Part I: The Issue in this Motion
1. The claim in this Action is for damages totalling $10,000 exclusive of costs.
2. At paragraph 1 of its factum on this motion, and in the Defendant’s October 4, 2006 “With Prejudice” offer of settlement (Exhibit A), the Defendant has expressed an unequivocal intention to pay the FULL quantum of damages arising from the claim, i.e., $10,000, exclusive of costs.
3. What is in dispute in this motion is whether the defendant, by making payment into court of $5,000 on a claim for $10,000, has satisfied the claim.
4. The Defendant claims that a cheque from Rogers Communications Group (“cheque #6100000510”), sent to me on January 25, 2006 for a sum of $5,309.60, was a payment in settlement of the claim in this Action and that, by paying another $5,000 into court, the Defendant has brought the total paid to $10,309.60, exhausting both damage claims in this action, and even paying an extra $309.60 for court costs, inexplicably going over the cost limits of Small Claims Court by the anomalous figure of $9.60.
5. I submit that cheque #6100000510 was NOT a payment in settlement of this Small Claims Court action but was issued independently of this Action; it was partial payment for an undertaking by Edward S. Rogers (a.k.a. Ted Rogers) to reimburse me and Harry Gefen for the hundreds of hours we had spent in dispute with Rogers Wireless between the filing of this action on September 19, 2005 and a telephone conversation between Harry Gefen and Ted Rogers on December 17, 2005. It was also intended to pay for Harry’s Gefen’s attendance fee at a conference which cost him $210.60 as well as for the time he expended at that conference.
6. I further submit that the $5,000 that the Defendant proposes to pay into court on this motion is therefore partial payment of the total claim; and such partial payment leaves open the justiciable question of whether or not the full $10,000 of damages claimed is or is not warranted.
Part II – resolving this issue by summary judgement
7. Rule 1.03(1) of the Rules of Small Claims Court indicates that
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every proceeding on its merits in accordance with section 25 of the Courts of Justice Act.
8. Given the Defendant’s unequivocal intention to pay the TOTAL damages claim, I submit that the most expeditious and least expensive determination of this proceeding is to resolve the only remaining justiciable issue of quantum by means of this motion for summary judgement.
9. I accept the Defendant’s argument that this claim can be resolved by way of summary judgment. Rule 20.04(3) of the Rules of Civil Procedure address the means by which the issue of quantum may be disposed of by way of summary judgment:
Rule 20.04(3): Where the court is satisfied that the only genuine issue is the amount to which the moving party is entitled, the court may order a trial of that issue or grant judgment with a reference to determine the amount.
10. The issue of quantum is resolved by a determination in fact and in law of whether cheque #6100000510 was paid in settlement of this Action or was paid for damages beyond the scope of this Action.
Part III: The Facts
11. The Defendant’s affidavit to this motion of Jan Innes, Vice President, Communications of Rogers Communications Inc, is significantly in error.
12. Jan Innes states that Ted Rogers, director and vice Chairman of Rogers Wireless Inc contacted me on December 17, 2006 via telephone and agreed with me in that conversation to cover costs associated with my debacle with Rogers and agreed to have a meeting with me. Ted Rogers had a telephone conversation on December 17, 2006 with someone in my home; but in fact I was not a party to that conversation, and nor was Jan Innes.
On December 17, 2006, Ted Rogers left a message on my automated home phone answering system apologizing for the damages caused by Rogers Wireless, a corporation he directs, which wrongfully attributed hundreds of cell phone call billings to my wireless account (Exhibit B). In that phone message, Ted Rogers offered to pay for the costs incurred by Harry Gefen in attending a conference as well as other costs. No mention is made in that phone message of court costs or of costs relating to this Action.
13. The registration fees for the conference that Harry Gefen attended were $195.00 plus GST, or $210.60. (Exhibit C).
14. The telephone conversation to which Jan Innes alludes in her affidavit took place on December 17, 2005 between my partner, Harry Gefen, and Ted Rogers.
Harry Gefen’s affidavit
15. In that telephone conversation between Harry Gefen and Ted Rogers, Ted Rogers offered to pay for the damages that had ensued as a result of my then-four-month struggle to get Rogers to relent from charging me over $14,000 on my wireless account. Harry Gefen explicitly told Mr. Rogers that between the two of us, Mr. Gefen and I had spent hundreds and hundreds of hours dealing with Rogers, the police, and the credit reporting bureaus, and investigating the law and the practices of Rogers Wireless in our attempt to undo the damage arising from the falsely attributed charges. In that telephone conversation, Mr. Rogers said that if Mr. Gefen and I submitted a claim to him for those latter damages, he would immediately issue a cheque to cover those damages.
