About that contract

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Warning: This page may give you a headache.

The Toronto Star article that covered my trial with Rogers notes that Judge Thomson excoriated me for not having included the proper version of the contract in my pleadings.

Though no doubt there are some scrupulous souls who hold on to each and every standard form contract that they sign, when I entered my contract with Rogers Wireless on August 14, 2004, I had just sold and moved out of my home in York Region on July 31 and was staying in temporary quarters until I could move into my new home in Cabbagetown on September 1. I had quite a few boxes to pack and unpack several times over. A year later, on August 27, 2005 (when Rogers told me I owed them over $14,000), I'll be damned if I could find my copy of that original contract.

It was a certainty that Rogers had their own copy of it. In fact, I had a motion in Small Claims Court against Rogers in mid-December, 2005 because when Rogers inserted it in the court record in its statement of defence, the corporation also reproduced my Social Insurance Number (SIN) number and driver's license on an attached document that contained my signature and home address (a file that anybody can access for a mere $10 fee in keeping with the open court principle). Rogers agreed to redact my SIN from the public record if I agreed to seal the court record - which would have been a nifty little way for Rogers to preclude me from talking about anything related to my court case in exchange for the security of my privacy rights. (The trial judge, on February 22, 2007, passed back all of the original pleadings to each party so my SIN number is no longer there, for all to see. Lang Michener opted to redact my SIN from all of its subsequent amended pleadings after I sent a complaint to the Privacy Commissioner of Canada).

Certain from the outset that Rogers would have a copy of our contract, I called Rogers on September 3, 2005 and asked for a copy of my contract to be sent to me. I was told by a Customer Service Rep called Donna she would promptly put it in the mail for me. I never got it.

Rogers' legal department assigned a legal clerk to my account very swiftly into my dispute with the corporation and so, in the first week of September '05, I asked her to provide me with a copy of the contract that bound Rogers and me.

That requested copy of my original signed contract never came.

In response to my request, Rogers' legal department sent me the following email on September 7, 2005:

 

Sr. Litigation Law Clerk
Rogers Communications Inc.

Attached to this email was a copy the Rogers' Wireless contract that was in effect in July, 2005. It has a clause on it that stipulates that Rogers "may change, at any time, any charges, features or other aspects of the Service of any provision of this agreement, upon advance notice to you." Payment of the next invoice signifies consent to those modifications.

I sent another letter asking for a copy of my original signed contract on September 12, 2005, as per my rights under term 25 of this contract to "inspect any of our records related to [my] Service".

My copy of the original contract never came.

What an occult and elusive document, my contract with Rogers.

All I had in hand after my multiple requests for a copy of our agreement was the contract sent to me by Rogers' legal department on September 7, 2005 in response for my request for a copy of the contract that bound us.

I believe I was left (by Rogers' legal department) with a reasonable apprehension that the July, 2005 contract sent to me by Rogers' legal department on September 7, 2005 WAS the contract by which we were bound, particularly when conjoined with the term that allows Rogers to unilaterally change the contract.

As noted above, Rogers' statement of defence (filed and served on October 4, 2005) inserted a copy of the original contract that I signed as an attachment. It appears that it had already been photocopied several times before it was placed in the statement of defence. This is precisely how intelligible that contract was (I have scanned it from Rogers' statement of defence):

 

If you think it would be helpful to your eyesight to have this document available to you in a PDF - which has a magnifying glass function - here it is.

Now I may be wrong, but I don't think there are many people out there who are going to be able to read the only copy of my original contract that Rogers made available to me (the one that Lang Michener inserted into its statement of defence on October 4, 2005). Let me say, at least, that I'll be damned if I could decipher much of it.

Out of your busy day...

Personally, I find it already a bit odd and nefarious that a corporation can unilaterally change the contract that you signed and then tell you that you are bound by the new version if you pay the next invoice - can presume that ordinary consumer, as they tear through their busy day, can discern an "insert" which is a contract from the multifarious junky inserts that are crammed into an invoice; can presume that the consumer has read and understood these terms; can presume that payment of the next invoice constitutes consent.

I find it even more bafflingly nefarious that a corporation would go further and expect consumers (more exertingly) to routinely check Rogers' contract on-line, multiple clicks away from the Rogers' home page and then presume that consent to modifications made therein can be wholly inferred from the consumers' next payment of an invoice. This formula for consent reads like the rohypnol of consumer contracts.

While corporations are known to be rational maximizers and this kind of cunning contractual manoeuvre is not out of character, I'm not sure what to make of a superior court judge finding such conduct on a consumer contract to be kosher.

This latter understanding of how to read Rogers' contract, however, has been upheld by a Superior Court judge in Ontario. Here's the wiki on that decision:

Kanitz v. Rogers Cable Inc., [2002] O.J. No. 665 is a leading Canadian decision on website service contracts. The court held that a posting on a corporate website is sufficient notice to bind customers to changes in their user licenses.

A number of Rogers Cable customers started a class action to challenge Rogers amending of the arbitration provision in their user agreement. They claimed that customers were not given sufficient notice of the amendments to make it valid. Rogers should have emailed all its customers to properly notify them.

The Court held that the notice given was sufficient and that an email was not necessary. Customers, the judge held, were obliged to check the website from time to time for amendments to their user agreements.

What a slippery object, Rogers' contract with consumers!

The structure of this schema appears to cast the same shadow over Rogers' relations with consumers as the infamous negative option billing fiasco of the 1990s in which Rogers' cable consumers were automatically provided with unsolicited cable channels and Rogers tried to make it incumbent on the consumer to either pay for the service or specifically decline it in advance of billing.

