Anatomy of a Summary Judgement Motion

Acetabula et Calculi; Otherwise known as the old Cups and Balls Routine

Rogers asked my permission to adjourn our September 11, 2006 trial date in order that Ted Rogers' lawyer, Donald Plumley, QC, could quash my summons to witness of Ted Rogers. Although I had told Mr. Plumley in June that I would make myself available for motion dates throughout August, and although Mr. Plumley, by not availing himself of this offer, left things to the last minute so that he needed to adjourn the trial in order to prepare his case, I granted consent to adjourn. Mr. Plumley wrote to me that he had reserved the motion date of October 26, 2006 for his motion to quash.

Then, on October 4, 2006, I got a letter from Joseph C. D'Angelo, the head of Lang Michener's commercial litigation group, presenting me with an offer to settle my Small Claims Court action. If I didn't accept that offer, then Joe informed me that he was instructed to use the October 26, 2006 motion date to get a summary dismissal of my claim.

Very nifty. Rogers switched its motion to quash for a motion for summary judgment.

Before I dissect Rogers' October 4, 2006 offer to settle, I should back track and cover a few preliminary matters.

Chronology of Offers to Make Me Go Away

Recollect that Rogers sent me an offer to settle my Small Claims Court action on October 14, 2005. In that offer, Rogers suggested that I should pay Rogers Wireless $2,000 to make my Small Claims Court action go away, i.e., Rogers shacked up a fictional debt of over $14,000 and then offered to give me just over a $12,000 reduction on this fictional debt. This was Rogers in a compromising mood, offering to give me something.

I responded by reminding Rogers that I had asked for a series of documents from the corporation which they had not provided to me and that I wasn't in a position to negotiate without those documents.

Then on December 17, 2005, the Globe and Mail did a front page story about scandalous disclosures that Harry Gefen uncovered regarding Ted Rogers' cell phone being cloned by a group linked with Hezbollah.

Ted Rogers called me that day and apologized into my answering machine. And in a phone conversation with Harry Gefen later that evening, he offered to zero my fictional $14,000 bill, and he offered to pay for the damages resulting from the four-month-long debacle related to my cell phone.

On January 25, 2006, Ted Rogers sent me a cheque for $5,309.60 that he characterized as a "goodwill payment" and reimbursement for "out-of-pocket expenses". I certified that cheque on February 9, 2006 after Ted cancelled our appointment for tea.

According to Angus, who filed Rogers' amended pleadings on August 14, 2006, Ted Rogers' phone call in which he offered to pay my damages was an opening ambit in an "oral contract". (Lawyers who are reading this can begin to snicker now). When I certified that January 25, 2006 cheque, my action was an acceptance of that offer. And both acts (the oral offer and the certification of the cheque) constituted a "Settlement Agreement". Because we had a "binding" settlement agreement, my entire claim, Angus plead, was barred; that is, I had no legal right to still be in court in the first place.

That was Rogers argument in August of 2006: Rogers and I had an "oral" settlement agreement and Rogers owed me not a penny more.

So, by August, 2006, we had gone from me owing Rogers over $14,000, to an offer to settle my Small Claims Court action of $10,000 against Rogers if I paid Rogers $2,000, to Ted Rogers paying me $5,309.60 as part of a supposed "oral" agreement by which, Rogers claimed, my Small Claims Court action was settled - well my part was not oral, mine part of the "settlement agreement" was an action - certification of the cheque.

By early October of 2006, Rogers changed its mind, moved by some intuition that my Small Claims Court action might not indeed be barred by an oral "settlement agreement"; maybe Rogers should throw another whack of money at it.

Rogers Agrees that it should be Punished for its behaviour

In Rogers' October 4, 2006 offer to settle, Rogers declared that they wanted to pay off my TOTAL claim (i.e., $10,000 for both compensatory and punitive damages).

Of course, this in and of itself is remarkable because by declaring its wish to pay off my TOTAL claim, Rogers appears to be saying several things implicitly - much in the same way that Michael Jackson's reported $20 million out of court settlement for civil damages resulting from sexual assault seems to be telling us something.

Off the top, maybe it should be said that by paying a reported $20 million settlement, Michael Jackson could be saying: "I'm innocent but am just so harrassed by all of the legal costs and negative publicity of this trial that I'm willing to pay the entire astronomical amount claimed to get you out of my hair."

Yes. That's possible.

Analogously, it is also theoretically possible that Rogers is prepared to pay my full $10,000 claim because they want to stop bleeding legal fees and because they want to avoid further negative publicity from this case.

There are reasons to be sceptical about those hypotheses. In the first event, Rogers just spent the equivalent of my claim ($10,000) on a motion that they lost (fighting me over a three hundred dollar difference between what I agreed to take and what they agreed to pay).

Let me just point out some other differences between Michael Jackson's plaintiif and Rogers' plaintiff:

Michael Jackson's plaintiff has signed a confidentiality clause on the settlement he reached with Mr. Jackson. Rogers seems to have a well-cultivated intuition that I'm not the kind of plaintiff who is going to agree to a confidentiality clause on any settlement agreement that I sign with Rogers.

Rogers keeps alluding to this web site in their pleadings and factums and affidavits, and Rogers' lawyer wanted the motion proceedings to be "off the record" because, he complained to the judge, I have a web site and I'm not afraid to use it.

Rogers appears to have, by now, a well-informed belief that, as this case unfolds, no one is going to have to go around talking about a "reported" $10 K settlement. Folks can refer to it, flat out, as a "$10 K settlement.

So, if the likelihood is high that Michael Jackson's spin on his "reported $20 million pay-out" is not going to fly for Rogers (that Rogers is innocent and payment of my entire claim should not be read as an admission of fault), what else might be inferred from Rogers' express desire to pay my FULL $10,000 claim?

First of all, full payment (and not a penny less) means that Rogers concedes that it is liable for the damages that I have claimed and that I have, in no way, contributed to those damages.