16. On December 22, 2005, Harry Gefen and I sent a letter dated December 18, 2006 (Exhibit D) to Ted Rogers in which I outlined the monetary damage that had been done to my sabbatical year of research up until Mr. Rogers’ December 17, 2005 conversation with Harry Gefen. I explicitly referred Mr. Rogers to those paragraphs in my amended claim (paragraphs filed on or about October 12, 2005) (Exhibit E) in which I distinguish the breach of contract that is the cause of action in this Action from an actionable breach of a duty of care; and I explicitly flag at those paragraphs that I am entitled to seek relief for those damages in Ontario Superior Court given that they significantly exceeded the monetary jurisdiction of Small Claims Court.
17. The President of Rogers Wireless Inc, Robert Bruce, mailed me a letter on December 21, 2005, in which he inaccurately represented the December 17, 2005 conversation that had taken place between Ted Rogers and Harry Gefen (Exhibit F). In that letter Mr. Bruce attempted to assert, by way of a confirmation of “the agreement to resolve the issues relating to [Susan Drummond’s] account”, that the Defendant will reimburse me for my “out-of-pocket expenses”.
18. We responded in writing (Exhibit G) to Mr. Bruce’s inaccurate representation as soon as we returned from a research trip abroad over the Christmas holidays. Given that the December 17, 2005 conversation, which Mr. Bruce characterized as a so-called “agreement to resolve the issues relating to [Susan Drummond’s] account,” had taken place between Ted Rogers and Harry Gefen, Harry Gefen responded with a written statement of correction to Mr. Bruce’s inaccurate representation of that conversation. (Exhibit G). In a January 16, 2006 letter, Harry Gefen clarified in the following manner the conversation to which only he and Mr. Rogers had been privy:
“… Also, be advised, your letter to my partner, Susan Drummond, did not fully reflect the understanding I believe Mr. Rogers and I had come to by the end of our December 17th conversation. Specifically, in addition to reimbursing our “out-of-pocket” expenses, Mr. Rogers also asked that we provide him with an accounting of our time-related costs, which total in the hundreds of hours.”
19. The only other correspondence on the matter of the cheque for $5,309.60 and what it was intended to address is a letter from Ted Rogers dated January 25, 2006 (Exhibit H) in which no mention is made of this Small Claims Court Action. Nor is any mention made of a payment of court costs. In that letter, Mr. Rogers calls the sum on cheque #6100000510 a reimbursement of $309.60 for “out-of-pocket” expenses and a “goodwill payment” of $5,000.
20. In light of the facts laid out above, I submit that to the extent that the “goodwill payment” constituted by cheque #6100000510 was payment for damages, it was earmarked for the costs associated with Harry Gefen attending a conference and for the substantial damages to my sabbatical research and to Harry Gefen’s income resulting from the hundreds of hours spent struggling to rectify Rogers Wireless Inc’s billing error up until the phone conversation between Harry Gefen and Ted Rogers on December 17, 2005.
21. Further, the very fact that the Defendant now claims that another $5,000 might be needed to fully settle the claim in this Action is indicative that the Defendant is aware that the transaction relating to the cheque #6100000510 WAS NOT a payment that settled or intended to settle the legal dispute in this Action and CANNOT be considered part of a settlement agreement relating to this Action. If it could have been so considered, then no further payment would be required to settle this Action.
Part Iv: The Law
22. In fact, there should be no need to impute interpretations to the transactions surrounding cheque #6100000510. The Rules of Small Claims Court are clear about the requirements for a binding settlement agreement. Rule 14.01.1(1) states clearly and imperatively that:
An offer to settle, an acceptance of an offer to settle and a notice of withdrawal of an offer to settle shall be in writing. [My italics]
23. The very reason that the law imposes a formal requirement for settlement agreements to be in writing is to preclude future disputes resulting from the ambiguities in oral communications and other acts.
24. Over the course of this Small Claims Court action, the Defendants’ have been represented by an associate at Lang Michener, LLP, then by a partner and Queen’s Counsel at Lang Michener, and now by a partner and chair of Lang Michener’s Commercial Litigation Group. Rogers Wireless Inc sent me a “With Prejudice” offer of settlement on October 4, 2006 which meets the formal requirements for an offer to settle legal claims (Exhibit A).
25. It is submitted that if it had been Rogers’ intention that an uncertified cheque sent by Ted Rogers and labelled by him as a “goodwill payment” should be understood as a settlement of this Action, rather than as partial payment towards the honouring of a December 17, 2005 agreement between Ted Rogers and Harry Gefen, exclusive of this small claims court action, then the onus was upon the Defendant to summons the legal expertise abundantly at its disposal to so formalize such a supposed settlement agreement. Failing to have done so, I submit that the Defendant cannot now complain of a legal laxity in its approach to settlement agreements and plead ambiguity in its favour.
26. I submit, therefore, that the current payment into court by the Defendant of $5,000 does not constitute full payment of the $10,000 claim in this case. The January 25, 2006 cheque of $5,309.60 was NOT payment in settlement of this claim but payment in settlement of a claim independent of this Action. Cheque #6100000510 cannot be conjoined with a payment into court of $5,000 in order to satisfy the claim in this action for a $10,000 quantum of damages.
