deemed to be allocated accordingly - see, for example, Northwestel Inc., General increase in rates - Telecom Decision CRTC 87-3, Telecom Costs Order CRTC 87-3. The Commission has made exceptions to the rule in a few instances, where it was satisfied that the proceeding involved special and unique circumstances of such a nature as to justify departure from its usual approach.
10. In CN Telecommunications, increase in telephone rates in Newfoundland - 780144200, Telecom Decision CRTC 78-5, the Commission concluded that the exceptional nature of the proceeding constituted special and unique circumstances that justified making an exception in order to award costs to the Federation of Canadian Municipalities. The Commission noted that the Federation played a "major role" in the public hearing and "exceeded the level of research and participation in the hearing that could reasonably have been expected of it based on its budget". The Commission also noted that the Federation was the sole intervener to participate actively. Finally, the Commission observed that "[i]n doing so, it represented not merely particular geographic or socio-economic segments of the subscriber population.".
11. 1 In AGT Limited (AGT) - Issues related to income taxes, Telecom Costs Order CRTC 93-10, the Commission concluded that the exceptional nature of the proceeding and the City of Calgary's exceptional contribution constituted special and unique circumstances that justified a limited cost award. The proceeding involved a high level of complexity and technical difficulty. Further, Calgary was the sole intervener who participated in the proceeding, and without its participation, the Commission would not have conducted an oral public hearing to consider the issues.
12. Edmonton submitted that it contributed to a better understanding of the issues "by representing a point of view on the implications of TELUS' request to the Commission that would not otherwise have been raised." In the Commission's view, however, Edmonton cannot be said to have played a major role in this proceeding. In its intervention, Edmonton did not raise any substantial issue which was not already addressed by the City of Toronto or the Federation of Canadian Municipalities.
13. Edmonton noted that it "has experience in rights-of-way negotiations and was in a position to offer the Commission a unique sample of its negotiated access agreements for the record to assist in evaluating the potential impacts to other cities." A municipality's participation in regulatory matters affecting its citizens is part of its functions and, accordingly, a portion of its annual budget may properly be deemed to be allocated for this participation. Further, the Commission does not find that Edmonton's participation exceeded the level of research and participation in the hearing that could reasonably have been expected of it based on its budget.
14. Finally, Edmonton argued that the circumstances in this case were special and unique in that the proceeding was unnecessary since it was ultimately aborted; that it was a special process in which the Commission considered applications for interim relief on an expedited basis; and that the relief requested would have had a permanent aspect to it once the facilities were installed. The Commission does not find that these constitute "special and unique" circumstances. The application was ultimately withdrawn as a result of a negotiated settlement. Edmonton is, in a sense, essentially seeking "punitive" costs. The Commission considers that to award costs in this case would be counter to the Commission's policy of encouraging alternative dispute resolution, and to the spirit of the relevant provisions of the Telecommunications Act (cf. sections 43 and 44) which provide a "last-resort" dispute resolution mechanism.
 

Direction as to costs

15. The Commission does not consider that the circumstances in this case constitute the special and unique circumstances necessary to justify making an exception to its general policy regarding costs awards to municipalities.
16. In light of the forgoing, the application of the City of Edmonton for an award of costs in respect of the above-mentioned proceeding is denied.
  Secretary General
  This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca 

Date Modified: 2001-02-20

Date modified: