Closing Arguments

1. Your honour, I am seeking relief in this case on two grounds:

2. I will address each of these two grounds for relief in order. I will start with fundamental breach of contract.

3. My argument for fundamental breach of contract has 3 components.

 

 

4. I will start by laying out the facts that have been revealed in this trial as they relate to fundamental breach.

 

Facts:

 

5. My argument for relief on the grounds of fundamental breach of contract arises out of the fact that Rogers shut my son’s cell phone off (phone number: 416-301-5780) on September 2, 2005.

6. My son’s cell phone has never been lost. It has never been stolen. It has never been used for a fraudulent purpose. It has never been used for an unlawful purpose. It has never been used for an improper purpose.

7. In fact, as Paul Harris, Manager of Loss Prevention/fraud testified, my cell phone (416-301-6203) has never been used for a fraudulent purpose. It has never been used for an illegal purpose. It has never been used for an improper purpose.

8. At exhibit (  ) page (  ), in the remarks that Rogers entered into my account file, the note indicates that Rogers shut off my son’s cell phone because I was refusing to make a promise to pay the “total” charges on my account.

9. On September 2, 2005, my account was in good standing. This is confirmed at Exhibit (  ) which are the invoices that relate to my account between the dates of X  and Y.

10. In this exhibit, the second to last invoice indicates that my July invoice was paid in full and on time on August 9, 2005.

11. Further, in this exhibit, the last invoice indicates that my August invoice was due on September 10, 2005.

12. On the day that Rogers shut off my son’s cell phone, my account was in good standing and it was not due for another 8 days.

Fundamental Breach of Contract.

13. These facts lead me to my next argument about fundamental breach of contract.

 

Argument

14. A fundamental breach of a contract is a breach that goes to the very essence of the contract. It is a breach so fundamental that it permits the aggrieved party (myself in this case) to terminate performance of the contract, in addition to entitling that party to sue for damages.  

15. A fundamental breach can be contrasted with a breach of those elements of the contract that are incidental to the very thing bargained for.

 

16. The essence of the contract between wireless consumers and wireless providers is the regular payment by the consumer of undisputed wireless charges in exchange for the provision of wireless services.

17. Without this quid pro quo at the heart of the Wireless Service Agreement, there is no raison d’être for the other contractual Terms on Rogers’ Wireless Service Agreement.

18. When Rogers unilaterally, and without cause or justification in law or on the terms of the contract that binds us, suspended wireless services to my son’s cell phone on September 2, 2005, 8 days before my invoice was due, Rogers fundamentally breached the contract between us.

Arguments

19. The entry on page XX of Exhibit (  ) indicates that Rogers fundamentally breached out contract because I was not making a promise to pay charges that were not due for 8 days.

20. I submit that there is no such thing in law as a duty to make a promise to pay an invoice 8 days before it is due.

21. There is not a word in Rogers’ contract that says that consumers have to promise to pay their invoices before they become due, failing which Rogers will suspend payment.

22. In fact, the contract that I signed with Rogers Wireless says clearly, at the 4th term of the contract, that Rogers will bill me monthly and that I agree to pay Rogers for “undisputed” charges appearing on my account by the specified due date.

23. This term can be found at Exhibit (  ) which is a copy of the Wireless Service Agreement that binds Rogers and me contractually.

24. That term goes on to say that I contractually agree to use a method payment approved by Rogers.

25. Rogers’ invoice stipulates the means by which the consumer can pay their bill. These methods are found listed at Exhibit (  ). Each invoice filed in that exhibit indicates that the consumer can pay their bill at a local Roger’ video store.

26. On September 3, 2005 I sent a letter to Rogers Wireless, which is at Exhibit (  ), in which I formally disputed charges incurred by an unauthorized third party between the dates of July 22 – August 16, 2005.

27. On September 7, 2005, I went to the Rogers video outlet on the ground floor of Rogers Corporate Head Office (333 Bloor Street) and I paid the total “undisputed” charges on my account, including GST and PST.

