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General information about the CRTC and Guide to Costs Applications in the Accessibility Proceeding[1]

This document provides some general information about the CRTC as well as specific information about applications for costs in the proceeding regarding accessibility initiated by Broadcasting Notice of Public Hearing CRTC 2008-8 Telecom Public Notice CRTC 2008-8 (the Accessibility Proceeding). It is an introduction only and parties are strongly advised to consult the relevant legislation, regulations, decisions, etc., many of which are available on the CRTC's website at http://www.crtc.gc.ca/eng/statutes-lois.htm and http://www.crtc.gc.ca/eng/dno.htm .

I  General information about the CRTC

The CRTC is the federal administrative tribunal that regulates Canada 's broadcasting and telecommunications systems.   Its authority comes from the Broadcasting Act (S.C. 1991, c. 11, as amended) [2] and the Telecommunications Act (S.C. 1993, c. 38, as amended). [3]   In regulating both broadcasting and telecommunications, the Commission is required to apply any directions made by the Governor in Council. [4]

In December 2006, the Governor in Council made an Order Issuing a Direction to the CRTC on Implementing the Canadian Telecommunications Policy Objectives (the Policy Direction) under section 8 of the Telecommunications Act . This Policy Direction requires, among other things, that the CRTC rely on market forces to the maximum extent feasible and, where there is still a need to regulate, to do so in a way that interferes with market forces to the minimum extent necessary to meet the policy objectives of the Telecommunications Act . With respect to regulatory measures that are of a social or non-economic nature, the Policy Direction requires that the CRTC should, as much as is feasible, implement measures in a symmetrical and competitively neutral manner.   The CRTC is required to apply this Policy Direction when exercising its powers or performing its duties under the Telecommunications Act .

Those making submissions in the Accessibility Proceeding are required only to file their documents with the Commission. [5] Parties to the proceeding are therefore strongly advised to monitor the proceeding's file on the CRTC website on a regular and frequent basis.   While documents can be expected to be posted on the website shortly after the dates set out in Telecommunications Public Notice 2008-8 and Broadcasting Notice of Public Hearing 2008-8, as amended, [6] parties may at any time file additional documents requesting a change in the process, advising of changes of contact information, etc..   Similarly, Commission documents may be added to the website at any time.

II         Guide to costs applications in the Accessibility Proceeding

Yes, for some expenses associated with submissions related to telecommunications. Under the Telecommunications Act the CRTC has the power to award costs to interveners participating in telecommunications proceedings. These costs are generally paid by some or all of the participating telecommunication service providers (TSPs).   The Commission does not have the same power under the Broadcasting Act . This means that the Commission only has the power to award costs for work and expenses associated with submissions made on telecommunications-related matters.

In Taxation Order CRTC 98-1, the Commission took the following approach to costs applications in a converged proceeding:

a) costs that would have been incurred for submissions related to telecommunications, whether or not the intervener also made submissions related to broadcasting, will generally be compensated if they meet the requirements of section 44 of the CRTC Telecommunication Rules of Procedure (the Rules) (such as those for travel to the hearing); and

b) costs that are specific to submissions related to broadcasting (such as legal fees for time spent on such submissions) will not be compensated.

While the Commission is not bound to follow this approach again, interveners should identify in their costs applications the telecommunications-related issues or matters for which an amount is claimed, for example:

Legal fees        -video relay service                                                              A hours
                       -911                                                                                     B hours
                       -application of the policy direction                                         C hours
                       -universal design, telecommunications services                      D hours
                          and equipment

Where a single itemized expense has been incurred for both telecom and broadcasting-related issues, for example an expert's report on the accessibility of TSPs' and broadcasting distribution or programming undertakings' websites, the intervener should state the percentage of the expense that is associated with telecommunications, for example:

Expert report on website accessibility        $X x Y % (telecommunications) = $Z

The test to be met for an award of costs is set out at subsection 44(1) of the Rules . Within 30 days of the last day   of the hearing, or another date set by the Commission, an intervener seeking costs must submit a written application in which it explains how the intervener meets this test, namely that the intervener:

(a) has, or is representative of a group or class of subscribers that has, an interest in the outcome of the proceeding of such a nature that the intervener or group or class of subscribers will receive a benefit or suffer a detriment as a result of the order or decision resulting from the proceeding;
(b) has participated in a responsible way; and
(c) has contributed to a better understanding of the issues by the Commission.

Paragraph 44(6)(b) of the Rules specifies that c osts awarded   "shall not exceed those necessarily and reasonably incurred by the intervener in connection with its intervention".  

The CRTC has generally considered that to the extent that submissions are unnecessarily lengthy or repetitive, or address irrelevant issues, the associated costs are not "reasonably and necessarily incurred".   Public interest and consumer groups often work together in CRTC proceedings, with one party making substantive submissions on a particular issue and other such groups simply indicating their support for those submissions so as to minimize overlap and repetition.

