Amended Pleadings

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1. My July, 2005 invoice was paid in full and on time. My August, 2005 invoice was due for payment on September 10, 2005. Throughout August and September, my account was (as it now remains) in good standing.
2. The following facts derive from Exhibit D of the Defendant’s Statement of Defense (hereinafter “Decoded Remarks”) and can be located by date in that record:
3. On August 26, 2005, 16 days before my account was due and before exchanging a single communication with me regarding either my cell phone (416-301-6203) or the charges on my August invoice, Rogers “escalated” my account to their Legal Department. When Rogers pre-emptively “escalated” my account to their legal Department prior to a single exchange with me, there could not remotely have been a dispute.
4. Sixteen days before my account was even due and before Rogers had exchanged a word with me, Rogers had sent my account for “treatment” by Rogers internal collection department, a “treatment” that was only suspended on September 7.
5. I submit that it is unusual for Rogers to call a consumer before their bill comes due to tell them about an upcoming payment; provocative for Rogers to escalate the account to their Legal Department prior to even contacting the consumer and prior to any payments coming due; and coercive to subject consumers to collection “treatment” before the invoice even comes due and before any sums for “collection” have been established.

6. Rogers affirms (in their “Decoded Remarks”) that on September 2, eight full days before any payment on my account was due, Rogers put a block on my son’s cell phone because I had not made a “promise to pay” charges on MY cell phone.
7. I was never under any legal obligation to make a “promise to pay” for all charges to my cell phone. Given that I only contractually agreed under clause 1 of Rogers’ Wireless Service Agreement (hereinafter WSA, Exhibit A) to pay for the “undisputed” charges on my account, I was certainly under no legal obligation to make a “promise to pay” for disputed charges on my account – and most certainly I was under no legal obligation to make a “promise to pay” anything eight days before payment on my account became due.

8. On August 28, Rogers was notified that a police investigation was underway regarding calls made on my cell phone. I provided Rogers with the police report number and the names of the investigating officer and detective. On September 4, I bought a new cell phone, installed a new SIM card, and re-opened cell phone services on my Rogers Wireless Account using the very same number that had been used on my stolen phone (416-302-6203). Without hesitation, Rogers re-opened my old cell phone number for use by me, clearly accepting the veracity of my account that my cell phone had been stolen and clearly unconcerned that charges would escalate on that number.
9. In Rogers “Decoded Remarks” on August 26, Rogers acknowledges that my son’s cell phone was not in dispute [neither was mine at that point] and should not be blocked.
10. Eight days prior to payments on my account coming due, the only charges that could “escalate” on my son’s cell phone were the regular monthly charges, always very modest, that have accrued on either of our phones prior to mine being stolen in July of 2005.
11. There is no conceivable “escalation” of charges on my son’s cell phone that was reasonable or proper for Rogers to preclude. In any event, I was entitled to those charges: I had paid for them.

12. Rogers has my home phone number. Accounts Receivable called me at my home phone number 16 days prior to my invoice coming due to tell me that Rogers wanted the money it claimed was its due.
13. Beyond the many, many phone conversations that I have had with multiple Rogers’ departments since August 27, I have been very easy to contact at my home phone number. In both phone calls and in writing, I have invited Rogers to call me. I have urged Rogers to call me. And I have even politely insisted that Rogers contact me to resolve the matters relating to my account.

14. The provision of cell phone services in exchange for payment of monthly charges is an essential aspect of Rogers’ WSA. In unilaterally and without cause suspending service to my son’s cell phone, Rogers fundamentally breached the contract between us.
15. Parties in fundamental breach of contract are liable for all reasonably foreseeable damages. That I would need to spend three hours a day driving my son to and from school as a result of Rogers’ fundamental breach of contract and that I would suffer economic loss and loss of business opportunities as a further consequence are both reasonably foreseeable damages of which Rogers did not need specific advance notice. (See Exhibit K regarding economic loss and loss of business opportunities).
16. In support of the general statement that it is reasonably foreseeable that a consumer would suffer the kinds of damages complained of in this action I attach an article entitled “Is He Ready To Go It Alone?” published on August 27, 2005, in a national newspaper, about precautions that reasonable parents would take in preparing their children to use the public transit system. (Exhibit B: under “Transit Proofing Tips”)
17. Although the party who suffers damages in cases of fundamental breach of contract is not required to provide specific notice of what those damages might consist in, in my particular case, I explicitly stated over the phone to Rogers on September 2, 3, and 4 that the primary reason I entered a wireless service contract with Rogers was so that my son would be safer taking the TTC. I began, in writing, to notify Rogers of the specific damages that were foreseeable in relation to my son’s cell phone on September 3. I sent Rogers six written notes to that explicit effect between September 3 and September 14, which are attached at Exhibit C. Although advance notice of specific damages is not required for the recovery of damages that result from fundamental breach, in this case, Rogers was fortunate enough to have been gratuitously and abundantly provided with such notice.

18. On September 21, I had a phone conversation with someone at Rogers called “Jason”. I recorded that conversation and have attached a digital audio recording of it to this response. (Exhibit D)
19. In that phone conversation, beyond acknowledging several times that Rogers had made a mistake when it put a block on my son’s cell phone, Jason read off of the computer record on my account which he had before him on the screen. Jason indicated clearly, three separate times, that the block on my son’s cell phone was lifted on September 16. So in fact, the block on my son’s cell phone was removed a full two days after Rogers’ Legal Department had received written notice from me that I had mitigated my losses from their fundamental breach of contract by purchasing a cell phone for my son from Bell Mobility. (Exhibit E)
20. Rogers’ “Decoded Remarks” in their Statement of Defense contain a note indicating that the block on my son’s cell phone was lifted on September 12 and the Statement of Defense repeats this inaccurate claim.
21. It appears that someone at Rogers manipulated the “Decoded Remarks” to make it appear as though the block was removed on September 12, rather than September 16.
22. This apparent manipulation of documentation entered into the court record appears to be in service of Rogers’ defence at paragraph 5 that I took it upon myself to obtain another cell phone for my son and that “The Defendant denies any and all responsibility for this purchase”.
23. If, as Rogers CSR Jason noted in a recorded telephone call, cell phone services were restored two days AFTER I hand-delivered notice to Rogers that I had mitigated my losses by entering a wireless service agreement with one of Rogers’ competitors, then paragraph 5 should fail: Rogers is wholly responsible for that purchase in virtue of Rogers fundamental breach of contract; a responsibility unmitigated by Rogers until two days AFTER I had notified Rogers of the remaining utter futility of their contract in light of Rogers’ own fundamental breach.