Part V: Settelement negotiations
27. The Defendant sent me an offer of settlement on October 4, 2006 in which Rogers Wireless Inc offered to pay me a cheque of $5,000 in settlement of this Action. The Defendant indicated in that Settlement Offer that, if I failed to accept the offer by October 12, 2006, Rogers would bring a motion for summary judgement.
28. In fact, I responded to the Defendants’ offer of settlement with a counter-offer that was served on the Defendant on October 12, 2006 (Exhibit I). As with all settlement offers, it was proffered without prejudice and with conditions that were integral to settlement negotiations and not to pleadings into the court record.
29. I submit that counter-offer here in its integrity in response to the Defendant’s claim that I rejected its offer and, at paragraph 10 of the Defendant’s factum, its claim that “the plaintiff inexplicably does not wish to accept that payment” (my italics).
30. My argument at paragraphs 10-25 render explicable my rejection of Rogers’ unconditional offer to pay $5,000 into court as settlement of a $10,000 claim.
Part VI: Relief Sought
31. Given that cheque #6100000510 made payable to me by Rogers Communications Group cannot be considered part of a settlement agreement directed to the claim on this Action, I ask the court to deny the Defendant’s motion for summary judgment in acknowledgement that there remain genuine issues for trial in this case, namely the issue of quantum.
32. Given that the Defendant is express in its desire to assume full liability and pay the full quantum of damages for the issues in this Action I ask the court to provide an order by way of summary judgement for the Defendant to pay me $10,000 in damages, a sum which constitutes the full outstanding claim on this Action.
Part VII - Costs
33. As Rogers rejected my counter offer, I am seeking costs on this motion.
Dated at Toronto this 22 day of October, 2006.
All of which is respectfully submitted
___________________________________________
Susan G. Drummond
Harry Gefen's Affidavit
1. On the afternoon of December 17, 2005, Ted Rogers left a voice message on our (i.e. Harry Gefen and Susan Drummond’s) home telephone answering system. In that voice message, Ted Rogers apologized for the issues that were reported that day in the Globe and Mail and noted that Susan Drummond and I had incurred some costs as a result of our ordeal. He specifically noted that I had paid to go to a conference and that we "had other costs". He indicated that if Susan Drummond and I sent an accounting of those costs to his attention, he would "pay them immediately".
2. The conference to which Mr. Rogers alluded was the Annual Toronto Fraud Forum (Exhibit C of the Plaintiff’s motion). Costs for the conference that I attended and for which Ted Rogers offered to reimburse me were $195.00 plus GST (a total of $210.60), plus the value of the time I had expended related to same.
3. In the evening of December 17, 2005, I alone returned Ted Rogers' phone message and spoke with Ted Rogers directly by telephone.
4. In that December 17, 2005 telephone conversation with Ted Rogers, I told Mr. Rogers that Susan Drummond and I had, respectively, expended hundreds and hundreds of hours in our attempts rectify the damages that ensued from the falsely assigned bill for over $14,000.00.
5. In that December 17, 2006 telephone conversation, Ted Rogers responded to my statement about the hundreds of hours that Susan Drummond and I had spent by declaring that if Susan Drummond and I submitted to him a list of our damages resulting from the debacle with Susan Drummond’s stolen cell phone, he would see that a cheque was immediately issued in payment for those costs.
6. On December 22, 2006, Susan Drummond and I couriered a letter (see Exhibit G of Plaintiff’s motion) from both of us dated December 18, 2006 to Ted Rogers in which we outlined our damages. We left Canada for Israel that afternoon.
7. When we returned from Israel, we found a December 21, 2005 letter to Susan Drummond from the president of Rogers Wireless Inc, Robert Bruce, in which Mr. Bruce attempted to state his understanding of the conversation that had transpired between Mr. Rogers and me. It had been mailed to our home.
8. As it was I and not Susan Drummond who had had the above-described conversation with Ted Rogers on December 17, 2006, I sent Robert Bruce a letter dated January 16, 2006 in response. My letter corrected a misrepresentation of the facts in his December 21, 2005 correspondence related to my December 17th conversation with Ted Rogers. A copy of this letter was also couriered to Ted Rogers’ attention.
9. I noted in my letter to Robert Bruce that in my conversation with Ted Rogers, Mr. Rogers had not only agreed to pay for out-of-pocket expenses (as per Robert Bruce’s suggestion) but he had also agreed to reimburse us for our time-related costs, which totalled in the hundreds of hours.
10. Neither Robert Bruce nor Ted Rogers have addressed the correction; except that the latter issued a cheque for $5,309.60 which he described as “goodwill payment.”
Sworn before me )
At the City of Toronto, )
On October 22, 2006 ) __________________________________
) Harry Gefen
__________________________________
Commissioner for Taking Affidavits