Reference Letter regarding Guidelines for the Taxation of Costs
15 May 1998
To all persons on the attached distribution list
Re: Guidelines for the Taxation of Costs
___________________________________
Dear Sir or Madam:
Please find enclosed the revised Guidelines for the Taxation of Costs, including Appendix A outlining the rates, (the "Guidelines") and related Forms adopted by the Legal Directorate following the consultative process with respect to possible changes to them. The revised Guidelines and related Forms shall apply to all taxations made in respect of costs awarded by the Commission on or after 15 May 1998.
The Commission is issuing a Public Notice today announcing that in the future, it will be prepared, in appropriate circumstances, to fix costs rather than provide for their taxation. It is expected that this new policy together with the revised Guidelines will have the combined effect of eliminating unnecessary process and expediting that which is necessary.
On 29 July 1997, the Commission's Legal Directorate sought comments from 119 parties which included all regulated companies, persons or organizations who have paid or have been awarded costs in the past four years as well as other interested parties. A total of six submissions were received, namely from la Fédération Nationale des Associations de Consommateurs du Québec (FNACQ); the Public Interest Advocacy Centre (PIAC); the Public Interest Law Centre (PILC); the British Columbia Public Interest Advocacy Centre on behalf of the Consumers' Association of Canada (BC Branch), the BC Old Age Pensioners' Organization, the Council of Senior Citizens' Organizations of BC, the federated antipoverty groups of BC, the Senior Citizens' Association of BC, the West End Seniors' Network, the End Legislated Poverty, the BC Coalition for Information Access and the Tenants' Rights Action Coalition (collectively known as BCOAPO); the Stentor Resource Centre Inc. on behalf of BC TEL, Bell Canada, The Island Telephone Company Limited, MTS NetCom Inc., Maritime Tel & Tel Limited, The New Brunswick Telephone Company Limited, NewTel Communications Inc. and TELUS Communications Inc. (Stentor); and the Tatlayoko Think Thank (TTT). FNACQ and PILC indicated in their submissions that they fully endorsed the submissions made by PIAC. Reply comments were received from PIAC, BCOAPO and Stentor.
There was general agreement amongst the parties that the taxation process could be further streamlined. The members of the Legal Directorate have adopted a number of amendments to reflect the comments raised while keeping in mind that the taxation process should not represent a burdensome process and should be fair to all parties concerned. The required taxation Forms have been substantially revised and simplified. The end result should be to reduce the workload in the preparation of Bills of Costs. The Legal Directorate expects that, consistent with the Commission’s Vision, the revised Guidelines and the simplified Forms will assist in expediting the process for both the Commission and the parties, as well as making the process more user friendly.
The following describes the major changes and clarifications that have been made to the Guidelines and related Forms:
The definition of "Expert witness" has been amended to explicitly exclude in-house analysts/consultants and in-house counsel. This amendment reflects the fact that claims at an expert witness rate to recover costs for work performed by an in-house employee were never intended. It is to be noted that this amendment is consistent with previous taxation orders.
The revised Guidelines also reflect the fact that the terms "analyst" and "consultant" are largely interchangeable.
The definition of "Expert witness" now specifies that the person is providing "an independent professional opinion or judgment on a matter in a proceeding". This amendment serves to highlight the distinction to be made between analysts/consultants and expert witnesses.
The existing fee structure allowed for expert witnesses is now explicitly set out in the Guidelines. Accordingly, the Guidelines now specify that expert witnesses may claim the hourly rate for all services other than testifying while the daily rate will apply for attendance at the hearing for the purpose of testifying.
The hourly rate set out for analysts/consultants with 9 or more years of experience is now the same as the hourly rate applicable to all services provided by expert witnesses, other than testifying. Since the role of an expert witness when not testifying is akin to that of a consultant and since expert witnesses, by the very nature of their role in the proceeding, will generally have at least 9 years of experience, the Legal Directorate considers it appropriate to allow expert witnesses and analysts/consultants with 9 or more years of experience to claim the same hourly rate.