While individuals are entitled to claim expenses they incurred to participate in the proceeding, the CRTC has only very rarely awarded costs to individuals for time spent preparing for and participating in proceedings.  

Yes.   These costs are called interim costs.   Subsection 45(1) of the Rules provides that interveners may apply to the Commission for an interim award of costs.  

In the past, the Commission has awarded interim costs for such disbursements as transcripts, translation, and the costs of travel and accommodation for attendance at a hearing. To date, the Commission has not found it necessary to award interim costs to cover fees, whether in-house fees/salaries or disbursements for fees for outside experts.

The test for interim costs is similar to the test for final costs, although it is forward-looking and also includes the need to satisfy the Commission that the intervener "does not have sufficient financial resources available to participate effectively in the proceeding in the absence of an award of [interim] costs". [7]  

In assessing whether or not interveners applying for interim awards can demonstrate to the Commission's satisfaction that they can contribute to a better understanding of the issues by the Commission, the Commission has generally considered both the applicant's performance to date in the proceeding in which an interim award of costs is sought and, where applicable, the applicant's past performance in Commission proceedings.

As provided by paragraph 44(5)(b), interim costs awards are subject to re-examination and adjustment at the conclusion of the main proceeding.

The same forms and application process (except timing) as those for final costs applications apply to interim costs applications.   See the next section for more details on how to apply.

In a letter accompanying the application for costs, applicants should state the full amount claimed and may suggest the appropriate respondents (i.e. payors) from among the participating TSPs. In that letter applicants also need to explain how they meet the applicable test (i.e. under section 44 or 45 of the Rules ).

Applicants need to complete and attach completed forms [8] that set out the details of the amounts claimed for expenses such as transportation costs, disbursements for photocopies, experts' reports, etc., and legal fees (where applicable).   Applicants are to use the costs guidelines in the Legal Directorate's Guidelines for the Taxation of Costs , revised as of 24 April 2007 , [9] which sets out the approved rates for expenses.

Each applicant must file a copy of its application with the CRTC.   (Due to the modified procedures adopted in this proceeding, it is not necessary for parties also to serve each other.) Within 10 days of the submission of an application for costs, a participating TSP may file an answer to the application. Within 10 days of the submission of an answer, an applicant for costs may file a reply to the TSP's answer.

While the Rules contemplate a two stage application process, in which applicants for costs first apply for approval of their right to costs then apply to have the specific amount of their costs award fixed (or "taxed"), interveners now usually submit all documentation at the same time and request that costs be fixed.   The resulting costs order then generally deals with both issues at the same time. [10]

If you require accommodation with regard to the procedures for submitting applications for costs, please contact the Commission toll-free by telephone at 1-877-249-2782 or TTY at 1-877-909-2782, or by e-mail at jennifer.eustace @crtc.gc.ca to make alternate arrangements.

[1] Unresolved issues related to the accessibility of telecommunications and broadcasting services to persons with disabilities 10 June 2008

[2] See http://laws.justice.gc.ca/en/B-9.01/

[3] See https://laws-lois.justice.gc.ca/eng/acts/T-3.4/   The CRTC also derives powers under the Bell Canada Act (S.C. 1987, c.19 as amended), however these are used much less often.

[4] See sections 7, 26 and 27 of the Broadcasting Act and sections 8 and 47 of the Telecommunications Act.

[5] For those with access to the internet, this should be done by e-pass at http://support.crtc.gc.ca/rapidscin/default.aspx?lang=en&notice=2008-8

[6] See the revised schedule at http://www.crtc.gc.ca/PartVII/eng/2008/8665/c12_ 200807943. htm

[7]   These criteria are set out in subsection 45(1) of the Rules and provide that the applicant for costs:

( a ) has, or is representative of a group or class of subscribers that has, an interest in the outcome of the proceeding of such a nature that the intervener or other party will receive a benefit or suffer a detriment as a result of the order or decision made following the proceeding;
( b ) can demonstrate to the satisfaction of the Commission that he can contribute to a better understanding of the issues by the Commission;
( c ) undertakes to participate in the proceeding in a responsible way; and
( d ) can satisfy the Commission that he does not have sufficient financial resources available to participate effectively in the proceeding in the absence of an award of costs under this section.

[8]   The forms for costs applications are available at http://www.crtc.gc.ca/eng/forms/form_300.htm

[9] See https://crtc.gc.ca/eng/forms/form_301.htm

[10] See Guidelines for the Taxation of Costs , May 15, 1998 regarding the change from the two-step process at https://crtc.gc.ca/eng/forms/form_302.htm

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