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Telecom Order CRTC 2021-170

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Ottawa, 13 May 2021

File numbers: 1011-NOC2020-0124 and 4754-646

Allocation of funds from Bell Canada’s deferral account to the Canadian Association of the Deaf - Association des Sourds du Canada for its participation in the proceeding initiated by Telecom and Broadcasting Notice of Consultation 2020-124

Background

  1. In Telecom and Broadcasting Notice of Consultation 2020-124-2, the Commission approved a proposal by Bell Canada to use up to $125,000 from the company’s deferral account to fund public interest and accessibility intervener participation in the proceeding initiated by Telecom and Broadcasting Notice of Consultation 2020-124 (the proceeding) and, if funds remained, in a follow-up proceeding. In the proceeding, the Commission considered regulations to be made under the Accessible Canada Act (ACA) regarding the accessibility reporting requirements for broadcasting undertakings, Canadian telecommunications common carriers, and telecommunications service providers.
  2. The Commission indicated that it would distribute these funds in a manner that closely resembles its general practices and procedures in respect of applications for final telecommunications costs awards, including the application of the eligibility criteria for costs awards set out in section 68 of the Canadian Radio-television and Telecommunications Commission Rules of Practice and Procedure (the Rules of Procedure).
  3. The Commission noted that Bell Canada did not submit, as part of its proposal, that it required the opportunity to respond to applications for a share of the available funds. In the circumstances, the Commission considered that such responses were unnecessary.

Application

  1. By letter dated 20 July 2020, the Canadian Association of the Deaf - Association des Sourds du Canada (CAD-ASC) applied for costs with respect to its participation in the proceeding.
  2. CAD-ASC submitted that it had met the criteria set out in section 68 of the Rules of Procedure because it represented a group of subscribers that had an interest in the outcome of the proceeding, it had assisted the Commission in developing a better understanding of the matters that were considered, and it had participated in a responsible way.
  3. In particular, CAD-ASC submitted that it represents the interests of persons with disabilities, specifically Deaf people in Canada, as a national information, research, and community action organization controlled by, operated by, and composed of persons who are culturally and linguistically Deaf.
  4. CAD-ASC submitted that it provided a fuller understanding of the issues affecting this class of subscribers by preparing a 44-page intervention and 10-page reply to the proceeding’s interventions alongside the Canadian National Society of the Deaf-Blind, Inc. (CNSDB); the Deaf Wireless Canada Consultative Committee (DWCC); and Deafness Advocacy Association Nova Scotia (DAANS).
  5. CAD-ASC submitted that it participated in the proceeding in a responsible way by advancing the interests of Deaf people in Canada and by making concrete recommendations on the subject matter of proceeding.
  6. CAD-ASC requested that the Commission fix its costs at $4,180, consisting of entirely of consultant fees. CAD-ASC filed a bill of costs with its application, claiming 38 hours at the rate of $110 per hour for an external consultant.

Commission’s analysis and determinations

Eligibility

  1. In Telecom and Broadcasting Notice of Consultation 2020-124-2, the Commission stated the following:
    1. […] Eligibility for a share of these funds will be evaluated according to the criteria set out in section 68 of the Rules of Procedure, namely
      1. whether the applicant had, or was the representative of a group or a class of subscribers that had, an interest in the outcome of the proceeding;
      2. the extent to which the applicant assisted the Commission in developing a better understanding of the matters that were considered; and
      3. whether the applicant participated in the proceeding in a responsible way.
  2. The Commission further indicated that it would have regard to whether the applicant had explained how the costs claimed were reasonably and necessarily incurred in the circumstances.
  3. In Telecom Information Bulletin 2016-188, the Commission provided guidance regarding how an applicant may demonstrate that it satisfies the first criterion with respect to its representation of interested subscribers. CAD-ASC has demonstrated that it meets the first criterion by representing individuals who are culturally and linguistically Deaf. CAD-ASC relied on its Board of Directors, which is made up entirely of members of the Deaf community, and ensured that its members supported its positions.
  4. CAD-ASC assisted the Commission in developing a better understanding of the matters that were considered by explaining specific outstanding issues and challenges to be addressed in the proposed regulations to be made under the ACA, thereby satisfying the second criterion.
  5. CAD-ASC has also satisfied the remaining criterion through its participation in the proceeding. CAD-ASC participated jointly with the CNSDB, DAANS, and the DWCC in all stages of the proceeding and raised accessibility issues and challenges faced by deaf-blind Canadians.
  6. Accordingly, the Commission finds that CAD-ASC meets the criteria for an award of costs set out in Telecom and Broadcasting Notice of Consultation 2020-124-2.

Consultant fees

  1. The costs that can be reasonably claimed for external consultants are higher than those for in-house consultants. This is because it is generally presumed that in-house consultants are part of the organization and provide services as part of their regular duties, the costs for which are covered by the organization’s regular operating costs. However, external consultants are presumed to be charging the organization industry rates for specific expertise.
  2. CAD-ASC claimed fees consistent with the rate for an external consultant listed in the Guidelines for the Assessment of Costs, as set out in Telecom Regulatory Policy 2010-963, rather than fees consistent with the rate for an internal consultant.
  3. In Telecom Order 2017-129, the Commission permitted recovery at the external rate for the President of the Board of Directors of CAD-ASC, who prepared the organization’s submissions, concluding that it was unlikely that this not-for-profit organization would otherwise be able to participate in Commission proceedings. In that order, the work of the President was considered as time spent as a consultant rather than as a director.
  4. In the present circumstances, it would be consistent with that past case to apply similar rationale. CAD-ASC’s Vice-President should be considered to have participated directly in the development of the organization’s submissions as a consultant rather than as a director, and costs should be awarded at the external rate.

Time claimed

  1. In the present case, CAD-ASC participated jointly with the CNSDB, DAANS, and the DWCC in all stages of the proceeding, explaining how the roles played by these organizations were all distinct.
  2. CAD-ASC raised relevant issues and developed unique policy and legal positions. Accordingly, the Commission finds that the amount of time claimed by CAD-ASC is appropriate.
  3. In light of the above, the total amount claimed by CAD-ASC was reasonably and necessarily incurred and should be allowed.

Directions regarding costs

  1. The Commission approves the application by CAD-ASC and directs Bell Canada to pay forthwith from its deferral account the amount of $4,180 to CAD-ASC.

2019 Policy Direction

  1. The Governor in Council issued a policy direction in which it directed the Commission to consider how its decisions can promote competition, affordability, consumer interests, and innovation (the 2019 Policy Direction).Footnote 1 The Commission considers that its determinations in this order are consistent with the 2019 Policy Direction.
  2. In particular, the present order, which requires the reimbursement of reasonably and necessarily incurred costs relating to public interest intervener participation in the proceeding, contributes to enhancing and protecting the rights of consumers in their relationships with service providers, including rights related to accessibility.

Secretary General

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