24. In the phone conversation of August 27, I indicated that my phone had been missing in May of 2005. An hour and a half after this August 27 conversation, my partner, Harry Gefen, called Rogers to ask what had been recorded to the file and to state, in no uncertain terms, that Rogers’ computer remarks were inaccurate given that the loss of my cell phone in May was unrelated to the theft of my cell phone in July. My cell phone, misplaced in May, had subsequently been found and used by me in June and right up until July 22. I have persistently acknowledged responsibility for all phone calls on my cell phone until July 22, 2005 making its misplacement in May irrelevant.
25. On August 27, Mr. Gefen explicitly asked for a correction to the record of any indication that the misplacement of my phone in May was related to the theft of my phone in July.
26. The September 3 note to the “Decoded Remarks” says “She herself said she thought phone was lost in May and never reported it.” It is inconceivable to me that I made that statement on September 3.
27. Further, the note to the “Decoded Remarks” on September 9 at 11:15 which says “Dimitros [sic] said the SIM card was fried on September 7” appears to have been lifted (and modified) from the entry of September 9 at 11:11, third sentence from the end of that paragraph (at “Customer was informed on…by Rogers Video that the SIM card was fried).
28. The conversation that I had with “Dimitros” [sic] at Rogers video outlet at 333 Bloor Street took place on September 6, although a letter from me to Rogers subsequently confused the date and the record appears to have been hastily modified to match my correspondence, not the conversation that actually took place.

29. The “Decoded Remarks” (established upon the “Literal Remarks” that are entered into the computer file of Rogers consumers) that Rogers submits to court records have an aura of authority and veracity to them that would be hard for the ordinary consumer to match. If indeed this manipulation of the court record took place, this provides evidence of a “cover up”, one of the issues canvassed in Whiten v. Pilot Insurance Company (2000) 209 D.L.R. (4th) 257(hereinafter Whiten) on when punitive damages are warranted.
30. Whiten also indicates that “Deterrence is an important justification for punitive damages. It would play an even greater role … if there had been evidence that what happened on this file were typical of the defendant’s conduct towards policyholders.”
31. Rogers consumer Erin Hipwell has published a testimonial that indicates that she has had the experience of the records on Rogers’ files conveniently no longer being present, or being suddenly introduced, on Rogers’ computer records. And this pattern of present or absent “records” entered by Rogers into their own “Literal Remarks” happened to coincide neatly in Erin’s case as well with Rogers’ interests and against her own. (See page iii of Exhibit L).
32. Erin’ Hipwell’s experience appears to reflect the emergence of a pattern of the Defendant’s “cover up” in the interests of furthering Rogers’ business interests. What happened to the “Decoded Remarks” in my file may indeed not be atypical of Rogers’ conduct.
33. Both a “cover up” and a pattern of such conduct are relevant for punitive damages.

34. On September 6, I requested Rogers to provide me with a specific list of documents and records relating to my file, as per my right under clause 25 of Rogers’ WSA. I specifically requested all digital audio recordings to my file (including the digital audio recording of Mr. Gefen’s correction to the file on August 27). I have not received virtually any of that documentation and have repeatedly requested its release from Rogers.
35. In light of Rogers failure to deliver documentation as per my right under the contract, I hereby request that the court subpoena the documentation requested in Exhibit F.

36. On September 27, 2005 at a public conference, Cindy Hopper, Manager of Law Enforcement Support/Fraud and Security at Rogers stated that Rogers has a protocol in place to detect and prevent phone calls being fraudulently made on consumer’s cell phones. Rogers has a systematic, computer-generated program that immediately alerts their Fraud Department of atypical calling patterns, such as the ones documented on my August and September invoices. Rogers has adopted the protocol of calling the holder of the account as soon as Rogers becomes aware of that atypical call pattern to verify whether or not the account holder is the party making the phone calls. If Rogers cannot quickly get a hold of the consumer, the next step in Rogers’ protocol is to put a block on the cell phone until such time as they hear from the verifiable holder of the account. (Exhibit G with attached digital audio recording).
37. In a Q and A session after her presentation, Cindy Hopper stated to technology journalist Harry Gefen that this protocol was in place in 1998 (and so prior to me entering my contract with Rogers in 2004) when Ted Roger’s own cell phone was cloned ten separate times by a group linked to Hezbollah, making fraudulent calls to Libya, Saudi Arabia, Kuwait, and Syria with his cloned cell phone number.

38. 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).
39. 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.
40. I have spent more than 180 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 (and continue to flow) from Rogers’ negligence and bad faith interventions. Apart from loss of income and loss of business opportunities arising since August 26, 2005, Rogers has caused a complete disruption to a $106,000.00 research agenda that I have undertaken 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.
41. 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.
42. 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.

43. Rogers pre-emptive “escalation” of my account to the Legal Department and to “treatment” by Rogers Collection Department before even making contact with me and 16 days prior to my account being due is provocative, harassing, and coercive and constitutive of bad faith.
44. Although I repeatedly requested that Rogers disaggregate disputed from undisputed charges on my August and September invoices so that I could pay off my undisputed charges in a timely manner, Rogers persistently refused to disaggregate “disputed” from “undisputed” charges, persistently misrepresented that I owed the “total” charges on my account, and persistently insisted that I could not pay off only the “undisputed” charges on my invoices. This misrepresentation is documented in Exhibit H and also constitutes bad faith and unfair trade practices on Rogers’ part.
45. Even though I paid off all of the undisputed charges on my August invoice before the payment due date on September 10, Rogers sent an automated credit report to both Equifax and TransUnion (Canada’s two national commercial credit bureaus) on September 14 indicating that payment of over $12,000.00 on my account was overdue. Those amounts were never “overdue”. They were formally and legitimately “in dispute” – and remain so to this date. Before I even received my September invoice, the credit bureaus noted that my credit rating had been negatively affected. As with my August invoice, I paid off my September invoice in full before it became due on October 11 (see Exhibit I). My account with Rogers has never been “overdue”. Elements of it have been “in dispute”, consistent with my rights under the contract. It is coercive of Rogers to pre-emptively, and without cause, damage my credit rating. This behavior amount to an unfair trade practices and is also constitutive of bad faith.
46. My September invoice indicates that Rogers levied a “late penalty” of $243.24 plus taxes on the charges from my August invoice that were formally and legitimately “in dispute” (Exhibit J). (This “late” penalty also shows up on my credit report with Equifax and Transunion). This 2% penalty on “disputed” charges, to be compounded monthly (26.82% per year), forms part of a nexus of coercions that constitute pre-emptive “treatment” from Rogers Collection Department. A “late” penalty on “disputed” (not “overdue”) charges is unconscionable and constitutes an unfair trade practice and bad faith.
47. Rogers has contractually obliged itself to submit to me, upon my request, all records related to my service. Those records were requested on September 6. (see Exhibit F). With one insignificant exception, those records have not yet been delivered more than a month later. Rogers is protracting the resolution of the dispute between us by refusing to deliver those records. This is further evidence that Rogers is not acting in good faith. This bad faith is compounded when Rogers simultaneously protracts the dispute and levies a late penalty on disputed charges.
48. As of July 30, 2005, the Ontario Consumer Protection Act has rendered unenforceable the clause in Rogers WSA that purports to commit Ontario consumers to binding commercial arbitration. That clause still appears in Rogers WSA (See Exhibit A; Roger Wireless Service Agreement downloaded in Toronto, Ontario off of Rogers web site under Terms, March 2, 2006). The Manager of Compliance and Consumer Services with the Ontario Ministry of Government Services has intervened in my case and is currently investigating the Ministry’s concerns over “the mere existence of item #34 (“Arbitration Clause) in Rogers standard/general Service Agreement”. The ongoing presence of this clause on Rogers WSA in Ontario constitutes an unfair trade practice and is indicative of a corporation that is behaving in bad faith.

49. The most egregious manifestation of bad faith on the part of Rogers is the placing of a block on an 11 year old child’s cell phone as part of a campaign of “escalation” and collection “treatment”. This behavior is high handed in the extreme and warrants, I believe, an additional order of punitive damages flowing from this cause of action.

DEVELOPMENTS SINCE ORIGINAL FILING OF THE STATEMENT OF RESPONSE

50. On December 17, 2005, the Globe and Mail ran a front page story that covered not only my debacle with my own stolen cell phone, but that also canvassed a small portion of the material uncovered by Harry Gefen at the Toronto Fraud Forum – mentioned in paragraphs 36 – 37 above and supported by the CD in exhibit G.
51. Exhibit M contains all of the Globe and Mail articles to date (March 2, 2006) on the story that relates to the theft of MY cell phone.
52. I hereby include (at Exhibit N) the full transcripts of the digital audio recording disclosures that one of the managers at Rogers Fraud Department (Cindy Hopper) made to Harry Gefen on September 27, 2005.

ROGERS’ PUBLIC AND PRIVATE APOLOGY WITHOUT RESERVATION, WITHOUT EXCUSE, AND WITHOUT QUALIFICATION

53. As is clear from the Globe and Mail articles and the news releases that Rogers issued over the ensuing days, Mr. Ted Rogers, the President and CEO of Rogers Communications Inc., apologized publicly to me, without reservations, for the debacle relating to MY cell phone.
54. Mr. Rogers tried to reach me on my cell phone within hours of the Globe story hitting the national news. Because I was in the car when he called (heading, as it happened, to CBC to give an interview about my experiences with Rogers Wireless) and I didn’t find it prudent to talk on my cell phone in the car, I asked Mr. Rogers to leave a message on my home phone and I told him I would contact him later.
55. On the message that Mr. Rogers left, he indicated that he knew nothing of the issue that was reported in the Globe and Mail until he read it and added that that was no excuse. As he said “I’m accountable”. He also apologized deeply on behalf of the company. He reiterated that “there’s no excuse for it” and added “without reservation, I give you my apology.” He also added that “all of the amounts will be written off.”
56. Rogers Vice President of Communications, Jan Innes, made a press release to the CTV Program Canada AM on December 19 that stated that “We [Rogers] did not follow our normal procedure in Ms. Drummond’s case.” She adds that “[We] are very sorry she had this experience with Rogers.” (Exhibit O)

ROLE PLAYED BY THE MEDIA IN SETTLING THE DISPUTE REGARDING MY CELL PHONE

57. Three days before the Globe and Mail broke the story relating to MY cell phone on December 17 and three days before Ted Rogers called me personally to zero my bill, Rogers Wireless sent out my December invoice, which I received on December 22, a week after Mr. Rogers’ intervention. (Exhibit P)
58. That invoice indicated that I that I owed Rogers $14,585.60. A full $284.50 of that amount derives from a “late penalty” of 26.82% on charges from the previous month’s invoice that were in dispute.
59. I disputed my December invoice on December 22, 2006 in the same manner that I disputed all of my invoices from September 2005 onwards.
60. It appear incontrovertible that Rogers Wireless had every intention of insisting that I pay them the full $14,585.60 right up until the very moment that the media brought the story to the public’s attention.