Second of all, Rogers is conceding, once again, that its contract is not worth the paper it is written on. Rogers' Wireless Service Agreement has the following astonishingly comprehensive waiver of liability on its contract:

Limits on Rogers’ Liability Generally


26. Except as may be provided in Section 27, below, we will not be liable to you or anyone else... for:

- any lost, stolen or damaged Cards or equipment;


- any damages, including loss of profit, loss of earnings, financial loss, loss of business opportunities, personal  injury, death or any other loss however caused, resulting directly or indirectly in connection with the terms and conditions herein and the Service or equipment, including roaming calls or from the use of our facilities by other telecommunications carriers;


These limits apply to any act or omission of us, our employees, or agents, which would otherwise be a cause of action in contract, tort or any other doctrine of law.

Rogers had claimed, at paragraph 13 of its August, 2006 pleadings, that because I had signed the contract, I had signed away my right to recover damages in breach of contract, or any other doctrine of law (such as breach of a contractual duty of good faith, or breach of a duty of care) and that, in particular, I couldn't recover damages such as loss of earnings for the several days in September, 2005 that I had to drive my son back and forth from school.

But here was Rogers saying: "Oh all right. We'll give you just over $9,000 for driving your son to and from school for 5 days."

Soccer moms of the world, rejoice! For all of those Rogers consumers who have had to suspend whatever was going on in their lives to resolve a dispute with Rogers - tracking down credit reports, contesting erroneous reports, calling multiple departments within Rogers, writing endless letters, turning up at corporate head offices with documentation in hand only to find there's no reception at Rogers and no one to speak to ...- by compensating me for the time I lost due to Rogers' breach of contract, Rogers is saying our time is worth something too.

The other intriguing thing that Rogers is saying, by offering to pay me my FULL claim, is that: "Yes indeed. You're right. In this case, punitive damages are warranted and we agree to pay them, up to the total amount that you've claimed."

By paying off a claim for punitive damages, Rogers is implicitly agreeing that the corporation has behaved in a manner that was high-handed, egregious, reprehensible, and lacking in good faith; is implicitly agreeing that the corporation accepts, in voluntarily submitting to have it knuckles rapped, that my case should serve to deter it from behaving in such a malicious manner to other Rogers consumers.

That's the message that an order (or a settled claim) for punitive damages broadcasts.

Rogers' offer further recognizes that I've had to pay a few motion and filing fees that set me back a bit. Rogers offered to pay for my court costs (which, in Small Claims Court cannot exceed $300), and they also said they'd throw in a wee bit more than $300 in costs (say about $9.60 extra).

Great. So far so good. Rogers is fully acknowledging that, despite their August, 2006 amended pleadings, the "oral contract" between Ted Rogers and me was not a settlement agreement that barred all further legal disputes. The out-of-court settlement compromise looked like this: Rogers avoids a public trial, in which its business practices would be aired, by Rogers implicitly agreeing, in paying my total claim, that punitive damages are warranted. The work of a non-profit organization, the Public Interest Advocacy Centre, dedicated to protecting consumers from abusive corporate pratices, is facilitated by a donation out of the net proceeds from the case. My court costs are paid for. Rogers is even going to throw in a bit more than the maximum in costs allowed in Small Claims Court: $300. That should take the total payment to just over $10,300.00. Right?

The only problem with Rogers' offer to settle was that Rogers claimed to be paying the TOTAL claim off (as they expressly say they want to do) by conjoining Ted Rogers' January, 2006 "goodwill payment" with another $5,000 they would pay into court.

My Counter-Offer

Joe D'Angelo's October 4, 2006 letter said that I had until October 12, 2006 to accept Rogers' offer. If I hadn't accepted it at that point, then Rogers was going to move for summary judgment on October 26, 2006.

I submitted a counter-offer to Rogers on October 12, 2006. In my counter-offer, I agreed to receive a payment of $5,301 in settlement of my Small Claims Court action for $10,000. Because Rogers had agreed, in their letter, to pay $5,000 for damages and "just over" $300 in court costs (which are ordinarily set at no higher than $300), I took them at their word and went just over $5,300, by one dollar.

But I had a very small number of non-monetary conditions attached to my counter-offer:

Consistent with my committment on this web site (a committment that appears to be irksome to Rogers) I wanted Rogers to make out a certified cheque for $5,000 to the Public Interest Advocacy Centre and delivery it to my house on October 19, 2006. The remaining sum for costs ($301.00) could be made out to me. And I wanted the President of Rogers Wireless to agree to what I thought should be a simple and uncontroversial statement of the facts in our dispute.

So, in other words, I offered to accept HALF of what I was claiming in Small Claims Court in order to resolve my legal dispute with Rogers Wireless.

Rogers didn't agree to my counter-offer to settle for half of what I was claiming. Rogers decided it would rather go to court to argue that, by paying an additional $5,000, it had paid the full $10,309.60 rather than accept my offer to accept $5,301.00 out of court.

The monetary cost of non-monetary matters

So, on October 19, 2006, instead of receiving in the mail two cheques totalling $5,301, I got a rather large factum, motion record, and authorities brief that Joe D'Angelo, the head of Rogers commercial litigation group, had clearly spent a great deal of time and thought drafting.

The factum is 6 pages long. Joe has attached a 6 page affidavit from Jan Innes, Rogers VP Corporate Communications, along with two other exhibits - one of which is Rogers' October 4, 2006 settlement offer. Two full pages of statutory rules are cited. And there is a separate book, 31 pages long, of supporting case law.

I suspect it has been a long time indeed that a Small Claims Court judge has seen such an elegant factum, supported by a diverse range of case law and statute, nicely bound and with the appropriate use of affidavit testimony. Spend a day in Small Claims Court and you'll quickly conclude that those judges are far more used to seeing barely legible, hastily scribbled arguments, not atypically on the wrong form altogether, with nary a wit of supporting law.

