Acetabula et Calculi; Otherwise known as the old Cups and Balls Routine
Rogers asked my permission to adjourn our September 11, 2006 trial date in order that Ted Rogers' lawyer, Donald Plumley, QC, could quash my summons to witness of Ted Rogers. Although I had told Mr. Plumley in June that I would make myself available for motion dates throughout August, and although Mr. Plumley, by not availing himself of this offer, left things to the last minute so that he needed to adjourn the trial in order to prepare his case, I granted consent to adjourn. Mr. Plumley wrote to me that he had reserved the motion date of October 26, 2006 for his motion to quash.
Then, on October 4, 2006, I got a letter from Joseph C. D'Angelo, the head of Lang Michener's commercial litigation group, presenting me with an offer to settle my Small Claims Court action. If I didn't accept that offer, then Joe informed me that he was instructed to use the October 26, 2006 motion date to get a summary dismissal of my claim.
Very nifty. Rogers switched its motion to quash for a motion for summary judgment.
Before I dissect Rogers' October 4, 2006 offer to settle, I should back track and cover a few preliminary matters.
Chronology of Offers to Make Me Go Away
Recollect that Rogers sent me an offer to settle my Small Claims Court action on October 14, 2005. In that offer, Rogers suggested that I should pay Rogers Wireless $2,000 to make my Small Claims Court action go away, i.e., Rogers shacked up a fictional debt of over $14,000 and then offered to give me just over a $12,000 reduction on this fictional debt. This was Rogers in a compromising mood, offering to give me something.
I responded by reminding Rogers that I had asked for a series of documents from the corporation which they had not provided to me and that I wasn't in a position to negotiate without those documents.
Then on December 17, 2005, the Globe and Mail did a front page story about scandalous disclosures that Harry Gefen uncovered regarding Ted Rogers' cell phone being cloned by a group linked with Hezbollah.
Ted Rogers called me that day and apologized into my answering machine. And in a phone conversation with Harry Gefen later that evening, he offered to zero my fictional $14,000 bill, and he offered to pay for the damages resulting from the four-month-long debacle related to my cell phone.
On January 25, 2006, Ted Rogers sent me a cheque for $5,309.60 that he characterized as a "goodwill payment" and reimbursement for "out-of-pocket expenses". I certified that cheque on February 9, 2006 after Ted cancelled our appointment for tea.
According to Angus, who filed Rogers' amended pleadings on August 14, 2006, Ted Rogers' phone call in which he offered to pay my damages was an opening ambit in an "oral contract". (Lawyers who are reading this can begin to snicker now). When I certified that January 25, 2006 cheque, my action was an acceptance of that offer. And both acts (the oral offer and the certification of the cheque) constituted a "Settlement Agreement". Because we had a "binding" settlement agreement, my entire claim, Angus plead, was barred; that is, I had no legal right to still be in court in the first place.
That was Rogers argument in August of 2006: Rogers and I had an "oral" settlement agreement and Rogers owed me not a penny more.
So, by August, 2006, we had gone from me owing Rogers over $14,000, to an offer to settle my Small Claims Court action of $10,000 against Rogers if I paid Rogers $2,000, to Ted Rogers paying me $5,309.60 as part of a supposed "oral" agreement by which, Rogers claimed, my Small Claims Court action was settled - well my part was not oral, mine part of the "settlement agreement" was an action - certification of the cheque.
By early October of 2006, Rogers changed its mind, moved by some intuition that my Small Claims Court action might not indeed be barred by an oral "settlement agreement"; maybe Rogers should throw another whack of money at it.
Rogers Agrees that it should be Punished for its behaviour
In Rogers' October 4, 2006 offer to settle, Rogers declared that they wanted to pay off my TOTAL claim (i.e., $10,000 for both compensatory and punitive damages).
Of course, this in and of itself is remarkable because by declaring its wish to pay off my TOTAL claim, Rogers appears to be saying several things implicitly - much in the same way that Michael Jackson's reported $20 million out of court settlement for civil damages resulting from sexual assault seems to be telling us something.
Off the top, maybe it should be said that by paying a reported $20 million settlement, Michael Jackson could be saying: "I'm innocent but am just so harrassed by all of the legal costs and negative publicity of this trial that I'm willing to pay the entire astronomical amount claimed to get you out of my hair."
Yes. That's possible.
Analogously, it is also theoretically possible that Rogers is prepared to pay my full $10,000 claim because they want to stop bleeding legal fees and because they want to avoid further negative publicity from this case.
