ARCHIVED - Costs Order CRTC 2001-2

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Costs Order CRTC 2001-2

  Ottawa, 6 February 2001

Part VII application by Mr. Chris Stark respecting the provision of Fido service to persons who are blind

  Reference: 4754-182 and  8620-S49-02/00
1. In his Part VII application dated 29 June 2000, Mr. Stark asked for compensation for the time he spent to prepare the application and subsequent submissions. In response to correspondence from Commission staff, Mr. Stark filed additional information in support of his application on 25 and 26 October and 1 November 2000. In addition, Mr. Stark requested that the Commission dispense with the taxation process and fix his costs in the amount of $1,460.
2. Microcell Telecommunications Inc. filed submissions dated 10 November 2000 in response to Mr. Stark's cost application and further submissions. Mr. Stark filed a reply on 14 November 2000.

Positions of parties

3. Mr. Stark submits that he met each of the three criteria in section 44(1) of the CRTC Telecommunications Rules of Procedure (the Rules): (i) he represents the interests of those customers who are blind; (ii) his participation was positive and supportive of the public interest provisions of the Telecommunications Act, and (iii) his submissions have helped the Commission to expand its horizons and broaden its understanding of the marketplace and the needs of all customers.
4. Mr. Stark also requests that the Commission fix his costs at the same time that his application for costs is considered. Mr. Stark submitted an invoice for 73 hours of work and suggested that he should be paid at the hourly rate paid to lawyers, or alternatively, at an hourly rate of $20.
5. In its response, Microcell argues that Mr. Stark should not be entitled to obtain costs in this proceeding. In the company's view, Mr. Stark did not incur any costs to participate in this proceeding and his costs cannot reasonably be deemed to have been incurred.
6. Microcell acknowledges that the Commission has broad discretion to award costs to interveners. The company contends, however, that such discretion must be exercised with due regard to the principle of indemnity or compensation and must not abandon altogether the notion that, where costs were not actually incurred, it must be possible to establish a reasonable proxy for deemed expenses.
7. In Microcell's view, Mr. Stark has not provided any indication that the compensation he is seeking is justified on the basis of either expenditures made to prepare his submissions or lost opportunities to earn money from other sources. In the absence of a reasonable proxy, a cost award to Mr. Stark would be inconsistent with the case law and with the general nature of a costs awards process. It would also be inconsistent with the Commission's general approach to the taxation of costs.
8. Microcell further argues that it would not be appropriate to award costs for deemed expenses in a proceeding which is adversarial in nature rather than one which is initiated by the Commission to solicit broad public participation. Microcell considers that many of the issues raised by Mr. Stark, in relation to general quality of service standards, would have been more appropriately addressed in the context of a broader public proceeding, in which any intervener costs would be assessed against a broader range of respondents.
9. In the event that the Commission determines that costs are available to Mr. Stark in this proceeding, costs should be disallowed with respect to the time Mr. Stark has claimed for preparation of: (i) the portions of his comments of 22 October in response to Microcell's interrogatory responses filed on 20 October, containing arguments relating to broadcasting and accusations of intentional discrimination by Microcell against blind customers, and (ii) his comments dated 30 October.
10. In his 14 November reply, Mr. Stark argues that his labour and effort have monetary value and the fact that he did not pay others to do the work is not a prerequisite for receiving compensation.
11. The Commission considers that it has the power, pursuant to section 56 of the Telecommunications Act, to award costs not only to interveners in its proceedings (initiated by the Commission or otherwise), but also to an applicant, such as Mr. Stark.
12. The Commission agrees with Microcell that an award of costs in the exercise of this statutory power must, as stated by the Supreme Court of Canada in Bell Canada v. Consumers' Association of Canada et al., [ 1986] 1 S.C.R. 190 at 207, "carry the general connotation of being for the purpose of indemnification or compensation"; however, as also noted by the Court, the Commission has wide discretion in applying the principle of indemnification or compensation. The Commission is not bound by the practice of civil courts, which is that there can be no indemnification without liability. As Microcell noted, it is open to the Commission, where actual out-of-pocket costs were not incurred, to establish a reasonable proxy for deemed expenses.
13. The Commission notes that Mr. Stark raised some important issues regarding access to Fido service by persons who are blind. In the Commission's view, the mere fact that Mr. Stark did not pay a lawyer or other consultant to prepare his application and submissions does not mean that he did not incur, directly or indirectly, any costs. Mr. Stark spent a considerable amount of time preparing his submissions and worked on the proceeding while he was on vacation leave. The Commission considers that Mr. Stark can be said to have incurred costs in the preparation of his Part VII application and related submissions.
14. In light of the foregoing, and having concluded that Mr. Stark's application is consistent with the criteria set out in section 44 of the Rules, the Commission finds it appropriate to award Mr. Stark costs to compensate him for the costs that he can reasonably be deemed to have incurred.
15. Given the size of Mr. Stark's claim and the relative brevity of this paper proceeding, the Commission considers that this is an appropriate case in which to dispense with taxation and fix the costs in accordance with the streamlined procedure set out in Telecom Public Notice CRTC 98-11.
16. As noted above, Mr. Stark requests that he be compensated at the hourly rate paid to lawyers or, in the alternative, at $20 an hour. The Commission considers that the rate charged by a lawyer would not be a reasonable proxy for the costs incurred by the applicant. Mr. Stark is not a lawyer. Moreover, in the Commission's view, Mr. Stark's submissions do not reflect the expertise that can generally be expected from a lawyer. In the absence of any evidence of a more appropriate rate, the Commission finds that $20 per hour, as suggested by Mr. Stark, is a reasonable proxy for the costs he can be said to have incurred in this proceeding.
17. Mr. Stark argues that if the Commission decides not to award him an amount equivalent to the hourly rate paid to lawyers, then the process should be started over with a CRTC order that only one person, the CEO of Fido or his designated staff member (who is not a lawyer) address his complaint. Mr. Stark argued that the use of legal counsel has transformed this request for customer service into an adversarial game.
18. The Commission considers that Microcell's participation in this proceeding, through its responses to the Commission's interrogatories and submissions, has been helpful. The Commission concludes that it is neither necessary nor appropriate to initiate a new process, without the assistance from Fido's lawyers.
19. With regard to the amount of time claimed by Mr. Stark, the Commission notes that in accordance with its established criteria, Mr. Stark should not be compensated for costs that are in excess of those reasonably and necessarily incurred in connection with his participation in the proceeding. Based on these criteria, the Commission is of the view that Mr. Stark's claim for 73 hours of work is excessive. His submissions were, at times, unnecessarily lengthy, repetitive, and they addressed some irrelevant issues. The Commission concludes that Mr. Stark's claim should be reduced by approximately 30% to represent those costs claimed by Mr. Stark that were not necessarily or reasonably incurred.
20. The Commission concludes that Mr. Stark should be compensated for the costs he can be considered to have incurred in connection with 50 hours of work he spent to prepare his submissions. The Commission therefore finds that Mr. Stark can be said to have reasonably and necessarily incurred costs in the amount of $1,000, or $20 per hour for 50 hours of work.

Direction as to costs

21. The Commission approves Mr. Chris Stark's application for costs in this proceeding.
22. The Commission fixes Mr. Stark's costs at $1,000.
23. Microcell, the respondent to this application for costs, shall pay forthwith to Mr. Stark the costs awarded herein.
  Secretary General
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Date Modified: 2001-02-06

Date modified: