Sounding in Law


Susan G. Drummond v. Rogers Wireless Inc. (SC-05-24969-00)

On September 19, 2005, I filed a claim against Rogers Wireless Inc in Toronto Small Claims Court.

The original claim was for compensatory damages flowing from Rogers’ fundamental breach of contract:

On September 2, 2005, Rogers unilaterally suspended wireless services to my son’s cell phone without cause. My account was in good standing. The exchange of monthly payments for wireless services is the very essence of the Wireless Service Agreement that I signed with Rogers Wireless Inc. on August 14, 2004.

On October 4, 2005, Rogers entered a Statement of Defence into the court record.

On October 11, 2005, I amended my original pleadings and served them on Rogers, including an Exhibit that contained a CD on which I had burned the conversation between Harry Gefen and the Manager of Rogers Law Enforcement Support/Fraud and Security.

Rogers sent me an offer of settlement on October 4, 2005 in which Rogers proposed that I pay the corporation $2,000 to settle the over $14,000 supposedly owing on my cell phone and to settle my claim against Rogers in Small Claims Court. I reminded Rogers that I had requested several documents under the contract that I had not yet received and was therefore not in a position to negotiate.

I amended my pleadings in August of 2006, and then again on January 5, 2007. My amended pleadings have three causes of action: fundamental breach of contract, breach of a contractual obligation of good faith, and breach of a duty of care. Fundamental breach relates to Rogers' unilateral suspension of services to my son's cell phone. Breach of a contractual obligation of good faith and breach of a duty of care relate to Rogers' actions with respect to both my son's cell phone (and contract) and my cell phone (and contract). From fundamental breach flows a claim for compensatory damages. Punitive damages are being claimed for all three causes of action.

On June 8, 2006, I asked the court for a motion to strike paragraph 4 from Rogers Statement of Defence and swore an affidavit to that motion. My motion was denied.

Rogers served me with an Amended Statement of Defence on August 14, 2006. And then served me again with a "Further" Amended Statement of Defence on January 2, 2007.

I summonsed three witnesses to testify at the trial:

  • On July 6, 2006, I served a Summons to Witness on Edward S. Rogers, also known as Ted Rogers

The trial was scheduled to go forward on September 11, 2006.

At the end of August Rogers Wireless Inc asked for a motion to adjourn so they could get a motion to quash my summons to witness of Ted Rogers. I consented to Rogers request for an adjournment. Rogers booked October 26, 2006 for that motion.

On October 4, 2006, Rogers sent me another offer to settle. The offer had the words "with prejudice" on the top. The offer suggested that Ted Rogers' January 25, 2006 "goodwill" cheque to me for $5,306 should be regarded as a partial settlement offer of my Small Claims Court case. Rogers offered to pay another $5,000, claiming that would bring the total settlement offer to $10,306.

On October 12, 2006, I sent Rogers a counter-offer.

On October 19, 2006, Rogers served me with a motion for summary judgment for the October 26, 2006 motion date that had been booked for the motion to quash.

On October 22, I served Rogers with my factum and affidavit to their motion for summary judgment.

On October 26, 2006, the judge heard Rogers' motion and dismissed it.

On January 9, 2007, Rogers moved to have the summons of Ted Rogers and David P. Miller quashed. I moved to have the court order Rogers to produce documentation. The motion judge quashed the summons of Ted Rogers and David Miller on the condition that the paragraph of Rogers defence claiming that I was contributorily negligent for what happened to my son's cell phone be struck. The judge also ordered Rogers to produce a subset of the documentation that I requested.

On February 8, 2007 both Rogers and I moved to amend our pleadings. Both motions were denied.

The trial was held on February 20 and 22, 2007. The judge found against Rogers in simple breach of contract, ruling that Rogers' waiver of liability was unenforceable due to its lack of grammatical clarity. Rogers was ordered to compensate me for the cost of Bell Mobility phone and for three days worth of lost wages spent driving my son back and forth to school. Rogers was also ordered to pay $2,000 in punitive damages for behavior that the judge characterised as egregious, immoral, and malicious. No costs were ordered.

Rogers did not appeal the decision.