There may well be souls who are prepared to pass judgment upon me for not having rushed to the bank with my copy of a freshly signed Rogers contract to have it securely locked away in a safety deposit box in the event of future litigation. In light of the fact that the original signed contract is apparently not the contract that binds the parties, such a judgment has to be the soul of both prissiness and futility. Regardless of what is signed, Rogers reserves the right to change the terms when it sees fit and presume consent from invoice payment.

It's not as though Rogers changes the terms on consumers once in a blue moon. Rogers' consumer contract is perpetually morphing. This much was conceded by Rogers VP corporate communications to the Toronto Star reporter who covered our trial: "In fact," Jan Innes reports for the corporation, "Rogers had been working on new contracts for their services before the incident with Drummond began and has been rolling them out all year." The July 2005 contract that Margaret Tsetsakos sent me in September of 2005 has disappeared completely from Rogers' web page so far as I can tell.

I have to say, I've got a suspicion that I am one of the very few Canadians who regularly peruses Rogers' terms and conditions on-line on a regular basis. Suing Rogers provided me with a rational excuse for this use of my time.

When the rest of you hastily shut off the screen when your partner comes into the room, suspecting you of surfing the internet for porn, is it really this surpassingly neurotic and shameful activity that you're up to?

As it happens...

Apparently Rogers' legal department had not yet concocted this cunning contractual scheme on August 14, 2004 when I entered my original contract. But I only found this out on February 20, 2007.

The very first time that I got a clean and legible copy of the contract that bound Rogers and me together was on the first day of our trial when Judge Thomson, as I was testifying and referring to the contract, said that she too could not read a word of the contract that Lang Michener had provided in their statement of defence. Joe D'Angelo passed up a clean and legible copy to Judge Thomson. And he passed me a clear and legible copy, for the first time, as well.

The trial took place on Tuesday and Thursday (February 20 & 22, 2007). I had to teach law at Osgoode on Wednesday February 21, 2007 and so had spent the night before (Tuesday) doing my class preparation. My daylight hours on Wednesday, February 21 were thus taken up with my professional obligation to provide the next generation of Ontario lawyers with the small pieces of the legal puzzle (those for which I had pedagogical responsibility) that constitute the practice of law.

After my day job was done and my son taken care of for the night, I started in on drafting my closing arguments for the last day of trial. I slept for three hours that night as I scrambled to interpret the contract that I had asked for in September of 2005 and had just been handed on February 20, 2007 on the very first day of the trial.

Sleepless night aside, all's well that ends well. I closed on the correct contract. The judge ordered Rogers to pay me both compensatory and punitive damages.

But I'm left wondering what these interactions around Rogers' contract say about the practice of law into which I will be dispatching my students.

Did Rogers have an obligation to provide me with a legible copy of our original contract after I asked for it multiple times?

When did I become an irredeemable adversary to whom minimal obligations persisted and few holds were barred?

Isn't this how one courts enemies?

An advocate knows but one person in all the world

The adversarial system in common law has fostered the principle that lawyers have a duty to identify their interests with their client's.

The common law judge, in theory, sits back as a neutral arbiter of the facts and legal arguments presented by zealously advocating counsel. The battle between these latter two opposing figures is supposed to provide us with our most proximate version of "the truth" or of "justice", which should emerge out of the battling zeal.

Zealous advocacy is one of the driving engines of civil procedure in the common law world (as opposed to the civil law world). We don't go at the truth head long in a court of law. We don't just throw caution to the wind and aim directly for justice. We've had since 1066 to convince ourselves that the best route to these utopian horizons is by ploughing laboriously through the thorny adversarial thicket.

The idea that lawyers are meant to be, first and foremost, zealous advocates was famously articulated by Lord Henry Brougham in 1820, in his defence of Princess Caroline of Wales against charges of adultery by her estranged husband, the future King George IV. Brougham's sly reminder to the king that he was already secretly married - a fact that Brougham intimated might have to be aired were the case to be fully prosecuted - led to charge of adultery being dropped.

It also led Brougham to famously state that "an advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client."

I have been asked rhetorically several times whether I think that Rogers' counsel has been wrecklessly driving the course of this ill-fated litigation or whether Lang Michener's client has stubbornly resisted a more rational approach to the dispute. Who knows? Those communications are paradigmatically privileged. From the outside, Rogers' legal team, Rogers' legal department, and Rogers Communications are seamlessly of a piece. They each know but one person in all the world: Rogers.

Is it correct (morally and legally) to say that all is right with the world when Rogers and Lang Michener remain completely solipsistic and know but one person in all the world?

The Law Society of Upper Canada's Rules of Professional Conduct echo the virtues of the lawyer's single minded identification with his or her client. Rule 4 stipulates that "[W]hen acting as an advocate, a lawyer shall represent the client resolutely...".

This has been interpreted in the commentary to the rules to mean that the lawyer "has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law."

More explicitly, in adversary proceedings, "the lawyer's function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged ... to assist an adversary or advance matters derogatory to the client's case."

Fearlessly. Resolutely. Refusing all assistance to an adversary. Litigation is a grave and serious business, apparently demanding a steely approach to each arena as though it were the supreme court of the land, with fortunes and dynasties hanging upon each outcome.

Rule 4 also demands a balancing of this ferocious stance with the virtues of honour, candour, fairness, courtesy, and respect.

I am left wondering how honourable it is for a contract to be such an elusive and slippery thing.

And I wonder if there is not greater dishonour in losing a trial when winning is hinged upon such an occulted and slippery contract.

Far more to the point, when it is a consumer contract that is at stake and the venue is small claims court, how much more farce is in evidence than gravitas?

 

© March 5 , 2007, Susan G. Drummond - Do not circulate or cite, in whole or in part, without permission.