There are reasons to be sceptical about those hypotheses. In the first event, Rogers just spent the equivalent of my claim ($10,000) on a motion that they lost (fighting me over a three hundred dollar difference between what I agreed to take and what they agreed to pay).
Let me just point out some other differences between Michael Jackson's plaintiif and Rogers' plaintiff:
Michael Jackson's plaintiff has signed a confidentiality clause on the settlement he reached with Mr. Jackson. Rogers seems to have a well-cultivated intuition that I'm not the kind of plaintiff who is going to agree to a confidentiality clause on any settlement agreement that I sign with Rogers.
Rogers keeps alluding to this web site in their pleadings and factums and affidavits, and Rogers' lawyer wanted the motion proceedings to be "off the record" because, he complained to the judge, I have a web site and I'm not afraid to use it.
Rogers appears to have, by now, a well-informed belief that, as this case unfolds, no one is going to have to go around talking about a "reported" $10 K settlement. Folks can refer to it, flat out, as a "$10 K settlement.
So, if the likelihood is high that Michael Jackson's spin on his "reported $20 million pay-out" is not going to fly for Rogers (that Rogers is innocent and payment of my entire claim should not be read as an admission of fault), what else might be inferred from Rogers' express desire to pay my FULL $10,000 claim?
First of all, full payment (and not a penny less) means that Rogers concedes that it is liable for the damages that I have claimed and that I have, in no way, contributed to those damages.
Second of all, Rogers is conceding, once again, that its contract is not worth the paper it is written on. Rogers' Wireless Service Agreement has the following astonishingly comprehensive waiver of liability on its contract:
Limits on Rogers’ Liability Generally
26. Except as may be provided in Section 27, below, we will not be liable to you or anyone else... for:
- any lost, stolen or damaged Cards or equipment;
...
- any damages, including loss of profit, loss of earnings, financial loss, loss of business opportunities, personal injury, death 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 or from the use of our facilities by other telecommunications carriers;
...
These limits apply to any act or omission of us, our employees, or agents, which would otherwise be a cause of action in contract, tort or any other doctrine of law.
Rogers had claimed, at paragraph 13 of its August, 2006 pleadings, that because I had signed the contract, I had signed away my right to recover damages in breach of contract, or any other doctrine of law (such as breach of a contractual duty of good faith, or breach of a duty of care) and that, in particular, I couldn't recover damages such as loss of earnings for the several days in September, 2005 that I had to drive my son back and forth from school.
But here was Rogers saying: "Oh all right. We'll give you just over $9,000 for driving your son to and from school for 5 days."
Soccer moms of the world, rejoice! For all of those Rogers consumers who have had to suspend whatever was going on in their lives to resolve a dispute with Rogers - tracking down credit reports, contesting erroneous reports, calling multiple departments within Rogers, writing endless letters, turning up at corporate head offices with documentation in hand only to find there's no reception at Rogers and no one to speak to ...- by compensating me for the time I lost due to Rogers' breach of contract, Rogers is saying our time is worth something too.
The other intriguing thing that Rogers is saying, by offering to pay me my FULL claim, is that: "Yes indeed. You're right. In this case, punitive damages are warranted and we agree to pay them, up to the total amount that you've claimed."
By paying off a claim for punitive damages, Rogers is implicitly agreeing that the corporation has behaved in a manner that was high-handed, egregious, reprehensible, and lacking in good faith; is implicitly agreeing that the corporation accepts, in voluntarily submitting to have it knuckles rapped, that my case should serve to deter it from behaving in such a malicious manner to other Rogers consumers.
That's the message that an order (or a settled claim) for punitive damages broadcasts.
Rogers' offer further recognizes that I've had to pay a few motion and filing fees that set me back a bit. Rogers offered to pay for my court costs (which, in Small Claims Court cannot exceed $300), and they also said they'd throw in a wee bit more than $300 in costs (say about $9.60 extra).
Great. So far so good. Rogers is fully acknowledging that, despite their August, 2006 amended pleadings, the "oral contract" between Ted Rogers and me was not a settlement agreement that barred all further legal disputes. The out-of-court settlement compromise looked like this: Rogers avoids a public trial, in which its business practices would be aired, by Rogers implicitly agreeing, in paying my total claim, that punitive damages are warranted. The work of a non-profit organization, the Public Interest Advocacy Centre, dedicated to protecting consumers from abusive corporate pratices, is facilitated by a donation out of the net proceeds from the case. My court costs are paid for. Rogers is even going to throw in a bit more than the maximum in costs allowed in Small Claims Court: $300. That should take the total payment to just over $10,300.00. Right?
