Affidavit for Motion to Strike

Affidavit for June 8, 2005 Motion to Strike Paragraph 4

from Rogers October 4, 2005 Statement of Defence


1. On December 17, 2005, Toronto’s Globe and Mail newspaper carried an article (Exhibit 1) about the theft of my cell phone in the summer of 2005, about my struggles to have Rogers zero my account of the over $14,000.00 of phone calls made on that stolen cell phone, and about Ted Rogers’ own cell phone being cloned by a group linked with Hezbollah. The latter story had been uncovered by Harry Gefen, a journalist, as he was trying to assist me in my struggles to have those charges eliminated.

2. On the morning of December 17, as I was driving on my way to CBC television and radio to give interviews about my experiences with Rogers, Mr. Ted Rogers himself called me on my cell phone. As I was in the car, I told him that it wasn’t prudent of me to speak on the cell phone and I asked him to call my home phone number and leave a message, assuring him that I would get back to him.

3. When we returned home later in the afternoon, my 12 year old son indicated that Mr. Rogers had called, and we saw that Mr. Rogers had left two further messages on my answering machine. In the second of those phone messages, Mr. Rogers apologized unreservedly for what his corporation had put me through. He said he would zero my bill. He accepted full and unequivocal responsibility for all of the vexacious behavior that his corporation had subjected me to relating to my account (4-6020-6717). I have made a transcription of that phone message and it is attached to this affidavit at Exhibit 2.

4. We returned Mr. Rogers’ messages later in the evening. Harry Gefen spoke with Mr. Rogers and indicated to him that we appreciated the offer to pay for our costs relating to our debacle with Rogers Wireless. Mr. Gefen also indicated that in fact we had expended hundred and hundred of hours in trying to get the ear of someone reasonable and accountable at the corporation. Mr. Rogers told Mr. Gefen that if he and I would compose a list of our costs and the hours we had expended on the debacle, he would immediately compensate us for our losses. Mr. Gefen noted that Mr. Rogers might not be aware, but there were in fact a great number more newsworthy matters that had not appeared in the Globe and Mail article on December 17. Mr. Gefen said that he and I would like to invite Mr. Rogers to our home for tea so we could discuss with him the array of matters that were not covered. “Mr Gefen,” replied Mr. Rogers. “I accept!” Mr. Gefen and Mr. Rogers acknowledged that we were both about to depart the country for two weeks and it was agreed that we would have Mr. Rogers over for tea in the New Year.

5. The front page of the Globe and Mail on December 19, 2005 announced to the public that Mr. Rogers had zero’d my bill, apologized unreservedly, and offered to pay for our losses (Exhibit 3). The Globe also noted that Mr. Rogers had accepted our invitation to tea.

6. In the media coverage that followed the story, Jan Innes, Vice President of Communications for Rogers, made several announcements on behalf of Rogers, echoing the apology, and announcing Rogers’ intention to investigate what had happened in the case of my account. On December 19, on the CTV national program Canada AM, Ms. Innes spoke on the corporations’ behalf and said that Rogers did not follow their normal procedure in my case. She reiterated that Rogers was very sorry that I had had that experience with Rogers. (Exhibit 4).

7. In paragraph 4 of Rogers’ statement of defence, the defendant argues that I was responsible for all calls made on my phone prior to the date of notification that my phone was stolen. (I notified Rogers immediately of the theft of my cell phone the moment I found out about it on August 27.) The defendant relies upon paragraph 19 of the Wireless Service Agreement (WSA) for this assertion.

8. Rogers also argues at paragraph 4 that Rogers had no opportunity to take any action to stop fraudulent calls on my cell phone prior to August 28, 34 after the atypical calls started, and 16 days after they ceased.

9. Clearly, Mr. Rogers unequivocal apology makes clear that I was NOT responsible for those phone calls. Ms. Innes’ comment regarding the failure to apply a “normal procedure” to my account confirms the assertion of my amended pleadings at paragraphs 36-37: Rogers indeed HAS a protocol (as affirmed by Cindy Hopper, manager of Rogers’ Fraud department) for detecting atypical call patterns, alerting consumers to irregular activity, and shutting off wireless services immediately if the consumer cannot be reached. (Exhibit 8). As the media coverage reveals (Exhibit 5: Rogers in Damage-control), that protocol has been in place since 1997 when Ted Rogers’ own cell phone was cloned by a group linked with Hezbollah.

10. Clearly Rogers WAS able to stop those fraudulent phone calls if they had followed their “normal procedure” for atypical calls in my case.

11. Although Rogers argues at paragraph 4 that I am bound by paragraph 19 of the WSA, the Chief Executive Officer and founder of Rogers Group of Companies, Mr. Ted Rogers himself, is clearly disinclined to hold the consumer to the terms of Rogers’ standard form contract, finding such a claim to be, in his words, inexcusable.

12. Further, at least two of the emails that I received following the publication of my debacle with Rogers in the Globe and Mail indicate that, as a result of my case, Rogers has changed its policy with respect to lost or stolen cell phones.

13. At page 18 of Exhibit 7, one Rogers’ consumer states clearly that Lisa Brussa-Toi, assistant to the President of Rogers Wireless Inc, informed him on January 17, 2006 that as a result of my case, Rogers has changed its policy for lost and stolen cell phones and now treats fraudulent misuse in the same manner as do credit card companies. Rogers’ new policy is that “if a phone is lost or stolen and abused, [Rogers] will conduct an investigation and [Rogers] will not charge the victim for all those fraudulent charges.” (See Exhibit 7 at 18).

13. I alerted a second Rogers consumer (who found himself facing a similar travail to my own regarding a stolen cell phone) to this change in policy. At page 24 of Exhibit 7, this consumer reported to me immediately that by informing Rogers that he was aware of the change in policy, he was able to bring about a swift zeroing of his bill – and a complete reversal of the contractual claim at paragraph 19 of the WSA that holds consumers liable for total charges on stolen or lost cell phones.

14. In addition to Mr. Rogers’ interpretation of the behavior that ensued from a narrow reading of paragraph 19 of the WSA as ‘inexcuseable’, Rogers has subsequently acted in accordance with this interpretation by an across the board change in policy for Rogers consumers.

15. In light of the evidence presented at paragraphs 1-14 above, Rogers has clearly acknowledged the lack of validity of the contractual clause holding me liable for the total charges on my stolen cell phone; as well as the insufficiency of support for their Statement of Defence in paragraph 4.

16. Paragraph 4 of Rogers’ Statement of Defence should be struck from the Record accordingly.