Rogers' unhappy circumstance: a judicial grammarian

Rogers has already acquired a degree of notoriety for some grammatical laxity in its approach to legal drafting. Rather infamously, Rogers gained a reputation in 2006 as the company that lost $2.13 million over a misplaced comma. That "most costly piece of punctuation in Canada" was missing from a commercial contract between Rogers and Aliant Inc, enabling the latter to terminate the contract between them earlier than Rogers had anticipated ($2 million dollars earlier).

Apparently Rogers' consumer contract also suffers from grammatical deficiencies:

I argued my case in fundamental breach of contract, aware that I had signed a consumer contract with a virtually impregnable waiver of liability clause on it. In fact I recollect speaking, in the fall of 2005, with two lawyers who had had some dealings with Rogers and, apparently quite demoralized, they advised me to just pay the $14,000 that Rogers was insisting upon because Rogers was a juggernaut and I'd eventually be destroyed by the corporation. One of the lawyers then asked me whether I hadn't seen Rogers' waiver of liability on its contract: "It's dense and exhaustive and impenetrable. You'll never get past it."

I argued my case in fundamental breach of contract aware that the contract between Rogers and me, drafted unilaterally by Rogers, technically disallowed me any recourse if Rogers was found to have committed simple breach of contract. The doctrine of fundamental breach can be used to render exculpatory clauses and waivers of liability unenforceable, particularly in consumer contracts.

But it turns out that I didn't need the doctrine of fundamental breach to get past Rogers' exculpatory clause. In a few short paragraphs, Judge Thomson rendered Rogers' waiver of liability unenforceable on the grounds that it is...



"Following along in my logic, which by necessity is direct, the court is then faced with the issue of section/article 25, called limits on Rogers’ liability generally. This section reads,

“Except for emergency services, on a mandatory basis, we will not be liable to you or anyone else...for any damages, 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.”

I don’t know, maybe Rogers has got the unhappy circumstance of having a judge who’s old enough to have learned grammar, but that sentence doesn’t make any sense to me and I don’t know how a term or condition can do anything to cause damage. Does it hit you? A term or condition doesn’t DO anything. It doesn’t talk about the operation of it. I mean there’s something missing here.

“In connection with...” What does that mean, “in connection with”? "Resulting indirectly or directly in connection with the service, in connection with the equipment...” Well here, the loss was "in connection", to use the word of the defendant, to improperly applying, taking action pursuant to, a term of the contract that they had no right to do. I don’t see that the exclusionary clause can apply."


Poof. That dense, impenetrable, exhaustive waiver just got crunched up and tossed in the judicial trash can. And I walked right passed the little heap of it on the courtroom floor to compensatory and punitive damages for breach of contract.

As of February 22, 2007, Rogers' consumer contract is limping along without a waiver of liability.

Given that Ontario and Quebec have passed amendments to their consumer protection legislation rendering mandatory arbitration clauses unenforceable and ensuring that consumers retain their rights to sue in class action law suits (two anti-consumer devices upon which Rogers had been relying to protect its interests), the absence of a waiver of liability leaves Rogers wide open to law suits, from class action to small claims, with a big huge hole torn in the tangle of contractual thorns that the corporation throws up to keep the law at bay.

When people asked me throughout the delay period for appeals if I thought Rogers was going to appeal Judge Thomson's decision, it was this gaping vulnerability that left me circumspect about the security of her decision. There's potentially quite a bit at stake for Rogers in letting it stand.

I could see, however, that Rogers was caught between the devil of a limping contract and the deep blue sea of more bad press.

The appeal period has passed. Limping contract it is.

Who can know whether Judge Thomson was playing to the irony of grammatical defects in yet another Rogers contract when she tore this particular hole through Rogers' consumer contract? There were other moments in the trial when the judge referred to a context larger than courtroom 110 and to reputations that were not exactly established in evidence.

At one juncture, Judge Thomson interrupted Rogers' counsel in his efforts to portray the corporation as having exhibited uncommon decency in never having sent my account to collection and berated him for testing the credulity of the court: "Oh please. Don't make out that Rogers has been NICE in these circumstances. Everybody knows that Rogers is...[here she chose her words cautiously]...that...that Rogers is ROGERS!!"

By this simple tautology, the judge cleverly transformed the proper noun into a new and popularly understood (at least in Canada) descriptive while avoiding any appealable taint of bias.

Judge Thomson effectively said: Give me a break. Don't even begin to make out that Rogers is a decent corporate citizen. "Everybody knows that Rogers is ROGERS!!" That's the broadest granting of judicial notice to gossip and popular knowledge that I'm familiar with.

Who can know whether there was rich irony in a judgment rendering $2-Million-comma-Rogers' waiver of liability unenforceable on grammatical grounds?

I suspect Rogers has been adroitly...Rogered.