The placement of a comma in a contract between Rogers Communications Inc. and Aliant Inc. looks like it will cost Rogers dearly\u2014an extra $2.13 million. Rogers thought it had a 5-year deal with Aliant to string Rogers\u2019 cable lines across thousands of utility poles in Canada for an annual fee of $9.60 per pole.<\/p>\n
But early last year Rogers was informed that the contract was being cancelled and the rates were going up. Impossible, Rogers thought, its contract was iron-clad until the spring of 2007, and could potentially be renewed for another 5 years.<\/p>\n
The construction of one sentence in the contract allowed the entire deal to be scrapped with only a year\u2019s notice, Aliant argued [1].<\/p>\n
The contract states that the agreement \u201cshall continue in force for a period of 5 years from the date it is made, and thereafter for successive 5 year terms, unless and until terminated by 1 year prior notice in writing by either party.\u201d<\/strong><\/p>\n Sous r\u00e9serve des dispositions relatives \u00e0 la r\u00e9siliation du pr\u00e9sent contrat, ce dernier prend effet \u00e0 la date de signature. Il demeure en vigueur pour une p\u00e9riode de cinq (5) ans \u00e0 partir de la date de la signature et il est subs\u00e9quemment renouvel\u00e9 pour des p\u00e9riodes successives de cinq (5) ann\u00e9es, \u00e0 moins d’un pr\u00e9avis \u00e9crit de r\u00e9siliation d’un an signifi\u00e9 \u00e0 l’autre partie.<\/strong><\/p>\n CRTC agreed with Aliant that the right to cancel did apply to the first five years of the contract. \u201cBased on the rules of punctuation,\u201d the comma in question \u201callows for the termination of the [contract] at any time, without cause, upon one-year\u2019s written notice,\u201d the CRTC said.<\/p>\n Notice the second comma. Did it have the effect of permitting the contract to be terminated by one year\u2019s notice at any time, or only after the initial period of 5 years had expired? \u00a0The CRTC held that the contract could be terminated at any time<\/p>\n In the Commission\u2019s view, the \u201crules of punctuation\u201d meant that the second comma\u2014placed as it was before the phrase \u201cunless and until terminated by one year\u2019s prior notice in writing by either party\u201d\u2014meant that that phrase qualified both the phrases before it. One party argued that the phrase \u201cunless and until terminated by one year\u2019s prior notice in writing by either party\u201d qualified only \u201cthereafter for successive five (5) year terms\u201d.<\/p>\n On this construction, the agreement would continue in force for at least the first five-year period. But that construction would deny the efficacy of the second comma. \u00a0Hence, the \u201cplain and ordinary meaning\u201d of the clause allowed for termination at any time without cause, upon one year\u2019s written notice… a report of the decision in the Canadian Globe and Mail on 6 August 2006 calculated the cost of the \u201cgrammatical\u00a0blunder\u201d\u00a0as\u00a0upwards\u00a0of\u00a0$2.13m\u2014being\u00a0the cost to the losing party of the winning party\u2019s right to terminate the contract on one year\u2019s notice.<\/p>\n Rogers\u2019 intent in 2002 was to lock into a long-term deal of at least 5 years, but the regulators with the CRTC stated that the validity of the contract came down to the second comma in the previous sentence. Had it not been there, the right to cancel wouldn\u2019t have applied to the first 5 years of the contract, and Rogers would be protected from the higher rates it now faces.<\/p>\n The regulator stated that the comma in question \u201callows for the termination of the [contract] at any time, without cause, upon 1-year\u2019s written notice.\u201d Rogers intention was to shield itself from rate increases, but now it will see its costs increase to up to $28.05 per pole. Rogers will probably have to pay $2.13 million more than expected, based on rough calculations.<\/p>\n August 21, 2007<\/strong><\/p>\n Rogers claimed victory yesterday after the French version of a five-year contract convinced the CRTC to overturn an earlier decision in which the regulator said the placement of a comma justified Bell Aliant’s decision to terminate the contract early.<\/p>\n In the English version, the CRTC said last year, the insertion of a comma to separate a termination clause from a clause about future renewals of the contract suggested the contract could be terminated before it expired in 2007. \u00a0Had there been no comma, it would have been clear that the right to termination applied only to the end of the contract that set telephone pole access fees and future renewals. In the French version, the commission concluded yesterday, there were no errant commas to cloud the termination rights.<\/strong><\/p>\n “We’re pleased that we prevailed,” said Pam Dinsmore, vice-president of regulatory issues for Rogers. “We’re pleased the commission interpreted the clause in the same way we had done.”<\/p>\n In addition to providing the commission with a French version and drafts of the contract, Rogers took issue with the federal regulator’s grasp of grammar, insisting the “rule of punctuation that the Commission purported to rely on did not exist” and was “inconsistent with ordinary English.”<\/p>\n Even if the commission’s “alleged punctuation rule” existed, it was an error of law to rely on it without consider “broader rules of construction,” Rogers argued.<\/p>\n Bell Aliant had argued that last year’s decision in its favour should stand, saying the decision was “valid, regardless of the rules of punctuation and an inquiry into the separation of phrases by commas was unnecessary.”<\/p>\n The firm further argued it was “inappropriate” to try to determine the intent of the contract in French because it was “a form of words and a language” the companies did not use.<\/p>\n But in yesterday’s decision, which reversed the earlier ruling, the CRTC said it was appropriate to review the French version of the contract because the commission had approved the pole access rates and regulations in both English and French in 2000 when they were put in place.<\/strong><\/p>\n “The Commission considers that, between the two versions, it is appropriate to prefer the French language version as it has only one possible interpretation, and that interpretation is consistent with one of the two possible interpretations of the English language version.”<\/strong><\/p>\n The dispute now boils down to $800,000 in fees Rogers has paid for access to telephone poles since the more favourable contract with Bell Aliant was terminated prematurely last year. \u00a0“Unfortunately it’s not over. There’s still money at stake,” Ms. Dinsmore said yesterday.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":" The placement of a comma in a contract between Rogers Communications Inc. and Aliant Inc. looks like it will cost Rogers dearly\u2014an extra $2.13 million. Rogers thought it had a 5-year deal with Aliant to string Rogers\u2019 cable lines across thousands of utility poles in Canada for an annual fee of $9.60 per pole. But … Continue reading “rogers and the comma”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[75,95],"tags":[],"class_list":["post-10213","post","type-post","status-publish","format-standard","hentry","category-dissertation","category-dubash"],"_links":{"self":[{"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/posts\/10213","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/comments?post=10213"}],"version-history":[{"count":5,"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/posts\/10213\/revisions"}],"predecessor-version":[{"id":10215,"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/posts\/10213\/revisions\/10215"}],"wp:attachment":[{"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/media?parent=10213"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/categories?post=10213"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.terada.ca\/discourse\/wp-json\/wp\/v2\/tags?post=10213"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}