The only problem with Rogers' offer to settle was that Rogers claimed to be paying the TOTAL claim off (as they expressly say they want to do) by conjoining Ted Rogers' January, 2006 "goodwill payment" with another $5,000 they would pay into court.
My Counter-Offer
Joe D'Angelo's October 4, 2006 letter said that I had until October 12, 2006 to accept Rogers' offer. If I hadn't accepted it at that point, then Rogers was going to move for summary judgment on October 26, 2006.
I submitted a counter-offer to Rogers on October 12, 2006. In my counter-offer, I agreed to receive a payment of $5,301 in settlement of my Small Claims Court action for $10,000. Because Rogers had agreed, in their letter, to pay $5,000 for damages and "just over" $300 in court costs (which are ordinarily set at no higher than $300), I took them at their word and went just over $5,300, by one dollar.
But I had a very small number of non-monetary conditions attached to my counter-offer:
Consistent with my committment on this web site (a committment that appears to be irksome to Rogers) I wanted Rogers to make out a certified cheque for $5,000 to the Public Interest Advocacy Centre and delivery it to my house on October 19, 2006. The remaining sum for costs ($301.00) could be made out to me. And I wanted the President of Rogers Wireless to agree to what I thought should be a simple and uncontroversial statement of the facts in our dispute.
So, in other words, I offered to accept HALF of what I was claiming in Small Claims Court in order to resolve my legal dispute with Rogers Wireless.
Rogers didn't agree to my counter-offer to settle for half of what I was claiming. Rogers decided it would rather go to court to argue that, by paying an additional $5,000, it had paid the full $10,309.60 rather than accept my offer to accept $5,301.00 out of court.
The monetary cost of non-monetary matters
So, on October 19, 2006, instead of receiving in the mail two cheques totalling $5,301, I got a rather large factum, motion record, and authorities brief that Joe D'Angelo, the head of Rogers commercial litigation group, had clearly spent a great deal of time and thought drafting.
The factum is 6 pages long. Joe has attached a 6 page affidavit from Jan Innes, Rogers VP Corporate Communications, along with two other exhibits - one of which is Rogers' October 4, 2006 settlement offer. Two full pages of statutory rules are cited. And there is a separate book, 31 pages long, of supporting case law.
I suspect it has been a long time indeed that a Small Claims Court judge has seen such an elegant factum, supported by a diverse range of case law and statute, nicely bound and with the appropriate use of affidavit testimony. Spend a day in Small Claims Court and you'll quickly conclude that those judges are far more used to seeing barely legible, hastily scribbled arguments, not atypically on the wrong form altogether, with nary a wit of supporting law.
The measured thoughts of a partner at Lang Michener, LLP with 17 years of practice behind him - and behind him a national law firm with a yowza profile that has played "a major role in shaping Canada’s economic and political institutions" - must flag for a Small Claims Court judge that this is going to be a change of pace from his or her regular routine:
This is no ordinary Small Claims Court action. This is a Small Claims Court action on steroids.
I mention the time and thought that went into Joe's factum and motion materials because I've been told by legal practitioners who have glanced over them over that the production of those documents alone would have cost Rogers over $5,000 in legal fees.
And that doesn't include the legal costs of sending a Lang Michener partner, with 17 years of practice, to Small Claims Court to argue the case.
The monetary difference between our offers was $308.60.
The agreed statement of facts in my counter-offer must have struck Rogers as controversial enough to throw a big bundle of money into an argument for a summary judgment that the court should let Rogers off with paying me $5,000.
Rogers served me on October 19, 2006 with their costly motion record.
I served Rogers with my responding factum and affidavit on October 24, 2006.
Motions for Summary Judgement: Cathartic Buzzes Prohibited
Technically, if Party B (the Defendant) pays the FULL monetary claim into court, then that brings the dispute to an end. Party B is acknowledging liability and agreeing with the damage assessment. If Party A (the Plaintiff) continues to insist on fighting all the way through a trial, then Party B, who had made FULL payment into court can say: "Hold on now, I shouldn't have to go through the time and expense of an unnecessary trial: I've fully admitted liability and paid off the entire claim. Now I'm being gratuitously punished by being dragged through a trial - and furthermore, the court's time is being squandered just for the sake of giving Party A a cathartic buzz out of having a judge confirm for all to hear that I had, indeed, behaved like a thug. I've already admitted I was a thug. What more does this guy want from me? And why is the taxpayer paying for a trial to exact it?"
In that case, the court allows parties to argue: "There's no genuine issue here for trial. Liability is admitted. Damages are fully paid out. There's nothing left for a judge to do but waste the court's time."
That argument in court - that there are no genuine issues for trial - is called a motion for summary judgment.