The hourly rate applicable to services provided by an expert witness for the preparation of evidence has been increased to $175. The hourly rate for senior analysts/consultants with 9 or more years of experience is also set at $175. The hourly rates for analysts/consultants with 5 to 8 years and 0 to 4 years of experience have also been moderately increased to $130 and $90 respectively.
The definition of "Claimant" was amended to include an applicant who is an individual to whom costs were awarded. This amendment reflects the fact that the Guidelines were never intended to limit who is eligible for costs awards. The addition of such a category of claimants merely serves to reflect those parties who may be awarded costs under the CRTC Telecommunications Rules of Procedure.
Case management is now recognized in the taxation Forms as a service that may be provided by analysts/consultants and legal counsel as in certain circumstances, it may be appropriate for them to provide such services. This amendment serves to recognize that case management often represents an important part of the services provided in relation to a proceeding. However, where these services are provided by the applicant’s support staff, administrative staff, officers and directors, costs for time associated with those functions are not recoverable (see section 8 of the Guidelines).
With respect to the considerations which may be taken into account in assessing whether the time claimed by a claimant is excessive under the circumstances, the Legal Directorate has found it appropriate to specify the Taxation Officer may consider the time claimed and awarded in the proceeding or in other proceedings on a global basis, by specific service or both. This addition merely serves to specify one of the considerations the taxation officer may assess in the exercise of his or her discretion. It is to be noted that the list of considerations provided in the Guidelines is not exhaustive and that the factors considered are entirely within the discretion of the taxation officer, depending on the circumstances of each case.
Meals taken in connection with a hearing or meetings will generally be allowed regardless of the distance from the regular place of work of the person who makes those disbursements. However, the meal allowance that may be claimed for such meals will depend on the distance from the regular place of work of the claimant. A fixed individual meal allowance will apply to meals taken at a distance of 50 kilometers or less while the daily meal allowance will be applicable to meals taken at a distance greater than 50 kilometers.
The affidavit of disbursements set out in Form IV now provides a statement to be included where an applicant submits claims for meals both on a per diem basis and on the basis of individual meals. This statement serves to confirm that the claims for meal disbursements do not represent double recovery of costs.
With respect to inter-city travel, the provision relating to the expectation that persons purchase the cheapest available airline ticket has been modified to avoid any misinterpretation. The Guidelines will now provide that it is expected that persons purchase a discounted ticket, if available and, further, that best efforts should be made to purchase a ticket as early in advance as possible in order to fully benefit from the discounts available.
Claims for accommodation in a private residence will now be allowed at a fixed rate set at $20 per day.
In addition to the required hard copy filings, parties may now file electronic versions of their documents. It is expected that the availability of electronic forms will be of benefit in the preparation and the processing of Bills of Costs.
The affidavit of disbursements set out in Form IV has been modified to include a statement confirming that the disbursements claimed are made in accordance with the Commission's determination set out in the applicable Cost Order and do not exceed the costs permitted therein. This will serve to ensure that an applicant has not claimed costs, which were disallowed in the Cost Order.
Applicants will no longer be required to submit receipts for all disbursements claimed at the time they file their Bill of Costs. Applicants must file only those receipts for disbursements relating to hotel accommodation and inter-city air, train or bus travel. Applicants are, however, expected to keep receipts for all disbursements claimed and will be expected to file receipts where requested by the taxation officer. Failure to provide receipts upon request by the taxation officer will generally result in the disallowance of the claim in question.
Applicants will no longer be required to indicate the applicable taxes or tax rebates for each entry but rather will include this information as a subtotal entry on each form. The listed services have been reorganized into broader categories while maintaining the same level of specification as was previously required. A new form entitled "Form V - Summary of Fees and Disbursements" is to be filed with all Bills of Costs and should serve to facilitate the processing of claims by taxation officers.
It must be noted that these Guidelines have been adopted by the members of the Legal Directorate, and are not to be construed as a scale for the taxation of costs adopted pursuant to subsection 56(2) of the Telecommunications Act. These Guidelines constitute mere Guidelines that do not fetter or detract from the general discretion of an individual taxation officer called upon to tax costs awarded by the Commission in a particular case.
Yours very truly,
Allan Rosenzveig
General Counsel, Telecommunications
Encl.
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