ARCHIVED - Telecom Taxation Order CRTC 2002-3

Telecom Taxation Order CRTC 2002-3

Ottawa, 13 September 2002

Costs awarded to Manitoba Keewatinowi Okimakanak - Public Notice CRTC 2001-37

Reference: 8678-C12-11/01 and 4768-099

Byron Williams for the Public Interest Law Centre representing Manitoba Keewatinowi Okimakanak (MKO)

Taxation of costs of MKO

Taxation officer: Natalie Turmel

1.

This order constitutes the taxation of costs awarded to Manitoba Keewatinowi Okimakanak (MKO) in the proceeding initiated by Public Notice CRTC 2001-37, Price cap review and related issues, 13 March 2001.

2.

Costs were awarded to MKO pursuant to Manitoba Keewatinowi Okimakanak application for costs - Price cap review proceeding, Telecom Costs Order CRTC 2002-3, 13 March 2002 (Costs Order 2002-3), in accordance with section 44 of the CRTC Telecommunications Rules of Procedure. MTS Communications Inc. (MTS) was named the respondent in Costs Order 2002-3.

3.

By letter dated 11 April 2002, MKO submitted a bill of costs in which it claimed an amount of $21,467.50 in legal fees, $20,822.00 in consultant and analyst fees and $5,657.97 in disbursements, for a total amount of $47,947.47.

4.

MKO claimed fees of $16,000.00 and $132.00 for its analysts, Mr. Thomas Giddings and Ms. Betsy Gibbons, respectively. These amounts represent 100 hours of work for Mr. Giddings at a rate of $160.00 per hour, and 2.2 hours of work for Ms. Gibbons at a rate of $60.00 per hour.

5.

MTS filed comments with respect to the fees claimed by MKO for one of its analysts.

MTS' comments

6.

In its comments dated 13 May 2002, MTS objected to the $16,000.00 fee claimed by MKO for Mr. Giddings. MTS submitted that the fees were excessive and questioned whether they were reasonable, necessary and whether Mr. Giddings' services had been efficiently managed. MTS submitted that Mr. Giddings' fees should be denied or reduced by at least 75%.

7.

In support of its submission, MTS noted that Mr. Giddings had not filed any evidence in the proceeding and noted that his fees far exceeded those of the consultants, Mr. Smith and Mr. Todd, retained by MKO. MTS noted that Mr. Giddings' bill was for services rendered after MKO filed its evidence and questioned why he was retained so late in the proceeding.

8.

MTS referred to Costs awarded to Action Réseau Consommateur et al. - Public Notice CRTC 2001-37, Telecom Taxation Order CRTC 2002-2, 19 April 2002 (Taxation Order 2002-2), to support its position that the time and fees claimed for Mr. Giddings were disproportionate to those sought and awarded to most consultants employed by other parties who filed evidence, responded to interrogatories and provided assistance to consumer groups on more complex issues in this proceeding.

9.

MTS noted that Mr. Giddings' resume identified his recent field of interest as economics of Phase II costing and that he had been involved in the co-ordination of Bell Canada's original Quality of Service measurement indicators. MTS submitted that MKO's cross-examination and closing argument did not deal with either of these issues. MTS further submitted that MKO's proposal, which was submitted in its closing argument, did not deal with economic or technical matters.

MKO's reply

10.

In its reply, MKO pointed out that the analysis it provided during the proceeding provided an explanation as to why MTS was unable to understand or address the shortcomings of its existing service. MKO relied on Mr. Giddings' familiarity with Bell Canada's method of identifying and addressing quality of service problems in Northern Ontario and Quebec to identify communication problems between First Nations people and MTS.

11.

MKO submitted that it also relied on Mr. Giddings' experience with Bell Canada and the Commission in recommending that MTS be directed to engage in a consultative committee with MKO and other interested parties in order to develop a service improvement plan. MKO added that its submission addressed longstanding deficiencies in the provision of service in Northern Manitoba. MKO submitted that it relied on Mr. Giddings' experience with other service providers and with remote communities in other parts of Canada in developing an innovative solution to address these deficiencies.

12.

MKO referred to the Commission's Decision CRTC 2001-767 dated 19 December 2001 to demonstrate that a number of conclusions with respect to the MTS Service Improvement Plan could be traced to the evidence, cross-examination and submissions of MKO.

13.

MKO also added that the number of hours of work performed by Mr. Giddings resulted in fewer hours of work being claimed by Mr. Williams, MKO's lawyer. MKO explained that Mr. Williams was able to rely on Mr. Giddings to an unusual degree in drafting closing and reply arguments for this proceeding. MKO stated that the 121 hours claimed by Mr. Williams in this proceeding were substantially lower than those claimed in previous proceedings, namely, the first Price Caps hearing (214 hours), the Implementation of Price Caps hearing (178 hours), the High Cost Serving Areas Proceeding (298.4 hours), the MTS Proposal to Recover its Income Tax Expense hearing (184 hours), and the Local Service Pricing Options Proceeding (134 hours).