The measured thoughts of a partner at Lang Michener, LLP with 17 years of practice behind him - and behind him a national law firm with a yowza profile that has played "a major role in shaping Canada’s economic and political institutions" - must flag for a Small Claims Court judge that this is going to be a change of pace from his or her regular routine:

This is no ordinary Small Claims Court action. This is a Small Claims Court action on steroids.

I mention the time and thought that went into Joe's factum and motion materials because I've been told by legal practitioners who have glanced over them over that the production of those documents alone would have cost Rogers over $5,000 in legal fees.

And that doesn't include the legal costs of sending a Lang Michener partner, with 17 years of practice, to Small Claims Court to argue the case.

The monetary difference between our offers was $308.60.

The agreed statement of facts in my counter-offer must have struck Rogers as controversial enough to throw a big bundle of money into an argument for a summary judgment that the court should let Rogers off with paying me $5,000.

Rogers served me on October 19, 2006 with their costly motion record.

I served Rogers with my responding factum and affidavit on October 24, 2006.

Motions for Summary Judgement: Cathartic Buzzes Prohibited

Technically, if Party B (the Defendant) pays the FULL monetary claim into court, then that brings the dispute to an end. Party B is acknowledging liability and agreeing with the damage assessment. If Party A (the Plaintiff) continues to insist on fighting all the way through a trial, then Party B, who had made FULL payment into court can say: "Hold on now, I shouldn't have to go through the time and expense of an unnecessary trial: I've fully admitted liability and paid off the entire claim. Now I'm being gratuitously punished by being dragged through a trial - and furthermore, the court's time is being squandered just for the sake of giving Party A a cathartic buzz out of having a judge confirm for all to hear that I had, indeed, behaved like a thug. I've already admitted I was a thug. What more does this guy want from me? And why is the taxpayer paying for a trial to exact it?"

In that case, the court allows parties to argue: "There's no genuine issue here for trial. Liability is admitted. Damages are fully paid out. There's nothing left for a judge to do  but waste the court's time."

That argument in court - that there are no genuine issues for trial - is called a motion for summary judgment.

I'm gonna tell on you

As part of Rogers' settlement negotiations, on October 4, 2006, Rogers sent me a settlement offer on top of which they wrote the words "with prejudice" and in which they said: "Take our offer of $5,000 on your $10,000 claim or we're going to move for summary judgment, claiming that, with our payment of $5,000, we've fully paid your claim."

The conjunction of an offer to settle with a proviso that, if the offer is refused, Rogers will go to court to get what they cannot get by consent is a bit puzzling. Why bother making an offer if you feel you can anyhow get a juge to order the other party to accept your offer? Why not go straight for the court order?

It's sort of like the following, isn't it?:

Imagine your big brother takes your new bike for a joy ride without asking and returns home at the end of the day and informs you that he left it by the side of the road when he was buying candy from the corner store and a truck ran over it. You throw up a mighty storm of complaint and head off to go tell mom. But as you're on your way up the front stairs, your big brother grabs you by the shirt and tells you: "Look, I'm going to offer to buy you a used bike to replace your new one. If you don't accept my offer, then I'm going straight to mom to tell her that I've already replaced your bike and complain to her that you've got nothing to complain about. Take it or leave it. What do you say? "

This formulation is odd, no?

Why bother asking your kid brother to take a used bike in exchange for his squashed new one if you're confident that mom will anyhow regard this as a stellar solution to the present squabble.

And if you were going to approach things in the manner of this big brother, wouldn't you want to be pretty damn sure that your mom will unequivocally take your side about how much a shattered new bike is worth? Who wants to be humiliated in front one's kid brother. Your little brother could just smugly turn around and gloat about what a doofus you are and do the whole nana nana boo boo thing as mom tells you you have to cough up for a new bike out of your allowance.

What function does such an oddly formulated offer serve?

"With Prejudice"

And what function is served by that phrase "with prejudice" that Rogers wrote across the top of their offer?

Isn't that phrase kind of like saying to your kid brother "And anyhow, my buddy here just heard me offer to get you a used bike and he'll tell mom that I'm the reasonable one and you're just going nuts over your stupid bike that was anyhow just a crappy imitation racer."

What if you're the kid brother and your big brother added "You know, I'm only making this very generous offer to get you a used bike because I don't want the hassle of having to deal with mom when she's coming home from a busy day of work. You know what she gets like."?

Does that phrase "with prejudice" serve a purpose other than the grandiloquent emphasis "And I mean it!!" or "I'm gonna tell on you!"?

Does it do anything more than spread a vague kind menace all over the whole page?

Does "with prejudice" have some kind of formal legal voodoo in it, or is it all just a bunch of hooey?

If you had all sorts of thrilling plans to ride your gleaming new bike like the wind, do you think you'd just accept your big brother's "with prejudice" offer of a used bike?

Or would you say: "You're not the boss of me!"

Kid Psychology and The Law

The legal prohibition on alerting the trial judge to the existence and content of settlement negotiations has some analogies with that point that parents reach when they refuse to let one child tattle on the other, preferring to encourage siblings to learn how to resolve their fights on their own, and also preferring to be left in bloody peace from the particular plague of resolving petty little rivalries.

Ordinarily, entering settlement offers into the court record is strictly forbidden, both in the general Rules of Civil Procedure, and in the Rules of Small Claims Court. It's fully recognized that trials are costly, not only for the parties, but for the state. And it's also recognized that justice at law can be crude. The court can only decide who's the winner and who's the loser. There's nothing subtle about a court judgment; there's no room for compromise, nor for taking into account all sorts of innovative ways to ensure that all parties come away with something. While parties can come to imaginative solutions through settlement agreements - through what might be called "private law-making" in which the parties craft a unique contract suited to the particular needs of each party - the court can only order what the law tells them it can order.

In light of the blunt instrument of a court judgment, in light of the costs of going to trial, and in light of limited state resources, the law does what it can to encourage people to settle their disputes out of court. One of the structures that promote the negotiated settlement of disputes is this legal rule that says that it is forbidden to let the trial judge know about settlement offers, and counter-offers.

If Party A tries to compromise and offers to settle for less than the full claim, or party B tries to avoid a costly trial by offering to pay a good part of the claim, those attempts at compromise shouldn't subsequently be used against them. It wouldn't be right if one party tries to compromise and the other party turns around and goes to trial and says: "Look here. Party B already admitted liability." Or said to the judge: "You see? Party A already accepted that her claim was too high." If settlement negotiations could be presented to the judge in that way, then who would ever offer to negotiate in good faith?

To foster good faith in negotiations, then, and to promote the timely, and well-crafted settlement of disputes, the court precludes parties from alerting the trial judge to what they have been talking about.

So strict is this rule that communications about settlement negotiations are NOT to be shared with the trial judge that it would also be illegal to go through the back door and talk about a settlement offer in the media, hoping to catch the judge's ear.

The law is clear: Settlement negotiations are strictly confidential. The only purpose for entering them into the court record is for those deliberations that arise AFTER the judge has determined liability and damages. At that juncture, the court will hear about settlement offers because the matter who has to pay costs hangs on this point:

If Party A offered to pay Party B $50 of a $100 claim and the judge, at the end of a trial, ordered Party A to pay $50 or less, then the judge could say to Party B: "You can pay Party A's legal costs. This whole trial could have been avoided, including the costs to which you put Party A, if you had just accepted Party A's offer in the first place."

The law is clear, but lawyers have adopted a practice of writing "without prejudice" on the top of their settlement offers. This phrase has virtually no meaning. It's meant to flag for the party receiving the offer that this missive is part of a settlement negotiation and therefore should not be entered into the court record in a way that prejudices the judge against the offeror.

But the law already forbids parties from entering settlement negotiations into the court record. So the phrase is redundant. It operates, I suppose, as a way of saying: "This is a settlement offer. Don't tell the judge about this." Well, duh. It's a settlement offer.

As it is meaningless to write "without prejudice" on settlement negotiations, it is even more meaningless to write "with prejudice". The phrase "with prejudice" can only mean: "I'm going to tell the judge on you about how unreasonable you've been in settlement negotiations." But that defeats the whole point of the law that shores up good faith and compromise in settlement negotiations by ensuring their confidentiality.

One can easily imagine that many parties get to the point where they think the other guy is being unreasonable and obstinate and a downright jerk. One can easily imagine that many parties want to tell the trial judge how irrational and stubborn they think their opponent is. Many parties have reached that moment when they feel like grabbing a judge by the collar as he walks past the negotiation room to say "D'you see what I have to deal with? D'you see what this guy's putting me through. He's going to put you through it too if you let him."

But because doing so would violate the very strict rules of confidentiality surrounding settlement negotiations, which are a verboten topic with the judge.

So how come I can tell you about Rogers' settlement offer?

In the circumstances of a motion for summary judgment, Party A advances an argument that there are no genuine issues for trial - that there's no point wasting the parties' and the court's time on a trial. Under these circumstances, very exceptionally, a court might allow a party to enter their settlement offer into the court record to show that the other party is being completely unreasonable, has nothing left in law to argue about, and should be finding another venue for their sense of disgruntlement.

Rogers, like the big brother who busted his little brother's new bike, appears to be endowed with a robust sense of self-righteousness. Though Rogers pitched itself as graciously stooping to make a generous offer to settle my claim, Rogers' legal team was simultaneously confident that a judge and Rogers would be of the same mind; that a judge would agree that Rogers offer to pay $5,000 into court on a $10,000 claim would render all further legal issues moot. Therefore, claiming Spock-like powers of mind-meld with the motion judge, Rogers was confident that it would not be violating the rule against entering settlement offers into the court record.

And so, Rogers entered its offer into the court record.

Once Rogers' offer is in the court record, anybody can walk off the street into Toronto Small Claims Court and pay $10.00 to have a look at it.

Or I can spare you the cost and trouble and just share with you what is now part of the public record.

Given that Rogers entered their offer of settlement into the court record and claimed that I rejected that offer, I, of course, had to set the record straight and rectify the claim that I was obstinate and obstructionist and unreasonable. I had to enter my counter-offer into the court record.

And so, now you have it, you can look at both documents that would ordinarily constitute confidential exchanges. Ordinarily, Rogers' modus operandi would be off the record, hived away from public view, private, secluded, and inaccessible to the scrutiny of inquiring minds. But Rogers is laying it out for all to see in this case.

And now that Rogers has entered these otherwise confidential negotiations into the court record, the trial judge, too, can peer in on how our negotiations are going, can make a little mental note that Rogers clearly thinks that it needs to pay my TOTAL claim; can observe that Rogers has already assumed full liability for my damages; can take in that Rogers is fully desirous of paying both compensatory damages for breach of contract (despite Rogers' Wireless Service Agreement) and fully desirous of paying punitive damages.

The trial judge can even see whether another judge thought Rogers was right that I was being unreasonable in my assertion that $5,000 is HALF my total claim; and combining it with a goodwill payment from Ted of $5309.60 doesn't make up the difference. "Let's just see," he or she might mumble to him or herself, rifling through the file, "what the motion judge for Rogers' October 26, 2006 summary judgment thought about Rogers' arguments in this nifty, well-bound, factum from Lang Michener, LLP here. Hmm. Look at that. The motion judge thought Rogers' arguments were pretty bogus."

Of course the judge can do this: Rogers entered all this stuff into the court record that the trial judge now has to plough through.

And if Rogers now worries that its "with prejudice" offer and my "with or without prejudice" counter-offer might prejudice the mind of the judge, well it's hard to see how Rogers can plead its own contempt of the Rules of Small Claims Court. Rogers explicitly and redundantly wrote "with prejudice" on their settlement offer - i.e., "I'm prepared to have the judge hold this against me"; and shortly thereafter, through a motion for summary judgment, Rogers called the judge to come and have a look at how things are progressing between Rogers and me.

Born Again Virgins

Rather than agree to my conditional counter-offer to accept $5,301 in settlement of my Small Claims Court claim of $10,000, Rogers sought a motion for summary judgment, arguing that a payment of $5,000 should suffice to make me go away - when conjoined with Ted Rogers' "goodwill payment of $5309.60. To Rogers' lengthy motion record, factum, affidavit, and authorities brief, I filed and served my own factum in response.

So, on October 26, 2006, I sat outside a courtroom at Toronto Small Claims Court and waited for the doors to open.

From that vantage, I watched Joe D'Angelo enter the building across the way where I knew he would take the elevator to the third floor to ask the clerks where the heck the court rooms were. I knew he was Joe D'Angelo because I'd looked up his photo on the Lang Michener web site. And I knew where the courtroom was without asking. I had been here before. Recently. The whole routine didn't seem quite so familiar to Joe.

When Joe returned to wait in the same cramped entrance way a few moments later, he sat at its other end. I approached Joe and introduced myself (though I'm sure he knew who I was because he fessed up, in his factum, to reading this web site avidly, on which a photo of me figures prominently on the home page. I suppose Joe was keeping his distance.)

"It's been a while since you've been in Small Claims Court eh, Joe?" I asked. "I saw you heading up to the third floor to ask where the courts are. What's it been, 16, 17 years?"

"Yeah, about," Joe replied.

Joe's a soft-spoken man, with a gentle demeanour.

Deciphering the Judge

Three hours later, Joe and I and my partner Harry Gefen had sat through three hours of Small Claims Court cases with parties dressed in anything from sweat pants and windbreakers, to Wal-Mart slacks and blouses, to their Sunday best.

One defendant was present with his cousin, who, the defendant explained, was present to give him a bit of support. They both happened to have the same name. They were cousins, they explained to the judge: "I'm Luigi Amano and he's Luigi Amano. We're cousins, see?"

Luigi Amano the cousin did what he could to present Luigi Amano the defendant's case: the offer of settlement that his cousin signed shouldn't be binding because his cousin was dizzy when he signed it, having just been in a car accident. He apologized to the judge and said "I'm sorry your honour. I don't have any training in law. I don't speak very clearly."

To this the judge responded: "Not to worry. You're way more clear than most of the lawyers that appear in front of me."

Another fellow, pleading on behalf of his mother, a defendant up against four collection agencies, argued that his mother didn't have any money to pay. "She's on a pension. She's 62. I've provided a copy of all of her bills and her monthly pension income. She has NO money at the end of each month. This case shouldn't go to trial. I'm telling you now, she can't afford to pay."

"Are you saying that it's OK for people to go out and buy things and then say they can't afford to pay for them because they have no money? Is that your argument? " asked the judge.

"I'm just saying that there's no point in going to trial because my mother can't pay what these guys are asking for. She has no money."

To this the judge responded: "So what you're arguing is that the plaintiffs are not entitled to judgment because the defendant is too poor to pay. But think about it, aren't they're entitled to judgment even if she can't pay? Think of all of those people who want their day in court against Conrad Black. Even if they win, they're not likely ever to collect a penny from him, but they're still entitled to get a judgement ordered against him, aren't they? If she can't pay, she can make that case then, after the plaintiff's get judgment. Do you know of any law that would permit me to do what you're asking me to do?" he asked almost imploring the defendant to give him something with which he could keep the four collection agencies at bay: he had the woman's monthly income and bills in front of him.

"Well this is a court of equity, isn't it? The court is supposed to make orders that are just. It's not just what those guys are doing.!"

"You know," responded the judge beseechingly, "I can agree with you that it's not just, but this is also a court of law. I need some law to make this happen."

"These collection agencies are taking a huge profit from this debt. That shouldn't be right. They should just take what they bought the debt for, 6 years ago, from the original company."

The judge didn't find in this fellow's favour. But when one of the collection agents said they were "not going to show their fangs" and reduce the interest payable on the debt from their regular 28% to 14% percent, the judge said: "Not showing your fangs is cold comfort to the defendant, isn't it?" And the judge set the interest payable on the debt at 6%.

Another case brought a defendant to the bar with her friend. They were up against an insurance company that was demanding payment for damages to another party's car.

"Your honour," interjected the friend, "if I may. I don't understand why the plaintiff is coming after my friend. Doesn't the other party's insurance company pay for the damage to his car? Why is he coming after my friend for the money?"

The judge, gently solicitous, said: "The other guy is not coming after your friend for damages. His insurance company is coming after her. You're up against a big corporation, not the guy whose car got damaged. It's the insurance company that's suing you."

The rest of the docket was crammed with such cases. Unlike Quebec, collections agencies have the right to appear in Small Claims Court; and appear they do.

And unlike Quebec, lawyers also have the right to appear in Small Claims Court; and, sometimes representing large corporate interests, they go up against unrepresented parties, shoulder to bruised shoulder.

Three hours into the afternoon, the judge called our case. "Ah," he said as the bulky file was passed to him. "We've saved the best for last."

Rogers Prefers to Do It with the Lights Out

We were in front of this judge in Small Claims Court on Rogers' motion. As such, Rogers had the opening argument.

But I interrupted the judge before we began and said: "Your honour, I've been instructed by the clerk to bring the following to your attention prior to proceedings:

"Rogers, the Defendant in this case, is being represented by a partner at Lang Michener, the head of Lang Michener's Commercial Litigation Group, a lawyer with 17 years of practice. I, on the other hand, am an unrepresented plaintiff. As I understand the exception to s. 136(1) of the Courts of Justice Act, I am entitled to record these proceedings so long as I restrict myself to using the recordings for the purposes of facilitating hand-taken notes. I'd like to confirm with the court that it is acceptable for me to record the motion proceedings."

At this juncture, Rogers' lawyer rose to his feet and said that he objected to what I was proposing: I had not brought this matter to attention until that very instant. And he objected to me recording the proceedings.

"Mr. D'Angelo," replied the judge. "This is an open court. Anybody from the Canadian public is entitled to be present in this courtroom at this very moment. I don't understand how you could object to the plaintiff's request to record the proceedings."

"The plaintiff has a web site on which she is very likely to broadcast the recording. She has shown herself prepared to use this web site in the past for reporting on this case."

"I'm not convinced by your objection," the judge responded. "We have an open court system in Canada. The plaintiff can record the proceedings."

Ted Was Here

Joe D'Angelo started making his oral arguments, claiming, as per his factum, that I had already accepted a first instalment of $5309.60 from Ted Rogers. Ted Rogers called me at my home December 17, 2005, Joe said, apologized publicly in the media, and offered to pay me for the costs related to my Small Claims Court action.

"Ah," said the judge, smiling. "Ted Rogers called? Ted Rogers was a classmate of mine."

Joe D'Angelo went on to argue that the total claim in my action ($10,000) was therefore paid off by a further $5,000 payment into court.

I started to make my arguments, as per my factum, about the fact that the cheque for $5309.60 was NOT payment in settlement of this Small Claims Court action, but was a goodwill payment, in accord with the terms of the letter that accompanied the cheque.

The judge asked me to reiterate what I was asking for on this claim.

I had assumed that the judge might be aware of my debacle with Rogers, in part because of the notoriety of my case. When Rogers' lawyer was late for our March 1, 2006 pre-trial conference, I had asked the pre-trial judge (a different judge than the trial judge or motion judge) whether he needed me to go through the facts in my case, or whether the judge could take judicial notice of them. "Your case has been spread all over the front page of the Globe and Mail for 8 days running," he responded. "How could I NOT be aware of your story?" Even if this motion judge hadn't heard of my debacle, then I assumed he would be familiar with the case because he had the court records in front of him. Joe D'Angelo had, after all, just spent over $5,000 drafting a factum, motion record, and authorties brief. Hadn't the judge read through all of that material?

In fact the motion judge appeared to be unfamiliar with the case. So while I started talking about fundamental breach of contract, he kept asking for the facts. "What were your damages?" he wanted to know. "Compensatory and punitive," I replied, trying to be helpful.

"No, what did you lose? What are you claiming for?" he asked. "I see your son's cell phone was shut off here, so what are you claiming for as damages?"

"Oh," I replied. "Loss of income. I had to drive my son back and forth to school for several days and therefore lost income."

"You mean you went through some down time? Is that what you mean? For the time you spent driving your son back and forth to school? And you're saying that time was worth $10,000? How do you figure it was worth $10,000?"

"Oh, well I've been engaged in a $66 million class action law suit for the last two years, also covering the period during which I was forced to drive my son to and from school as a result of Rogers' fundamental breach of contract; for that class action law suit, I am entitled to a 20% referral fee and that down time cost me quite a bit of what I could have additionally claimed in a referral fee."

"Oh. I see. Yes. That makes sense, that you lost income as a result of Rogers shutting off your son's cell phone."

The pleadings went back and forth a bit more between Joe and me, both of us elaborating vigorously upon our factums. And then the judge said: "Take a seat. This is going to be longer than I thought. I'm going to clear the docket and then we can set aside an hour to hear the rest of the arguments."

Hard Law v. Soft Law

As our case was temporarily adjourned, I approached Joe and said "Joe, what are your billable hours? $600/hour? $700/hour? Rogers has got to be approaching the full amount of my claim just in legal fees for today's work. Are you sure you don't want to step out in the hallway with me and see if we can settle this by Rogers just simply paying the $10,000 claim?"

Joe declined my offer.

And so, 45 minutes later, there we were again in front of the judge.

"Mr. D'Angelo," the judge asked Rogers' lawyer, "as the plaintiff said, you have 17 years of experience as a lawyer, tell me what the statement of claim is in this case."

"Let's be honest here," Joe slipped in, "the Plaintiff IS a law professor."

"Oh. What kind of law do you teach?" the judge queried.

"Legal anthropology," I replied. "I'm not sure that legal anthropology was being taught at Osgoode when you attended with Ted Rogers."

"Now, now," the judge replied with a smile. "I'm not THAT old. So, Mr. D'Angelo, reiterate for me the statement of claim."


Offending Rogers' unimpeachable honour

Joe briefly reiterated my claim and then went on to say that, in all events, I had made a counter offer to Rogers on October 12, 2006 in which I agreed to accept $5,300 from Rogers - so I was anyhow fully prepared to accept the monetary payment that Rogers was offering into court.

"But she didn't just accept your offer, did she?" asked the judge. "Aren't there conditions attached to her offer?"

"Yes your honour," Joe replied, "But they are not conditions that a court can order, and in any event, the conditions that she attached are by way of an agreed statement of facts. It would be humiliating for Rogers to agree to the statement of facts that she was requesting on her counter-offer."

"Let's be clear then," said the judge. "She didn't accept Rogers' offer unconditionally. Rogers rejected her counter-offer with its conditions."

She can, and she is

The judge turned his attention back to me.

"Haven't you been paid your full claim, Ms. Drummond?" asked the judge.

"No," I argued. "There are two causes of action that are mentioned in my pleadings. One in fundamental breach of contract. The other for breach of a duty of care. I clearly indicate in my pleadings that an action for the latter cause of action is available to me in Superior Court. If Ted Rogers sent anything by way of his "goodwill payment" of $5309.60, he sent me an initial instalment for that action."

"She can't make an argument for two causes of action on these facts, your honour," replied Joe.

"Well she not only can, she is," responded the judge.

"Her argument would be excluded by res judicata," Joe replied.

"That's an argument you would need raise when the issue comes up at trial," replied the judge. "And she's entitled to make the argument that there are two causes of action here; and that leaves room for genuine issues for trial."

Rogers Blows its Wad

"Mr. D'Angelo," the judge concluded. "You're asking me to do something that could cause me a lot of embarrassment. If I say there is no genuine issue for trial, when clearly there are many issues that are unsettled, I would be going way out of a limb only to have the plaintiff argue that there are claims that have not been resolved or addressed. I'm going to dismiss your motion."

Over $5,000 for a factum, motion record, and authorities brief.

And another $5,000 for a partner, with 17 years of practice - the head of Lang Michener's Commercial Litigation Team - to sit in Small Claims court for 4 hours (billable as a day's work) in order to argue about whether payment into court was sufficient at $5,000, as opposed to my conditional monetary counter-offer to accept $5,301.


...Rogers lost its very costly motion.

Rogers blew its motion wad on a summary judgment rather than on a quashing of Ted Rogers' summons to trial - a trial which is still on the Small Claims Court docket, currently scheduled for early February, 2007.

Anatomy of a Humiliation

On October 4, 2006, Rogers sent me an "offer to settle" my legal dispute in Small Claims Court.

On October 12, 2006, I delivered a "counter-offer" to Rogers' lawyer, Joe D'Angelo.

Rogers rejected my counter-offer and opted instead to go for a motion for summary judgment on October 26, 2006. One of the arguments that Rogers presented to the judge on this motion was that, in my counter-offer, I had anyhow agreed to accept $5,301.00 (which is partly true), only $301 off what Rogers had agreed to pay into court, and that therefore, there were no genuine issues left for trial.

"But there were conditions attached on her counter-offer, weren't there?" asked the judge.

"Yes," acknowledged Rogers' lawyer, "The plaintiff attached an agreed statement of facts. But it would have been humiliating for the President of Rogers Wireless to agree to that statement of fact."

"Well, she didn't accept your offer then, did she?" remarked the judge.

And that put an end to that line of reasoning.

But what about this claim that the Agreed Statement of Facts that I wanted the President of Rogers Wireless to sign would have "humiliated" Rogers Wireless? You don't often think of legal persons feeling "humiliated" - humiliation is more within a physical person's sensibilities. What did I say that was so provocative?

The Agreed Statement of Facts were very lean indeed: four paragraphs long. I agreed to accept half of the monetary value of my claim, and accept Rogers' offer to pay $300 in court costs, plus, as per Rogers' own offer, a little bit more, if Rogers agreed to the following description of reality:

When Ted Rogers calls something a "goodwill payment", that's what it is.

Ted Rogers has an Osgoode Law Degree. Rogers' legal team on my Small Claims Court Action has a combined 102 years of legal experience under their belts. My first paragraph just asks Rogers not to distort the law by calling Ted Rogers' phone call to me an "oral contract" and my certification of a cheque sent to me by Ted an "acceptance of offer":

1) The payment to the Plaintiff by Rogers Group of Companies of $5,309.60 by cheque no. 6100000510 on January 25, 2006 was not an Offer of Settlement for the Action but a goodwill gesture and a payment for damages outside of the scope of the Action’s claim; the certification of that cheque on February 9, 2006 by the Plaintiff was not an acceptance of a settlement offer; and the foregoing transactions do not constitute a Settlement Agreement.

There isn't really anything tricky here. $5,301.00 would have closed the dispute in Small Claims Court, and there's nothing in this paragraph that holds Rogers to paying me anything else in any other venue.

This paragraph is just a matter of getting the wording right. Nothing legal hangs on it; Just the truth.

Lost and Stolen Cell Phones

A little bit more hangs on the next paragraph:

2) Ted Rogers, President and CEO of Rogers Communications Inc (the parent corporation of Rogers Wireless Inc), has publicly – and with sound reason consistent with the law – acknowledged that the charges incurred on the Plaintiff’s cell phone between July 26-August 16, 2005, made without authorization by someone other than and unknown to the wireless account holder, were wrongfully attributed by Rogers Wireless Inc to the Plaintiff.

Ted Rogers offered me a very deep and broad and public apology for the way that his corporation had treated me. To my mind, when a human being sincerely apologizes for his or her behaviour, implicit in that apology is a recognition that they've done wrong; and also implicit is a commitment to refrain from doing the very thing which necessitated the apology again - to the person to whom one apologizes, or to anyone else similarly situated.

I've been hearing from people that Rogers has been trying to stick it to Rogers consumers unendowed with my media baggage. When I would tell them to ask Rogers why it would zero the bill of a law prof but not other ordinary consumers, they managed to get their bills miraculously zero'd.

The assistant to the President of Rogers Wireless, Lisa Brussa-Toi, even told one consumer who called in to say "How come a law prof and not me?" that Rogers had changed its policy as a result of my case.

Is that believable? How come Rogers still has the following clause on its Wireless Service Agreement if things have changed, a new wind stirred:

Lost or Stolen Equipment

19. Please immediately notify us if your device or SIM card is lost, stolen or destroyed. You will need to replace your device or SIM card and you will be responsible to pay us for all charges up to the time you notify us.

It's not only that, as everyone knows, the credit card companies call you AS SOON as there's the slightest whisper of unusual activity going down on your account, Harry Gefen's scoop unearthed the fact that Rogers has the computer technology to similarly detect atypical call patterns; and Rogers also has a fraud protocol that involves calling the consumer if there is unusual activity to ensure the consumer with the atypical call pattern is actually making the call.

If Ted Rogers' MEANT his apology, then wouldn't Rogers' contract and Rogers' practices be consistent with it? Where's the humiliation in acknowledging that Ted Rogers MEANT his apology? That Ted Rogers knows that the corporation bearing his name has the technology at its disposal to stymie suspicious atypical calls?

Where's the humiliation in acknowledging that Ted Rogers' apology was consistent with the law and with sound reason?

Isn't the opposite inference a wee bit more humiliating?

Where's the humiliation in acknowledging that Rogers is not the kind of sleazy organization that treats you one way if you're a law professor, and another if you're a store clerk?

Where's the humiliation in affirming that Rogers is not the kind of corporation that will let you out of supposed contractual obligations if you get your story into the national media but not if you flounder away on your lonesome?

Where, exactly, is the humiliation in Rogers affirming that it will deal with its consumers in good faith?