Acquiescence

23. Rogers has acquiesced to the correctness of my use of term 4 of the contract when I disputed some charges and paid off my undisputed charges in full and on time.

28. Rogers has never raised an argument that my account was not in good standing.

29. My account with Rogers continues to be paid off on a monthly basis, in full and on time, to this day.

30. Rogers never sent me a dunning letter indicating that I owed those disputed charges.

31. Rogers never sent my account to a collection agency.

33. Rogers never sued me over those disputed charges.

34. Rogers never initiated arbitration proceedings to resolve the dispute over those charges.

35. Rogers continues to provide wireless services to my cell phone (with the number 416-301-6203) under the terms of the agreement between us that I am only liable for undisputed charges on my account.

Explicit acknowledgement

 

36. Rogers has further explicitly acknowledged the correctness of my use of term 4 of the contract.

37. As indicated in my testimony, on December 17, 2005, Ted Rogers, the CEO of Rogers, personally intervened and left a message on my home phone indicating that my bill for the disputed charges would be zero’d along with all late penalties on those disputed charges.

38. As my testimony on February 20, 2005 indicated, this zero’ing of my bill was reflected in my January, 2006 invoice from Rogers Wireless.

Summary

 

39. All of this evidence points to Rogers’ full acquiescence to my claim that on September 2, 2005, I only owed Rogers “undisputed” charges and the charges that I formally disputed were properly and correctly disputed.

 

Acquiescence to the cessation of obligations flowing from Rogers Fundamental Breach

 

40. Rogers not only acquiesced to the correctness of my use of term 4 with respect to unauthorized charges on MY cell phone, Rogers acquiesced to my use of term 4 with respect my son’s cell phone on the grounds of fundamental breach.

41. After my September, 2005 invoice, which is at Exhibit (  ), I never paid a further penny for wireless services on my son’s cell phone.

42. Without hesitation or objection, Rogers permitted me to terminate all of my obligations under the contract when I stopped paying for monthly wireless charges on my son’s cell phone after the September, 2005 invoice.

43. I did not receive a single invoice charging me for charges made to my son’s cell phone after this date.

44. Rogers has an early cancellation fee (at Term 29) on the contract that says I owe a late penalty of $200 if I cancel my three year contract early. I stopped paying Rogers for the contract on my son’s cell phone after one year and Rogers acquiesced to this without hesitation or objection.

45. As counsel for Rogers underlined on Tuesday, Rogers has never sent me a dunning letter asking me to pay for charges on my son’s cell phone or for an early cancellation fee.

46. Rogers has never taken me to court or to arbitration because I stopped paying for my son’s cell phone charges in September, 2005.

47. Rogers has never sent my account to a collection agency to collect an amount owing for my son’s cell phone after September, 2005.

Explicit contradiction between Term 4 and Term 18 of Rogers WSA

 

48. Term 18 of Rogers’ contract (Exhibit (  )) refers to lost and stolen equipment. That term says that if my phone is lost or stolen, I will be responsible to pay Rogers for all charges up to the time that I notify Rogers that my phone is lost or stolen.

49. On plain English, there is an explicit contradiction between term 4 of the contract that says I owe “undisputed” charges and term 18 of the contract, which says I owe “total” charges.

50. Rogers has fully acquiesced and acknowledged the correctness of interpreting its contract such that an ambiguity between Term 4 and Term 18 is resolved in favour of the primacy of term 4 over term 18.

Standard Form Contracts.

51. Beyond Rogers’ capitulation to this interpretation of their contract, Rogers’ contract stipulates in its preamble that I cannot change the agreement. Rogers is the sole party that has the right to modify the contract.

52. Rogers Wireless Service Agreement (WSA) is the very prototype of the “take it or leave it” consumer contract in which the classic model of consensus ad idem is lacking, with terms simply drafted by one party, without any effective involvement of the other party.

53. Even if Rogers had not capitulated to the correctness of term 4’s primacy over term 18, the contra proferentem rule of contract interpretation indicates that where a provision's meaning is ambiguous, it should be read against the party who wrote it. That is, the preferred interpretation will be the one that helps the party who drafted it the least.

54. The reasoning behind this rule is to encourage the drafter of a contract to be as clear and explicit as possible and to take into account as many foreseeable situations as he can.

55. Rogers capitulation to the primacy of term 1 over term 18 is supported by this rule of interpretation.

Can Rogers’ Fundamental Breach be justified under Term 28 of the WSA?

56. Term 28 of Rogers contract deals with Rogers’ contractual rights to suspend or terminate services.

57. In particular, that term indicates that Rogers can suspend or cancel any or all of my services without notifying me if:

58. Let me go through each of these sub-sections to term 28 in turn.

First Sub-section: Rogers may suspend service if the consumer does not pay an amount the consumer owes to Rogers when due.

59. On September 2, 2005, my invoice was not due for another 8 days. I did not owe Rogers any amount of money until September 10, 2005.

60. By term 4 of our contract, I owed Rogers the undisputed charges on my account; these charges were due on September 10, 2005. I paid these undisputed charges off in full and on time on September 7, 2005.

61. There was no reason for Rogers suspend service to either of my lines under my account under the first provision of Term 28.

Second Provision: Rogers may suspend one of the consumers’ services if Rogers suspects one of his or her line(s) is the subject of fraud or unlawful or improper use

62. Paul Harris, Rogers Manager of Fraud/Loss Prevention testified yesterday that there has never been any fraudulent activity on any of the phones under my account.

63. Mr. Harris testified that unauthorized third party usage of a stolen or lost cell phone IS NOT considered FRAUD by Rogers.

64. Mr. Harris was testifying about the meaning of the content of Exhibit 1. Exhibit 1. describes Rogers’ customer service protocols for dealing with lost or stolen phones.

65. I asked Mr. Harris to explain the phrase “non fraudulent usage” on page XX of that exhibit in the phrase: “The customer is resonsible for non fraudulent usage incurred prior to reporting their phone was stolen.”

66. Mr. Harris said that non fraudulent usage is all usage that accrues on the subscriber’s cell phone.

67. Mr. Harris was clear that unauthorized usage by a third party on a subscriber’s cell phone is NON FRAUDULENT usage.

68. We heard Mr. Gefen testify yesterday that the police told us that they were stymied in terms of doing anything to pursue further investigations relating to unauthorized third party use of my cell phone.

69. The criminal code considers the theft of my cell phone as a crime.

70. However, The fraud provisions in the criminal code do not speak to unauthorized third party wireless usage on a stolen cell phone.

71. There has never been any fraudulent usage of either of the cell phones that I have under my Rogers wireless account:

 

 

72. Rogers has never alleged or adduced any evidence that either of the cell phones on my account was used unlawfully.

73. Rogers has never alleged or adduced any evidence that either of the cell phones on my account was used improperly.

74. And in fact neither of my cell phones has ever been used for an unlawful or improper use.

75. There was no reason for Rogers suspend service to either of my lines under my account under the second provision of Term 28.

Third provision: Rogers may suspend one of the consumers’ services the consumer fraudulently or improperly seek to avoid payment to Rogers.

76. I never sought to avoid making the payment that I owed Rogers under the terms of the contract.

77. Term 4 indicates that I was contractually bound to pay the “undisputed charges”, which I did in full and on time, on September 7, 2005, three days before my invoice was due on September 10, 2005.

78. Compliance with the Terms of the contract that relate to my obligations to pay the undisputed charges by the due date cannot be construed as fraudulent.

79. Similarly, compliance with the terms of Rogers contract cannot be construed as improper.

80. I never sought to avoid payment to Rogers under the terms of our contract, not fraudulently, not improperly, and indeed, not in any way whatsoever.

81. I have always paid the full amounts that I owe Rogers on time; and I continue to do so to this very day.

82. There was no reason for Rogers suspend service to either of my lines under my account under the third provision of Term 28.

Summary

83. There was never any reason in law, or under the terms of the wireless service agreement that binds Rogers and me, for Rogers to suspend service to my son’s cell phone.

84. In conclusion, there is no justification either in law or on the terms of the contract that supports the actions of Rogers when it shut off my son’s cell phone because I was not making a promise to pay charges on an account that was not yet due.

85. It is, furthermore, an obscene proposition that consumers are required to not only pay their invoices when they come due, but that they are also required to promise Rogers that they will pay upcoming bills.

86. It is an obscene proposition for Rogers to suggest that the corporation can unilaterally suspend wireless services if consumers don’t offer up this promise to pay on debts that are not due.

87. We have heard Paul Harris testify that this is Rogers’ standard position with respect to not just my account, but to all Rogers accounts.

88. The straightforward implication of this obscene proposition is that Rogers reserves for itself the right to demand that all consumers – at every moment of the contract, whether or not their invoice is due or has just been paid off in full and on time – promise to pay upcoming bills or services will be shut off.

Relation of Fundamental Breach to Exculpatory Clauses

89. Term 25 of Rogers’ contract (Exhibit (  )) says that Rogers will not be liable to the consumer or anyone else… (read out the terms from contract).

90. This term purports to limit the liability of the corporation in the broadest conceivable way, including damages that flow from contractual breach, and breach of contractual obligations of good faith, two of the causes of action in this claim.

Argument

 

91. Exculpatory clauses such as those in Rogers’ consumer contract lose their enforceability in the context of a fundamental breach of contract.

92. This is particularly so when the contract is a consumer contract in which one party is not free to modify any of the Terms of the contract.

93. The doctrine of fundamental breach stipulates that where a breach of contract constitutes a radical or fundamental departure from the obligations set out in the contract, exculpatory clauses that would otherwise have insulated the party in breach from liability do not have effect. 

94. A breach that goes to the root of the contract disentitles the party in breach from relying on the exempting clause; if it were otherwise, exculpatory clauses would reduce the contract to a mere declaration of intent.

 

95. This principle is apposite in the context of Rogers’ Wireless Service Agreement where the very contract itself would be rendered meaningless if Rogers reserved for itself the right to unilaterally, and without justification or qualification, suspend wireless services, while claiming immunity from breach of contract.

96. To paraphrase Justice Laskin, Rogers’ exculpatory clauses cannot completely negate the provision of wireless services which the Wireless Services Agreement, of its essence, contemplates.

97. As Professor John McCamus articulates, Canadian courts have adopted the principle that “an exculpatory clause will not be applied or interpreted in such fashion as to render nugatory or illusory the obligations of one party.”

 

Relation of Fundamental Breach to Standard Form Consumer Contracts

 

98. The doctrine of fundamental breach also needs to be read in the context of the type of contract that is in issue.

99. The clearest case in contract law where the issues of fairness, reasonableness and unconscionability arise is in the context of standard form consumer contracts.

100. In the opening terms of Rogers’ WSA, Rogers stipulates that the consumer agrees that the contract cannot be changed by the consumer.

101. This term is exemplary of the kinds of clauses that characterize the standard form consumer contract.

102. Rogers’ Wireless Service Agreement is the very prototype of the “take it or leave it” consumer contract in which the classic model of consensus ad idem is lacking, with terms simply drafted by one party, without any effective involvement of the other party.

103. Further consistent with the classic standard form consumer contract, Rogers’ Wireless Service Agreement contains lengthy boilerplate terms in small print and drafted in legalese.

Absence on Rogers’ Part of Any Expectation of Consumer Understanding of the Contract

 

104. Further consistent with standard form consumer contract, Rogers WSA has clauses that are unenforceable by virtue of statutory law, or by virtue of the common law.

105. For example, term 32 of Rogers’ contract stipulates that consumers who sign the contract are waive all rights to pursue or defend a legal dispute in a court of law; and waive all rights to pursue Rogers in a class action law suit.

 

Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (a) this agreement; (b) the services or equipment provided to you by us; (c) oral or written statements, or advertisements or promotions relating to this agreement or to the services or equipment; or (d) the relationships that result from this agreement (collectively the “Claim”) will be determined by arbitration to the exclusion of the courts. You agree to waive any right you may have to commence or participate in any class action against us related to any Claim and, where applicable, you also agree to opt out of any class proceeding against us.…Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the province in which you reside that are in effect on the date of the notice.

106. The 2002 Ontario Consumer Protection Act 2002, S.O. 2002, Chapter 30 which came into force on July 30, 2005, has rendered arbitration clauses on consumer contracts unenforceable by virtue of sections 8  of the Act.

107. The 2002 OCPA has also rendered clauses on consumer contracts that purport to prevent the consumer from commencing or becoming a member of a class action unenforceable.

 

111. The mandatory arbitration clause of Rogers’ consumer contract is unenforceable, and yet Rogers has distributed contracts with this unenforceable clause upon it to thousands of Ontario consumers right up until February 1, 2007.

Rogers fails to respect its own contractual terms

112. The very fact that we are presenting our arguments in front of a small claims court judge underlines that Rogers knows full well that that clause of their contract is unenforceable on its own terms.

113. On the terms of the contract I signed, neither of us has a legal right to be resolving this dispute in court.

114. Rogers has adopted a rule of contract interpretation with respect to its WSA such that the terms of its contract are not enforceable on their face.

115. This capitulation clearly reflects that Rogers agrees with the expert opinion that Joe D’Angelo solicited from me when I was on the witness stand on Tuesday.

116. Mr. D’Angelo asked me to speak as a law professor and testify as to whether I thought that I was bound to the contract in virtue of the fact that I signed it. I replied that in my expert opinion, as a law professor, standard form consumer contracts are not enforceable on their own terms but are only so to the extent that they are consistent with statutory law and jurisprudence.

Return to exculpatory clauses

117. This brings me right back to Rogers’ exculpatory clauses on the contract that purports to bind us.

118. The Ontario Consumer Protection Act is a statutory law that renders clauses on Roger’s contract unenforceable.

119. Similarly, the doctrine of fundamental breach of contract is a well recognized principle of the common law that renders the exculpatory clauses on Rogers’ contract unenforceable.

Overall Summary of argument relating to fundamental breach

120. I have argued that Rogers’ unilateral suspension of services to my son’s cell phone on September 2, 2005, before my invoice was due, was without cause or justification.

121. I have argued that Rogers’ unilateral suspension of services to my son’s cell phone amounted to fundamental breach of contract in that the very essence of the contract is the exchange of monthly payments for wireless services.

122. I have argued that fundamental breach of contract is a common law doctrine that is classically applicable to standard form consumer contracts like the one that binds Rogers and me.

123. I have argued that when a party fundamentally breaches a contract, that party is not able to rely upon exculpatory clauses that they drafted to avoid paying damages that arise from that breach.

124. Rogers is liable to me for compensatory damages that arise from its fundamental breach of our contract.

Breach of a contractual obligation of good faith.

125. Having dealt with my argument relating to fundamental breach of contract, I will make my arguments relating to breach of a contractual obligation of good faith.

126. My account with Rogers Wireless has always been in good standing. My account has always been paid in full and on time. On September 7, 2005, I followed Rogers’ contract to a “T” and paid off my undisputed charges in full and three days in advance of its due date.

127. With respect to my contractual obligations to Rogers, I have always behaved with the utmost good faith.

128. Rogers, on the other hand, has behaved with demonstrable bad faith.

129. As Rogers has acknowledged through acquiescence and through explicit statements from Rogers CEO, I followed Rogers’ contract to a “T” on September 7, by registering a formal dispute with Rogers regarding charges that had been wrongfully attributed to me.

130. As Rogers implicitly and explicitly acknowledged, I followed Rogers’ contract to a “T” when I paid off my undisputed charges in full and on time.

131. Rogers suspended cell phone services to an irreproachable consumer without cause.

132. Although my account was in perfect good standing on September 14, 2005, Rogers sent a negative remark to the credit bureaus indicating that my account was overdue. It was in fact properly “in dispute”.

132. My credit worthiness was thereby reduced by $14,000.

133. I had to spend hours and hours on the phone and filling out detailed forms correcting the misinformation on my credit report.

134. As I testified, and as is in evidence, between August 27, 2005 until I insisted that Rogers adhere to its contract, Rogers insisted that I owed the total charges.

135. The material at Exhibit 6 provides documentation of the things I was told would ensue if I did not pay Rogers over $14,000 by September 10, 2005:

* I was told by Rogers that all of my services under the contract would come to an on September 14, 2005 if I did not pay Rogers over $14,000 by September 10, 2005.

* I was told that I would have to pay an early cancellation fee of $200 for each phone ($400 in total) if I did not pay Rogers over $14,000 by September 10, 2005.

* I was sent invoices in October, November, and December that indicated that I owed Rogers the amount that I properly disputed.

* On my October, November, and December invoices, I was charged a late penalty on the disputed charges totaling over $230 per month.

* Each month, I had to disaggregate the charges and dispute them all over again, by letter.

136. Between August 27, 2005 and when I filed my claim in SMCC on September 19, 2005, I devoted hours upon hours to disputing with Rogers that I owed over $14,000 on my account – a dispute that Rogers has conceded was well founded.

137. As indicated by Paul Harris when he was testifying about Rogers “decoded remarks” (Exhibit 4), Rogers sent my account for collection treatment, even though my account was in good standing.

138. I was an exemplary consumer, in full compliance with the contract between Rogers and me. Rogers treated me like I was bad debt.

139. Yesterday, I drew Paul Harris’s attention to an entry on page XX of Exhibit (  ) (which are the defendant’s decoded remarks). This is the entry that indicates that Rogers shut off my son’s cell phone on September 2, 2005 because I was not making a promise to pay Rogers for unauthorized third party use of my cell phone.

140. I asked Paul Harris if it was standard practice for Rogers to suspend services if consumers were not making a promise to pay on an upcoming invoice. He indicated that this was standard practice at Rogers.

141. What happened to me on September 2, 2005 was not an isolated incident. My case does not represent an isolated, mishandled file that ran amok. Paul Harris, who is Rogers manager of loss prevention/fraud testified that what happened in my case represents a deliberate corporate strategy.

142. When Rogers fundamentally breached its contract with me and breached its contractual obligation of good faith Rogers was manifesting an instantiation of a routine pattern of conduct on the part of the corporation.

143. The most reprehensible, to my mind, manifestation of bad faith on Rogers part was shutting off a child’s cell phone days before he took the very daunting Toronto subway for the first time in his because a consumer in complete good faith wasn’t making a “promise to pay” on a debt that she never owed.

144. These are all egregious and high-handed ways to treat a consumer who whose conduct towards the corporation has been irreproachable on the terms of Rogers’ contract.

Damages

 

145. There are two heads of damages flowing out of the causes of action in this case: compensatory damages and punitive damages.

146. Flowing out of Rogers’ fundamental breach of contract, I suffered the damage of having to purchase my son a Bell Mobility phone in order to mitigate my losses. This cell phone cost $234.60.

 

147. I spent hour upon hour forced into disputing charges with Rogers between August 27, 2005 and September 29, 2005. My time is worth something.

148. Because Rogers fundamentally breached its contract, I had to spend my son’s first week and half of school driving him back and forth from school. My time is worth something.

149. In my testimony I have argued that my time is worth at least $350 an hour and that this loss of time is the equivalent to a loss of income flowing from the fundamental breach.

150. Beyond these damages, I believe that Rogers has behaved in utter bad faith in subjecting an honest, law-abiding, and good faith consumer to the kind of treatment that one expects would be reserved for the most derelict and delinquent of subscribers.

151. The seminal Canadian case on punitive damages, Whiten v. Pilot Insurance Company (2000) 209 DLR (4th) 257 (hereinafter Whiten), lays out the circumstances under which punitive damages are warranted.

152. The Whiten case stipulates that the actionable wrong for a cause of action in punitive damages does not have to derive from tort, but can arise in a case of breach of contract. Whiten also stipulates that the actionable wrong can be independent of the breach of contract. It can, as it does in this case, arise from a breach of a contractual obligation to deal with a contracting party in good faith.

 

153. Amongst other criteria established in Whiten, punitive damages are warranted when the behavior of the defendant is designed to force vulnerable parties to make an unfair settlement; when the defendant’s conduct was planned and deliberate; when the Defendant attempted to cover up material facts; when the defendant was cavalier with or hostile towards an obligation to deal with the plaintiff in good faith; when a pattern of conduct can be established; when the actionable wrong is a breach of a contractual duty of good faith; when the defendant’s conduct is high-handed, arbitrary, or highly reprehensible; when the defendant stands poised to profit by its high-handed behavior; when other fines or penalties that the defendant might face are insufficient to deter high-handed behavior; when misconduct would otherwise go unpunished; and when other penalties are inadequate to achieve deterrence.

153. Rogers’ conduct towards me meets the threshold required by Whiten for punitive damages.

 

154. The Whiten case also indicates that in assessing the merit in a claim for punitive damages, the court should assess whether “…the case represents a deliberate corporate strategy as opposed to an isolated, mishandled file that ran amok”.

155. From the testimony of the witnesses (who with the exception of myself and Harry Gefen were all Rogers’ employees) it is evident that my case is far from an isolated incident.

156. Rogers has already acknowledged that their treatment of me was wrong. But the defendant persists in refusing to compensate me for my damages that flow from that improper conduct.

157. Jan Innes, in her testimony, indicated that Rogers acknowledged that the corporations treatment of me was wrong and worthy of an apology.

158. She indicated that Rogers was apologizing because it didn’t follow its normal procedure with me, and that this was wrong.

159. Rogers’ normal procedure, she indicated, was to pick up, via an automated computer program, on atypical call patterns and call the consumer to verify whether he or she was making the atypical calls.

160. Rogers’ problematic behavior began when it chose not to follow its “normal procedure” of alerting me to an extraordinary call pattern and shutting outgoing wireless services off in the absence of contact with me.

161. Ted Rogers, the CEO of Rogers apologized to me for how his corporation had treated me right up until December 17, 2005.

162. As I testified, Ted Rogers gave me $5,306. He thought that the purchase of my goodwill after how his corporation had treated should have this pecuniary value, in addition to the non-pecuniary value of an apology. However he still refused to compensate me for my damages that flowed the wrong he acknowledged he his corporation had done.

163. Paul Harris, Rogers’ Manager of Loss Prevention/fraud, testified that the way that Rogers treated me was pivotal to a fundamental change in policy with respect to lost or stolen cell phones. That policy changed in December of 2005.

164. Paul Harris said that Rogers realized that it had been wrong in the way that it treated me.

165. Paul Harris said that the contract has now changed as a result of the regrettable way that Rogers treated me.

166. Despite the abundance evidence that Rogers knows that it behaved badly in the way that it treated me, Rogers has persistently refused to compensate me for my damages that flow from the corporation’s fundamental breach and breach of a contractual obligation of good faith.

167. I am asking for the court to order Rogers to do so today.