14.

MKO submitted that most of the time claimed for Mr. Williams and Mr. Giddings was spent preparing for cross-examination and argument rather than preparing written evidence. MKO also added that developments in the proceeding following the filing of evidence had led to additional issues that needed to be resolved through cross-examination.

15.

MKO submitted that it was inappropriate to compare the present claim with the bills submitted on behalf of the experts retained by Action Réseau Consommateur (ARC) et al. in relation to Taxation Order 2002-2. MKO argued that the experts had not been retained to perform the same function in each case. Moreover, MKO submitted that the evidence used by some of the analysts retained by ARC et al. was based on evidence they had filed in previous proceedings.

16.

MKO also indicated that Mr. Giddings had reduced the number of hours claimed from 135.5 to 100 hours by virtue of an earlier agreement and that he should be commended for assisting MKO beyond the time that had been budgeted.

Analysis

17.

After reviewing the bill of costs, MTS' comments and the reply from MKO, I find that the amounts claimed on behalf of Mr. Giddings were reasonably and necessarily incurred. I also note that Mr. Giddings claimed substantially fewer hours than he actually worked.

18.

I am of the opinion that MKO justified the hours claimed for Mr. Giddings and that the number of hours claimed for the work of Mr. Williams would have been considerably higher had it not been for Mr. Giddings' work.

19.

I am satisfied that Mr. Giddings' assistance in the cross-examination, closing and reply argument resulted in a lower number of hours billed by Mr. Williams and that the combination of time billed by Mr. Giddings and by Mr. Williams is reasonable under the circumstances.

20.

I am also satisfied with MKO's explanation that Mr. Giddings' involvement focussed on cross-examination and argument rather than on written evidence. I would also like to emphasize that parties may obtain the assistance of experts in various parts of the proceedings, and not only, for example, in the preparation of the evidence.

21.

I note that the rate claimed for Mr. Giddings is in accordance with the rate specified in the Commission's Legal Directorate's Guidelines for the Taxation of Costs (the guidelines). In light of the foregoing, I accept the rate and time claimed for Mr. Giddings as appropriate.

22.

I also note that the hourly rate claimed by Ms. Gibbons is consistent with those specified in the guidelines for an analyst. Accordingly, I accept the rate and time claimed for Ms. Gibbons as appropriate.

Legal and consultants fees

23.

MKO claimed fees of $21,227.50 and $240.00 for its lawyer, Mr. Byron Williams and articling student, Ms. Bev Froese, respectively. These amounts represent 121.3 hours for Mr. Williams at a rate of $175.00 per hour and 4.0 hours for Ms. Froese at a rate of $60.00 per hour.

24.

I note that these rates are in accordance with the rates specified in the guidelines. I accept the rates and time claimed as appropriate.

25.

MKO claimed fees of $1,890.00 and $2,800.00 for its consultants, Mr. John Todd and Mr. Doug Smith, respectively. These amounts represent 10.8 hours for Mr. Todd at a rate of $175.00 per hour and seven days for Mr. Smith at a rate of $400.00 per day.

26.

I note that the rates claimed are in accordance with the rates specified in the guidelines. I accept the rates and time claimed as appropriate.

Disbursements

27.

MKO claimed a total of $5,657.97 including $469.51 for office expenses, $3,704.00 for air travel, $76.50 for parking, $151.00 for intra-city taxi/bus/train, $1,040.96 for hotel accommodation, and $216.00 for meals.

28.

I have reviewed the receipts submitted in support of these claims. I consider that the amounts claimed were reasonably and necessarily incurred and I will allow them as claimed.

Costs as taxed

29.

I hereby tax the fees and disbursements of the applicant, inclusive of the applicable taxes, as follows:

Analysts fees

Ms. Gibbons

$ 132.00

Mr. Giddings

$16,000.00

Legal counsel fees

Mr. Williams

$21,227.50

Articling student fees

Ms. Froese

$ 240.00

Consultants fees

Mr. Todd

$ 1,890.00

Mr. Smith

$ 2,800.00

Total fees

$42,289.50

Total disbursements

$ 5,657.97

Total payable

$47,947.47

30.

Pursuant to Costs Order 2002-3, MTS is to pay the costs forthwith.

Taxing officer
Natalie Turmel

This document is available in alternative format upon request and may also be examined at the following Internet site: http://www.crtc.gc.ca