FURTHER INDICATION THAT THE MEDIA PLAYED A MAJOR ROLE IN THE DISPUTE REGARDING MY CELL PHONE: CREDIT BUREAU REPORTS

61. Rogers sent a report to Canada’s two credit bureaus in September, and every month thereafter until AFTER my story was covered in the Globe and Mail on December 17, indicating that I was “overdue” in paying my Rogers Wireless bill which represented an unpaid debt of more than $14,000.00.
62. Since I became apprised in September of the damage to my credit rating as a result of Rogers’ reports to the credit bureaus, I began a struggle with the Credit Bureaus to counter Rogers’ claims that my invoices were overdue and insisted that an investigation be launched at Equifax regarding charges that I insisted were “in dispute”, not “overdue”.
63. Adriana Moukas, Senior Specialist with Equifax’s Consumer Affairs, had not cleared my credit report of Rogers’ damaging claims until January 6. I was still struggling on December 28 to clear my credit report of the damage to my credit rating (see Exhibit Q).
64. It appears incontrovertible that Rogers would have persisted in pressuring me to pay the over $14,000 invoice or to otherwise settle through use of the credit bureaus had Peter Cheney’s articles not appeared in the Globe and Mail on December 17 and following.

RELATION OF MEDIA INTERVENTION TO PUNITIVE DAMAGES: PUBLIC INTEREST ENFORCERS I

65. The seminal Canadian Supreme Court case on punitive damages, Whiten, indicates that there was something unique and unusual about the plaintiff Whiten’s situation that placed her in a position to be public interest enforcer through the vehicle of punitive damages. “No one other than the [plaintiff] could rationally be expected” to be capable of establishing that the defendant Pilot had behaved abominably.
66. In her case, Ms. Whiten, though impecunious, had managed to pay a lawyer $320,000 that she did not have to recover compensatory damages of $345,000 and was fortunate that her faith in her lawyer was well placed as she was awarded soliciter-client costs. As Whiten indicates, “overcompensation of a plaintiff [in the form of punitive damages] is given in exchange for this socially useful service. No one other than Ms. Whiten could rationally be expected, the Supreme Court noted, to undertake such a gamble.
67. It appears evident that “no one other than” me “could ever rationally be expected” to find him or herself (as a Rogers consumer) in a situation such that their journalist partner has the ingenuity to locate, and then attend, a public Fraud Forum at which a manager of Rogers’ Fraud Department is speaking to insurance adjusters and special investigation officers and through his journalistic investigations manage to capture that Rogers representative on audio tape breaking an exclusive story about Ted Rogers’ own cell phone being cloned by a group linked with Hezbollah.
68. In light of the invoice that was sent out three days before that story broke in the Globe and Mail manifesting Rogers persistent intent to extract over $14,000 from me, it appears that the ordinary consumer, lacking the fortuity of a brilliant scoop in the national and international media, would have extraordinary difficulty performing the socially useful service of being overcompensated by a punitive damages award, along with extraordinary difficulty in getting that $14,000 bill zero’d.
69. I find myself uniquely positioned to perform the socially useful service of seeking the deterrent effect of punitive damages on behalf of other Rogers consumers who could not be rationally expected to find themselves in my shoes; uniquely positioned to be “overcompensated” in exchange for the social utility of putting myself to the trouble of pleading punitive damages.

OTHER DEVELOPMENTS: TEA WITH TED ROGERS

70. On January 25, Mr. Ted Rogers sent me a letter indicating that his corporation was making a “goodwill payment” to me of $5,000. (Exhibit R). I shortly thereafter received a cheque from Rogers Group of Companies for $5,309.60.
71. I did not cash that cheque from Mr. Rogers.
72. I never received a release for accepting that cheque; there was never any indication that the gesture of $5,000 was anything but a “goodwill gesture”; I never received any indication that the “goodwill gesture” was anything more than a unilateral wish on the part of Mr. Rogers to consider all disputes between us as settled.
73. Mr. Rogers, as publicly acknowledged (see Exhibit M), had agreed to come to my home for tea so that we might discuss, in the privacy of my home, the depth of my travails with Rogers Wireless and so that we might canvass the other newsworthy stories that did not make it into the national and international media coverage relating to MY cell phone.
74. Although we had several solicitations from national and reputable media outlets to be a “fly on the wall” in our home when Mr. Rogers came to tea, we gratuitously indicated to Mr. Rogers that we regarded the meeting to be private; and we also conveyed to him that he had our assurances that we would neither record nor transmit any of our conversation. (Exhibit S).
75. Mr. Rogers responded with gratitude to this offer, indicating that he agreed that “our meeting is intended to be private and, as such, [he] would like to keep it that way without any media or photographers.” (Exhibit T)
76. It was my intention at that rendezvous, scheduled for February 6, 2006, to bring up with Mr. Rogers my then upcoming March 1, 2006 pre-trial conference relating to the damages flowing from Rogers’ fundamental breach of contract relating to MY SON’S cell phone.
77. I also wanted to thank him personally for Rogers’ “goodwill gesture” that was surely intended to go some way to recognize the travails relating to MY cell phone that Rogers Wireless had put me through.
78. I also intended to query him at our scheduled rendezvous as to where the figure of $5,000 came from, particularly in light of my pleadings (at paragraphs 38-42 above) that indicate that damages relating to MY cell phone would be in the range of $130,000.00 and damages in this Small Claims action relating to MY SON’S cell phone were just over $9,000.00
79. It was my intention to try to arrive at a settlement of those outstanding claims with Mr. Rogers so we could both be spared the trouble of further proceedings in court.
80. Mr. Rogers cancelled that scheduled appointment for Tea at the 11th hour on February 6. Rogers’ Vice President of Communications, Jan Innes, called on Mr. Rogers behalf in the late morning of February 6 to inform us that Mr. Rogers would now only be pleased to welcome us to tea at Rogers Corporate Head Offices, around the corner from me; or discuss over the phone my travails with his corporation.
81. I sent Mr. Rogers a letter explaining why that alternative to meeting in my own home was not palatable to me (Exhibit U).
82. Mr. Rogers sent me a letter confirming that if I wanted to meet him for tea, it would be at Rogers corporate head offices, or over the phone. Period.
83. Although the invitation to Mr. Rogers to meet us in my home remains open, that rendezvous has yet to be re-scheduled.

OTHER DEVELOPMENTS: PATTERN OF CONDUCT REVEALED BY OTHER ROGERS CONSUMERS

84. Since Peter Cheney’s articles broke in the Globe and Mail beginning on December 17, 2005, I have been inundated by supportive emails from ordinary Canadians for whom the story struck a chord.
85. I have also been inundated with emails from Rogers consumers who shared with me their own similar tales of woe.
86. From these emails I have been able to decipher a pattern of conduct on Rogers part.
87. The Whiten case 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”.
88. With the input of other Rogers consumers who have been in contact with me, I believe that a pattern of conduct can be established (see below) that confirms that Rogers has sought to profit from handling cases such as my own in the manner in which it did right up until the national and international media reported on my debacle with Rogers. I believe there is evidence from these emails and from other media reports that confirms that what happened on my file is indicative of a “deliberate corporate strategy” on Rogers part.
89. The Whiten case establishes that “it is rational to use punitive damages to relieve a wrongdoer of its profit where compensatory damages would amount to nothing more than a licence fee to earn greater profits through outrageous disregard of the legal or equitable rights of others”
90. If it can be established that Rogers has profited from approaching other consumers in the same inexcusable manner (to use Mr. Rogers’ turn of phrase) as his corporation treated me, then the merit in a punitive damages award is more clearly established.
91. Even the $5,000 “goodwill gesture” offered to me from Mr. Rogers cannot be regarded as simply “the cost of doing business” if it does not also deter Rogers from treating other consumers in a similar manner.

FOUNDATION FOR ORDER ELIMINATING ORDER FOR UNSUPPORTED DEFENCES IN ROGERS STATEMTENT OF DEFENCE

1. PARAGRAPH 4 OF ROGERS’ STATEMENT OF DEFENCE ROGERS’ ABILITY TO TAKE ACTION TO STOP FRAUDULENT PHONE CALLS

92. As clearly indicated in Exhibit N, Rogers has had a protocol in place for detecting atypical call patterns and for mitigating the losses flowing from fraudulent misappropriation of wireless services on lost or stolen cell phones since Ted Rogers’ own cell phone was cloned by a group linked with Hezbollah in 1997.
93. As Cindy Hopper indicates clearly in the transcripts at Exhibit N, Rogers protocol is to suspend services to cell phones once Rogers fraud management system that looks for extraordinary patterns flags atypical call patterns. This prophylactic suspension of services kicks in if Rogers cannot immediately get a hold of the wireless subscriber when Rogers’ computer-supported algorithm for atypical call patterns flags unusual activity on the account.
94. As Jan Innes, Rogers VP of Communications indicated on December 18 (see Exhibit O) Rogers not only had a “normal procedure” for such instances, Rogers didn’t follow their “normal procedure” in my case.
95. Rogers Statement of Defence claims at paragraph 4 that Rogers was not able to take any action to stop fraudulent phone calls prior to August 28th, a full 34 days after the overseas phone calls had begun; a full 12 days after they had ceased.
96. Clearly Rogers WAS able to stop those fraudulent phone calls if they had followed their “normal procedure” around atypical calls in my case.

ROGERS CLAIM THAT I AM CONTRACTUALLY LIABLE FOR THE TOTAL CHARGES MADE ON MY CELL PHONE PRIOR TO DATE OF NOTIFICATION THAT PHONE IS STOLEN

97. Although I signed a Wireless Service Agreement indicating that I owe the total charges that accumulate on my cell phone until the moment that I report my phone stolen, Mr. Rogers apologized unreservedly for imputing those charges to my account. He zero’d those charges from over $14,000.00 to nothing. And he offered me a good will gesture of $5,000.00 for my troubles despite the assertion in the statement of defence that I was contractually liable for the full amount.
98. The Chief Executive Officer and founder of Rogers Group of Companies, Mr. Ted Rogers himself, does not appear inclined to hold the consumer to the terms of the standard form contract that Rogers’ own legal department devised.

ROGERS’ ROUTINE LACK OF RESPECT FOR THE CONTRACTUAL CLAUSE THAT HOLDS CONSUMERS LIABLE FOR THE TOTAL CHARGES ON LOST OR STOLEN CELL PHONES

99. At least two of the emails that I received following the publication of my debacle with Rogers in the Globe and Mail indicate that, as a result of my case, Rogers has changed its policy with respect to lost or stolen cell phones.
100. At page viii of Exhibit V, one Rogers’ consumer states clearly that Lisa Brussa-Toi, assistant to the President of Rogers Wireless Inc, informed him that as a result of my case, Rogers has changed its policy for lost and stolen cell phones and now treats fraudulent misuse in the same manner as do credit card companies.
101. Rogers new policy, announced to this consumer on January 17, 2006, is that “if a phone is lost or stolen and abused, [Rogers] will conduct an investigation and they willl not charge the victim for all those fraudulent charges.”
102. I alerted a second Rogers consumer (who found himself facing a similar travail to my own regarding a stolen cell phone) to this change in policy. At page vi of Exhibit W, this consumer reported to me immediately that by informing Rogers that he was aware of the change in policy, he was able to bring about a swift zeroing of his bill – and a complete reversal of the contractual claim at paragraph 19 of the Wireless Service Agreement that holds consumers liable for total charges on stolen or lost cell phones.

SUMMARY OF RATIONALE TO STRIKE UNSUPPORTED DEFENCE AT PARAGRAPH 4 FROM ROGERS’ STATEMENT OF DEFENCE

103. In light of the evidence presented at paragraphs 92-102 above, Rogers has clearly acknowledged the lack of validity of the contractual clause holding me liable for the total charges on my stolen cell phone; as well as the insufficiency of support for their Statement of Defence in paragraph 4.
104. Paragraph 4 of Rogers’ Statement of Defence should be struck from the Record accordingly.

