Breach of Duty of Care and Limitation of this Cause of Action to damages flowing from Rogers' fundamental breach of contract related to my SON’S cell phone:
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There are two separate contracts that relate to my account with Rogers – one relating to my cell phone number and one relating to my son’s cell phone number (Exhibits A and B of Rogers’ Statement of Defense respectively).
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In relation to the contract for my cell phone number, Rogers breached its duty of care to prevent fraudulent phone calls being made when they failed to follow their standard protocol for the prevention of cell phone fraud on my cell phone. The damages that I have suffered as a result of the way that Rogers handled the contract relating to MY cell phone are well in excess of the $10,000.00 limit imposed by Small Claims Court.
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To date, I have spent more than 350 hours since Rogers “escalated” my account to their Legal Department and began subjecting me to “treatment” from their collection department on August 26, trying to mitigate the damages that have flowed from Rogers’ negligence and bad faith interventions. Apart from loss of income and loss of business opportunities arising since August 26, 2005, Rogers caused a significant disruption to a $106,000.00 research agenda that I undertook for my sabbatical year that began in July of 2005. I am entitled to seek compensation for those damages in the form of a year’s paid leave of absence from my regular job as a tenured faculty member at Osgoode Hall Law School.
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Given that my annual salary is over $130,000.00, those damages would not be recoverable in Small Claims Court. The nexus of events relating to the fraudulent calls made on MY cell phone constitute a completely separate cause of action than this one in Small Claims Court, rooted in a separate contract. If I were inclined to recover those more substantial damages flowing from the contract relating to MY phone, I am entitled to institute a civil action for those damages in Ontario Superior Court.
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The damages claimed in this cause of action are restricted to those that flow from Roger’s fundamental breach of contract with respect to my SON’S cell phone and related contract on September 2. I mitigated my losses flowing from the fundamental breach of that contract on September 14 by purchasing a Bell Mobility phone for my son. Damages from the cause of action laid out in my statement of claim are fully within Small Claims Court’s limitation of $10,000.00 for claims of damages.