Tiny punctuation mark, big legal lesson
Rogers may appeal the CRTC comma ruling, and the case is sure to be in the law school curriculum this fall, BEPPI CROSARIOL writes
BEPPI CROSARIOL
globeandmail.com
August 16th, 2006

The "tele-comma" may be going to court.

Rogers Communications Inc. said it is "strongly considering" appealing a controversial ruling by the Canadian Radio-television and Telecommunications Commission that enabled telephone company Aliant Inc. to break off a multimillion-dollar contract because of a single comma.

And if the Federal Court of Appeal agrees to hear the matter, the amazing case could add clarity to the perennial debate over just how much weight should be given to grammar when two parties clash over the intended meaning of language.

"With great respect to the CRTC, I don't think the decision was correct," said Ken Engelhart, Rogers' vice-president of regulatory affairs. "It completely ignores the intention of the parties."

The dispute, which has kindled spirited debate, as well as no shortage of chuckles among lawyers since it was reported in The Globe and Mail last week, relates to a deal to string cable-TV wires along tens of thousands of hydro poles in New Brunswick.

Toronto-based Rogers believed it had an iron-clad, five-year deal to use the poles starting in 2002, with a built-in automatic five-year renewal as long as neither party decided to terminate it.

Saint John-based Aliant, which manages the poles in question on behalf of New Brunswick Power, disagreed. It cited a provision in the 14-page contract that, taken literally, gave it the right to opt out at any time -- even during the first five-year term -- with one year's notice.

The upshot: Rogers became vulnerable to a steep rate hike. At the time the parties were debating the contract, the projected hike would have cost Rogers $2.13-million but a subsequent ruling by the New Brunswick public utility board effectively shaved the figure down to about $1-million -- essentially doubling the annual rate to about $18 a pole from $9.60.

Thanks to the CRTC ruling, which relied on written submissions rather than oral arguments and expert witnesses, law students across the country will now be getting sober warnings about the importance of grammar.

Peter Ruby, a litigator at Goodmans LLP who teaches telecommunications and Internet law at the University of Toronto, is one of several lawyers contacted for this story who said he'll be citing the case in class this fall.

"The interesting bit here is that it is a good example of the modern approach to interpreting documents," Mr. Ruby said.

He argued the CRTC was merely following the lead of Canadian courts, which in recent years have tended to favour the "plain and ordinary meaning" of sentences. "If it's clear what it means and if the context doesn't suggest an absurd outcome, then that's the interpretation you go with," he said, adding that lawyers are obligated to pay close attention to language. "What we have to remember is that people are allowed to make bad deals."

As it happens, the Rogers case is far from unusual in turning on a point of grammar. Contract disputes very often parse the finer shadings of words and rules of punctuation. However, it is notable for two reasons, both the seven-figure size of the outcome and the fact the parties were willing to stand their ground rather than settle.

Mr. Ruby said he was recently involved in a multimillion-dollar shareholder dispute over a semicolon that ultimately determined which party would get a majority stake in an entertainment company, but the parties played it safe and negotiated a private compromise.

And the Rogers case also comes with an ironic twist. The contract, it turns out, wasn't even drafted by the parties. It is a boilerplate document used by all Canadian cable and telephone companies for utility-pole access arrangements and was initially hammered out between the Canadian Cable Television Association and Stentor, the former alliance of phone companies.

Mr. Engelhart said the CRTC decision is particularly odd because he believes the original framers of the contract were trying to establish long-term agreements and would have endorsed Rogers' interpretation of the disputed clause.

"The CRTC's interpretation completely ignores the words. The words say there's a five-year term," he said. "For some reason, they got confused or hung up by this comma." A spokesman for Aliant said the company declined to comment on the case.

Timothy Pinos, a commercial litigator and partner at Cassels Brock & Blackwell LLP, was one of two outside lawyers Mr. Engelhart consulted for an objective opinion when the dispute arose 18 months ago. Mr. Pinos said he still supports Rogers' position because the CRTC ruling effectively raises the question of why the parties would make reference to a five-year term if the contract was open to cancellation at any time.

He said the CRTC's interpretation effectively renders the five-year term "meaningless" and thus opens the door to an alternative reading on appeal.

Mr. Pinos said he's not surprised the case has captured media and public attention, particularly in the wake of the popularity of Eats, Shoots & Leaves,a runaway bestseller by British writer Lynne Truss, which underscored the general decline in punctuation proficiency.

In addition, he said there could be an element of legal schadenfreude at play. "There's also, I guess, the attraction of lawyers being hoisted on their own petard and all of that," he said with a chuckle. "I think it reinforces the lessons that everyone is taught at some point in their legal career. Write as clearly and as simply as possible."

Mr. Ruby adds that the case is also a cautionary tale for consumers of legal services. "I always tell my clients to draft a contract properly rather than pay me to litigate it later."

bcrosariol@globeandmail.com

The clause of contention

The CRTC ruling: Aliant, the Maritime phone company that had granted hydro-pole access to Rogers Communications, could terminate its five-year contract with Rogers prematurely because of the presence of the second comma in the following sentence: ". . . this agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party."

Standard rules of grammar: The presence of both commas creates a parenthetical clause within the sentence. Thus the termination clause that begins with "unless and until" applies to the initial clause regarding the first five-year term, not just to the subsequent renewal periods. In other words, had the disputed second comma not been there, the contract would have read as Rogers intended because the "unless and until" clause would have applied only to the subsequent five-year terms, meaning that Rogers would have had an iron-clad agreement for at least the first five years.