2. FOUNDATION FOR STRIKING PARAGRAPH 5 OF ROGERS STATEMENT OF DEFENCE: PROTOCOL FOR CONTACTING CONSUMERS ON LAND VS. CELL PHONES

105. Rogers claims at paragraph 4 of the Statement of Defence that they made reasonable efforts to contact me via my son’s cell phone to have me contact Rogers immediately prior to Rogers suspending service to MY SON’S cell phone.
106. On page ii of Exhbit W, a Rogers consumer reveals that Rogers attempted to contact him about his cell phone by leaving a message on his LAND line.
107. Rogers defence (regarding the unilateral suspension of wireless services to MY SON’S cell phone) that reasonable efforts had been made to contact me regarding this action is not supportable.
108. This evidence, when conjoined with Rogers apparent manipulation of the court record outlined at paragraph 18-28 above, indicates that paragraph 5 of Rogers’ Statement of Defence should be struck from the record.

GROUNDS FOR PUNITIVE DAMAGES

109. The seminal Canadian case on punitive damages, Whiten, lays out the circumstances under which punitive damages are warranted.
110. Amongst other criteria, 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 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.
111. These criteria are met in the nexus of circumstances surrounding this case of Rogers’ unilateral suspension of wireless services to my 11 year old son who was about to take the Toronto Subway, alone, for the first time in his life.

ACTIONABLE WRONG IN BREACH OF CONTRACTUAL GOOD FAITH

112. The Whiten case makes abundantly clear 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. The actionable wrong is independent of the breach of contract. It arises from a breach of a contractual obligation to deal with a contracting party in good faith.
113. The arguments that have been advanced throughout this pleading (amended and original) demonstrate a pervasive lack of good faith in Rogers’ contractual dealing with me. And it is this breach of the contractual obligation of good faith that ground this claim in punitive damages.

ROGERS’ BEHAVIOR WAS DESIGNED TO FORCE ME TO MAKE AN UNFAIR SETTLEMENT

114. Rogers regularly “upped the ante” on the financial burdens they were bringing to bear on me by exposing my credit rating to an unfavorable discrediting and by charging me 2% interest, compounded monthly (26.82% per year) in “late penalties” that alone totaled more than $200 per month (and growing).
115. Rogers sent my account for collection “treatment” 16 days prior to my invoice being due.
116. Rogers shut off my then-11 year old child’s cell phone 8 days before my invoice was due because I was not making a “promise to pay” over $14,000 on my upcoming invoice, four days before he was to get on the Toronto Subway on his own for the first time in his life.
117. Rogers repeatedly refused to honour its contractual commitment holding the consumer responsible for “undisputed” (as opposed to “total”) charges by refusing to facilitate a disaggregation of disputed from undisputed charges that would have made it remotely easy for me to keep my account in good standing.
118. Apart from the substantial late penalty Rogers levies on “unpaid” charges, Rogers would have levied a $200 Early Termination Fee (for EACH phone) on the remaining term of my wireless contract as well as the cost of one month’s notice for contract cancellation if I wanted to bring my relationship with Rogers to an end: a penalty to me of $475 in total for a parting of our ways.
119. Rogers repeatedly insisted that I owed a total of over $14,000 on the monthly invoices it sent out.
120. Rogers made an Offer of Settlement on October 14, 2005 (Exhibit X) that purported to be the “goodwill gesture” of Rogers accepting a “considerably reduced settlement of $2,000.00 (payable by [me] to Rogers)” for Rogers to “write off the balance on [my] Account” and also thereby settle this claim in Small Claims Court.
121. The options presented to me by Rogers were to eventually pay an rapidly and regularly growing bill of over $14,000.00; to immediately settle for paying $2,000.00; or to fight a legal and advocacy battle with Rogers over charges that Mr. Rogers, on behalf of Rogers Wireless, has fully acknowledged were wrongfully attributed to me; a fight that would consume extraordinary amounts of my time and energy; irretrievably impinging on time allotted to an intense research agenda laid out for my sabbatical year.
122. My choices were all grimly narrow.
123. All of these factors conjoined amount to conduct designed to force me to make an unfair settlement.

ROGERS’ PATTERN OF CONDUCT DESIGNED TO FORCE VULNERABLE CONSUMERS TO MAKE AN UNFAIR SETTLEMENT

124. The emails from the two consumers in Exhibits V and W show a pattern on Rogers part to attempt to make consumers settle for paying all or part of the total charges accumulated on their lost or stolen cell phones.
125. In the case of the second consumer (at page vi of Exhibit W) Rogers almost succeeded in getting him to pay the invoice off (to a tune of $1,100!!) in order to get Rogers off his back.
126. Both consumers contacted me and it appears that it is ONLY in virtue of this fortuitous action, prompting me to advise them to ask Rogers why a law professor’s bill was zero’d but not theirs, that they got relief.
127. In other words, it appears to take the extraordinarily fortuitous act of connecting with a law professor who happened to feel inclined to share her experiences in order to help them out that their bills were zero’d.
128. Exhibit L contains the published account of Erin Hipwell who Rogers attempted to have pay a bill for which she had no responsibility. At page iv of Exhibit L, Ms Hipwell indicates that, given that her account had been sent for collection “treatment” by Rogers, one of Rogers’ collection agents offered to cut her bill down to two months but insisted that she would have to pay “some of” this fictive bill. “It’s only fair,” he tells her, ‘and actually very reasonable. It’s not even that much money.”
129. At Exhibit Y I have attached four published articles by Ellen Roseman of the Toronto Star in which she describes a mechanism whereby Rogers consumers might be relieved of unfairly imposed pressures to settle or pay bills.
130. In one case, a Filipino immigrant confronted an almost identical situation to my own (fraudulent calls made on a lost or stolen cell phone). Rogers was insistent that the consumer pay $3,700 in fraudulently incurred phone charges. It was only after the media intervened that Rogers reduced this sum to $900. The consumer, who works 16 hour days, felt relieved that Rogers had reduced the charges from $3,700 and spent the next two years paying off a loan that he had taken out to pay the “settlement” off.
131. My bill was completely zero’d in exactly similar circumstances, indicating an arbitrary pattern of conduct; arbitrary conduct being one of the criteria for punitive damages.
132. In all of Ellen Roseman’s cases the consumer’s “debt” is reduced or eliminated only once he or she has managed to get the ear of the media.
133. Rogers consumers without Erin Hipwell’s pluck or energy or time; Rogers consumers who do not succeed in getting the ear of the media; Rogers consumers who do not manage to get a notable law professor to give them free advice – all of these leftover Rogers consumers appear to face extraordinary odds against getting Rogers off their backs.
134. Those ARE the vulnerable Rogers consumers who, under the pattern of extraordinary pressures discussed above, Rogers is forcing to make an unfair settlement.