Registering a Dispute

The first clause of Rogers Wireless Service Agreement says that, in signing the contract, you, the consumer, agree to pay Rogers for undisputed charges appearing on your account by the specified date.

Well and good. Sounds reasonable.

But what if your charges are NOT "undisputed". What if you "dispute" a charge.

Although Rogers corporate head offices in Toronto sprawl out over close to the acreage covered by Vatican City, Rogers is not the pope. Both Ted and Rogers are not infallible. Even Ted Rogers has admitted that "mistakes were made."

Yet Rogers doesn't tell you on the contract HOW to bring to the corporation's attention that charges are disputed.

Surely this is an oversight. Surely Rogers is not trying to occlude from the ordinary consumer how they should let the corporation know that a mistake has been made.

The third paragraph of my proposed Agreed Statement of Facts just brings things out of the shadows:

3. The Plaintiff had fully complied with the mechanism the corporation provides for registering a dispute over charges when she disputed them with the Customer Service Department of Rogers Wireless Inc.

I was not set on this formulation. I was prepared to have Rogers modify that paragraph and correct me as to the proper mechanism for consumers to formally register their disputes with Rogers. But Rogers seemed to have a wee bit of discomfort (actually a bit more than a wee bit - Rogers felt "humiliated") in the very idea that consumers should be aware of how to let Rogers know that, hang on a sec, there seems to be a little problem here.

Surely it's not a corporate secret, the mechanism for letting Rogers know that a mistake has been made.

Is it really humiliating for Rogers to disclose to its consumers how to dispute a charge the corporation has wrongfully attributed to the consumer?


Rogers is Not the Judge, Jury, and Executioner

The final paragraph appears to reify what must be common sense for a lot of people:

Rogers shouldn't be able to wreck your credit rating and ruin your life on its own say so.

If you have a dispute with Rogers, Rogers shouldn't be able to unilaterally determine that Rogers is in the right, you're in the wrong, and tough noogies if you don't like it.

Here's the final paragraph of what I proposed as agreed statement of fact:

4. The resolution of formal consumer disputes with the corporation (i.e. those disputes which comply with the mechanism described in paragraph 3) ultimately requires judicial resolution should all other attempts to resolve the dispute prove unsuccessful; therefore the corporation was in error when it sent the disputed charges to Rogers’ Accounts Receivable Department for collection; and in error when it sent reports to the credit bureaus indicating that the Plaintiff’s account was overdue when it was, in fact, and in accordance with the law, in dispute; and in error when it charged a late penalty on charges that were formally in dispute.

And Rogers disagreed with this statement. Rogers finds this to be a humiliating admission.

What are the implications of Rogers rejection of this statement?

Rogers, in refusing to agree to this statement, is essentially saying that even if you dispute charges, even if you've laboured to resolve the dispute but to no avail, Rogers can decide as between the two of you that you really, despite your protestations, deserve the full Rogers "treatment"; If you and Rogers can't agree who's in the right in the dispute, Rogers will have the final say.

"We'll decide whether your credit rating is safe or not," Rogers is saying. "We'll decide that you deserve to have a collection agency hound you."

Why does a big corporation get to decide, unilaterally, to wreck your credit rating when there's an unresolved dispute between you? Why was I left with the onerous and months long task of clearing my credit rating after Rogers soiled it?

With a bare minimum of aspiration for one's future economic security, the prospect of taking a hit to one's credit rating can be an unsettling proposition. The potential damages of the latter can exceed the actual amount claimed as a bad debt.

Furthermore (and perhaps MOST to the point) it wouldn't be at all unusual to feel some pressure to pay off the "supposed bad debt", even if it isn't properly attributed, rather than suffer long term damage to one's credit rating.

The reasoning behind this use of the credit reporting bureaus as agents of debt enforcement kind of works the way that other legal orders work - such as the mafia. Even if the so called debt could not be collected in a court of law, you might be inclined to consider your options in a completely different light once you've had a little visit from one of Tony Soprano's buddies.

When Rogers reserves to itself the right to send a negative (though disputed) report to the credit reporting bureau - refuses to acknowledge that unresolved disputes require third party, judicial resolution - this effectively (through the device of threatened damage to credit ratings) amounts to a non-judicial seizure of assets.

I can imagine scenarios where Rogers is simply and unequivocally in the wrong - flat out in the wrong - and yet Rogers reserves to itself the right to put consumers on the defensive, to leave them scrambling to correct credit reporting errors, to fend off collection agencies; to force consumers to take the initiative and spend hours on hold with a dizzying and stymieing array of customer service reps from a range of Rogers departments, compelling consumers to ensure that they have exhausted every possible way of communicating that an error has been made; to require them to pitch their story to the media as a way to get the corporation to back off when nothing else seems to work.

Rogers finds it humiliating to acknowledge that, in the event of an unresolved dispute, Rogers needs to turn to a judge, to a court of law, to present their case?

Rogers finds it humiliating to acknowledge that it does not have the power, by law, to unilaterally decide disputes in its favour?

A Costly Disagreement over the Facts

What an intriguing admission that Rogers would rather fight me in Small Claims Court, at a cost of $10,000 a day in legal fees, rather than pay the difference between a $5,000 offer and a $5,301 counter-offer attached to an ostensibly uncontroversial statement of facts.

A further conjecture regarding what would stay the hand of the President of Rogers Wireless Inc from signing my Agreed Statement of Facts is not the humiliation of agreeing that Rogers should not simultaneously be party, judge and executioner and that disputes ultimately need to go to a third party for resolution. It is the bottom line implication for so signing: the marginal dividends that might propsectively be lost if the President of Rogers Wireless were to agree that judges are required to resolved otherwise unresolved disputes between Rogers and its consumers.

That small phrase "judicial resolution" seems to stick in Rogers maw for a whole other set of reasons than those (like humiliation) that we associate with physical persons. The hesitation that stays the hand of the President of Rogers Wireless comes not from some sense of moral or personal indignation; it comes from the being of Rogers: The Legal Person.