ROGERS STANDS TO PROFIT FROM ITS ARBITRARY AND HIGH-HANDED BEHAVIOR

135. Rogers conduct, elaborated in these amended pleadings, appears to be part of a planned and deliberate strategy that regularly yields material dividends in the form of forced settlements.
136. It should be easy to compel Rogers to disclose how many of Rogers cell phones are lost or stolen on a daily basis and then fraudulently put to misuse by the thieves who misappropriate the cell phones of Rogers consumers.
137. It should be easy to compel Rogers to provide an average amount that Rogers has managed to extract from those consumers who have not had the wherewithal to liberate themselves from the contractual clause that holds them liable for the TOTAL charges on lost or stolen cell phones.
138. It would be easy to extrapolate from such disclosures the final annual tally of material dividends that Rogers reaps from the kinds of pressures that Rogers brought to bear on me and the other consumers mentioned in the evidence in this amended claim.
139. And it is entirely plausible on the evidence that I have here provided of Rogers consumers who “lucked out” that there is a far greater body of Rogers consumers who did not have access to such fortuitous resources; and it is plausible to conjecture that it was Rogers that “lucked out” on their misfortune.

OTHER FINES OR PENALTIES THAT ROGERS MIGHT FACE

140. Whiten makes clear that punitive damages are particularly called for when there is no other venue in which high-handed and arbitrary behavior would be sanctioned.
141. In the current context, there is not only the absence of regulatory constraints that discipline Rogers, Rogers has also introduced a structural limitation into their standard form contracts that appears aimed at prohibiting ALL courts from disciplining Rogers conduct.

GOVERNMENTAL AND REGULATOR OVERSIGHT

142. As Rogers elaborates in its Statement of Defence, Rogers is regulated by Industry Canada. Industry Canada has a very narrow band of control over Roger’s operations that would be relevant to consumers: Industry Canada regulates spectrum management.
143. Many consumers assume that the Canadian Radio-Television and Telecommunications Commission (CRTC), another federal agency, must regulate Wireless services. In fact the CRTC de-regulated the Wireless Industry in the mid 1990s. The explicit mandate of the CRTC under the Telecommunications Act (Exhibit Z) with respect to the wireless industry is to “foster increased reliance on market forces for the provision of telecommunications services…”. According to Denis Carmel, the head of Media Relations for the CRTC, the rare occasions in which the CRTC has acted upon the component of its mandate that is tasked to respond to the “social requirements” of users of telecommunications has been for cases of discrimination on the grounds of disability or some other equality grounds.
144. The other principle government agencies tasked to regulate the relations between Rogers and Rogers consumers are the Consumer Protection Branches of provincial governments.

RECORD OF REGULATION BY THE CONSUMER PROTECTION BRANCH OF THE ONTARIO MINISTRY OF GOVERNMENT SERVICES.

145. Compliance and Consumer Services of the Consumer Protection Branch of the Ontario Ministry of Government Services is tasked with ensuring that corporations in Ontario comply with the Ontario Consumer Protection Act.
146. I have been complaining since September of 2005 to Compliance and Consumer Services about Rogers’ arbitration clause that supposedly contractually precludes Rogers consumers from suing Rogers in court or from pursuing Rogers in a class action law suit. (See Exhibit AA).
147. A full 7 months after the 2002 OCPA came into force, and four years after Rogers became aware that the clause was considered unconscionable in Ontario once the 2002 OCPA was passed in response to a case that scandalously upheld the clause, Rogers Wireless contract in Ontario still retains the arbitration clause. (See exhibit A at clause 34). The case was Kanitz v. Rogers Cable Inc. [2002] O.J. No. 665.
148. Compliance and Consumer Services has acknowledged several times to me that the government is fully aware that the “mere” ongoing presence of Rogers arbitration clause on the contracts Rogers distributes across the province is of concern to the government. The clauses have not been enforceable, the government fully acknowledgeds, since the 2002 OCPA was proclaimed into force on July 30, 2005.
149. The government has made several claims to me over the last six months that they are intervening with Rogers to bring the corporation into conformity with the OCPA on the model of progressive compliance.
150. In mid-February, Rogers, which now owns Fido, introduced an insert in Fido consumers’ invoices indicating that Fido consumers in Ontario would now be bound by a contract that includes the problematic arbitration clause that Rogers unlawfully perpetuates on its own wireless contracts distributed daily in Ontario.(see clause 34 of Fido’s new Wireless Service Agreement, Exhibit BB)
151. It appears from the arbitration clause on Rogers and Fido’s contracts that Rogers is seeking to preclude consumers from exercising their rights to “discipline” Rogers in court by eliminating all litigation rights save the very expensive and private option of arbitration.
152. And it appears, from Exhibit AA, that the Consumer Protection Branch of the provincial ministry has intervened virtually not at all to regulate Rogers behavior in a manner that protects the rights of consumers consistently with the law (the Ontario Consumer Protection Act)

EVIDENCE OF A CORPORATE STRATEGY OF REAPING MATERIAL DIVIDENDS FROM THE EXPLOITATION OF CONSUMER VULNERABILITIES

153. It has already been pointed out by legal authorities that Rogers has reaped material dividends by a strategy of exploiting the vulnerabilities of Rogers consumers when they sign a contract that contains Rogers’ arbitration clause. George Takach, a corporate lawyer for McCarthy Tetrault, writes that “In short, Rogers’ tactic of inserting an arbitration clause has paid fairly material dividends.” (See Exhibit CC)
154. Rogers clearly is not averse in its overall corporate strategy to profiting from the gross asymmetry in bargaining power between the ordinary consumer and the clever, if not weasely, skills of Rogers Legal Department present at the signing of Rogers standard form contract.

ALTERNATIVES TO PUNITIVE DAMAGES INSUFFICIENT TO DETER ROGERS HIGH-HANDED CONDUCT

155. By Rogers’ own contractual design, the role of courts as a venue to regulate Rogers conduct has been precluded and minimized by Rogers’ arbitration clause; in those provinces where the clause is unenforceable, the role of courts is minimized by the chilling effect that the mere presence of such a clause would have on the ordinary consumer who would be completely ill-equipped to decipher what the OCPA guarantees despite what Rogers contract represents.
156. By the choices that the provincial and federal governments make – through the absence of regulatory legislation and oversight or the absence of pro-active (or indeed even simply active) consumer-centered advocacy – there are effectively no other fines or penalties (other than punitive damages) that Rogers must face to deter high-handed behavior.

PUBLIC INTEREST ENFORCER II: MY UNIQUE AND UNUSUAL POSITIONING TO ESTABLISH THAT ROGERS HAS BEHAVED ABOMINABLY

157. It is also precisely because of the chilling effect of the legalese of that arbitration clause on the vast majority of Rogers consumers who do not have my access, as a law professor, to the resource of free legal understanding that I am also uniquely positioned in this case to be a public interest enforcer, as per Whiten.
158. The vast majority of ordinary consumers would not be capable of tearing through the legalese on Rogers’ standard form contracts without paying prohibitive legal fees. It is reasonable to speculate that the vast majority of ordinary consumers would be deterred by the fact that they apparently signed away their litigation rights when they entered into an agreement to pay regular amounts of money to Rogers Wireless in exchange for wireless services.
159. Virtually no one else but a plaintiff with access to free legal understanding would be “rationally expected to be capable of establishing” that Rogers’ contract is unenforceable. The vast majority of ordinary consumers would need to spend prohibitive sums of money on legal fees to establish with sufficient certainty the hollowness and vulnerability of Rogers’ Wireless Service Agreement.

THE COST OF DOING BUSINESS

160. For Rogers to simply be compelled to pay my compensatory damages on this claim, or for Rogers to consider that a “goodwill gesture” of $5,000 is sufficient to address all of the damage claims that a plaintiff with front page coverage in the national media might submit appears to be a very minimal calculation on Rogers’ part of the cost of doing business.
161. Whiten makes clear that punitive damages, to be meaningful, “must sting”; punitive damages “must not be perceived as a mere licence fee or as a cost of doing business.”
162. Both courts and legislatures in recent years,” the court goes on in Whiten, “have increased the amount of fines for companies which act irresponsibly or contrary to the public interest. This trend reflects an acknowledgement that "larger fines are needed to deter and punish companies for socially unacceptable behaviour"
163. For all of these reasons, penalties other than punitive damages are inadequate to achieve deterrence in the case of Rogers’ high-handed, arbitrary, and reprehensible behavior.

PUNITIVE DAMAGES: QUANTUM

164. Whiten makes clear that there is not bright line standard for the quantum of punitive damages; although there are guidelines that should be pursued in a principled manner.
165. The principles that a court is asked to weigh in making an award for punitive damages include an amount that is proportionate to the blameworthiness of the defendant’s conduct; proportionate to the degree of vulnerability of the plaintiff; proportionate to the harm or potential harm directed specifically at the plaintiff; proportionate to the need for deterrence; proportionate to the other fines and penalties to which the defendants is exposed; and proportionate to the advantage wrongfully gained by a defendant from the misconduct.
166. Whiten makes clear that a strict ratio between claimed compensatory damages and punitive damages is not relevant as such a ratio “puts the focus on the plaintiff’s loss rather than where it should be, on the defendant’s misconduct.”
167. Whiten is clear that a such a ratio would be inadequate in cases where outrageous misconduct fortuitously (though fortunately) resulted in small financial loss.
168. The Supreme Court in Whiten clearly eschews a formulaic approach to calculating punitive damages.
169. The Supreme Court is also clear that evidence that the plaintiff’s experience is evidence of a more global corporate strategy as opposed to an isolated, mishandled file that ran amok will enhance the case for punitive damages. Such a case has been made out on the evidence laid out in this amended claim.

QUANTUM REQUESTED IN THIS CASE

170. In light of the principles that govern punitive damages set out in the Whiten case, I am asking in this amended pleading for whatever sum in punitive damages that, when conjoined with the final amounts either settled or awarded for compensatory costs, would take the total damages granted to $10,000.
171. In other words, if compensatory damages are settled or awarded at $9,867.10, as per my original claim of September 19, 2005, then I am asking for punitive damages of $132.90. If compensatory damages are settled or awarded at $1.00, I am asking for punitive damages of $9,999.00.

A LARGE WHACK

172. According to Whiten, the theory that drives punitive damages is that “it takes a large whack to wake up a wealthy and powerful defendant to its responsibilities”.
173. This is an action in Small Claims Court, limited by the rules of this court to damages under $10,000.
174. Although Whiten makes clear that the defendant’s financial power may well be relevant to a claim for punitive damages, and although the quantum of punitive damages should also be proportionate to the profits that the defendant stands to gain from its misconduct, a punitive award for $10,000 is barely a tap compared to the whack Rogers would expose itself to if this case had been pled in a court with a ceiling above $10,000 or in a class action law suit.
175. I respectfully submit that I am being gentle with Rogers in asking for a quantum of punitive damages that brings the total in this action to $10,000. Such a punishment, in all of the circumstances, would be very mild indeed.

COSTS

176. I respectfully and additionally ask for the recovery of my costs on this cause of action.

© March, 2006, Susan G. Drummond - Do not circulate or cite, in whole or in part, without permission.