1) The payment to the Plaintiff by Rogers Group of Companies of $5,309.60 by cheque no. 6100000510 on January 25, 2006 was not an Offer of Settlement for the Action but a goodwill gesture and a payment for damages outside of the scope of the Action’s claim; the certification of that cheque on February 9, 2006 by the Plaintiff was not an acceptance of a settlement offer; and the foregoing transactions do not constitute a Settlement Agreement.

There isn't really anything tricky here. $5,301.00 would have closed the dispute in Small Claims Court, and there's nothing in this paragraph that holds Rogers to paying me anything else in any other venue.

This paragraph is just a matter of getting the wording right. Nothing legal hangs on it; Just the truth.

Lost and Stolen Cell Phones

A little bit more hangs on the next paragraph:

2) Ted Rogers, President and CEO of Rogers Communications Inc (the parent corporation of Rogers Wireless Inc), has publicly – and with sound reason consistent with the law – acknowledged that the charges incurred on the Plaintiff’s cell phone between July 26-August 16, 2005, made without authorization by someone other than and unknown to the wireless account holder, were wrongfully attributed by Rogers Wireless Inc to the Plaintiff.

Ted Rogers offered me a very deep and broad and public apology for the way that his corporation had treated me. To my mind, when a human being sincerely apologizes for his or her behaviour, implicit in that apology is a recognition that they've done wrong; and also implicit is a commitment to refrain from doing the very thing which necessitated the apology again - to the person to whom one apologizes, or to anyone else similarly situated.

I've been hearing from people that Rogers has been trying to stick it to Rogers consumers unendowed with my media baggage. When I would tell them to ask Rogers why it would zero the bill of a law prof but not other ordinary consumers, they managed to get their bills miraculously zero'd.

The assistant to the President of Rogers Wireless, Lisa Brussa-Toi, even told one consumer who called in to say "How come a law prof and not me?" that Rogers had changed its policy as a result of my case.

Is that believable? How come Rogers still has the following clause on its Wireless Service Agreement if things have changed, a new wind stirred:

Lost or Stolen Equipment

19. Please immediately notify us if your device or SIM card is lost, stolen or destroyed. You will need to replace your device or SIM card and you will be responsible to pay us for all charges up to the time you notify us.

It's not only that, as everyone knows, the credit card companies call you AS SOON as there's the slightest whisper of unusual activity going down on your account, Harry Gefen's scoop unearthed the fact that Rogers has the computer technology to similarly detect atypical call patterns; and Rogers also has a fraud protocol that involves calling the consumer if there is unusual activity to ensure the consumer with the atypical call pattern is actually making the call.

If Ted Rogers' MEANT his apology, then wouldn't Rogers' contract and Rogers' practices be consistent with it? Where's the humiliation in acknowledging that Ted Rogers MEANT his apology? That Ted Rogers knows that the corporation bearing his name has the technology at its disposal to stymie suspicious atypical calls?

Where's the humiliation in acknowledging that Ted Rogers' apology was consistent with the law and with sound reason?

Isn't the opposite inference a wee bit more humiliating?

Where's the humiliation in acknowledging that Rogers is not the kind of sleazy organization that treats you one way if you're a law professor, and another if you're a store clerk?

Where's the humiliation in affirming that Rogers is not the kind of corporation that will let you out of supposed contractual obligations if you get your story into the national media but not if you flounder away on your lonesome?

Where, exactly, is the humiliation in Rogers affirming that it will deal with its consumers in good faith?

Registering a Dispute

The first clause of Rogers Wireless Service Agreement says that, in signing the contract, you, the consumer, agree to pay Rogers for undisputed charges appearing on your account by the specified date.

Well and good. Sounds reasonable.

But what if your charges are NOT "undisputed". What if you "dispute" a charge.

Although Rogers corporate head offices in Toronto sprawl out over close to the acreage covered by Vatican City, Rogers is not the pope. Both Ted and Rogers are not infallible. Even Ted Rogers has admitted that "mistakes were made."

Yet Rogers doesn't tell you on the contract HOW to bring to the corporation's attention that charges are disputed.

Surely this is an oversight. Surely Rogers is not trying to occlude from the ordinary consumer how they should let the corporation know that a mistake has been made.

The third paragraph of my proposed Agreed Statement of Facts just brings things out of the shadows:

3. The Plaintiff had fully complied with the mechanism the corporation provides for registering a dispute over charges when she disputed them with the Customer Service Department of Rogers Wireless Inc.

I was not set on this formulation. I was prepared to have Rogers modify that paragraph and correct me as to the proper mechanism for consumers to formally register their disputes with Rogers. But Rogers seemed to have a wee bit of discomfort (actually a bit more than a wee bit - Rogers felt "humiliated") in the very idea that consumers should be aware of how to let Rogers know that, hang on a sec, there seems to be a little problem here.

Surely it's not a corporate secret, the mechanism for letting Rogers know that a mistake has been made.

Is it really humiliating for Rogers to disclose to its consumers how to dispute a charge the corporation has wrongfully attributed to the consumer?

 

Rogers is Not the Judge, Jury, and Executioner

The final paragraph appears to reify what must be common sense for a lot of people:

Rogers shouldn't be able to wreck your credit rating and ruin your life on its own say so.

If you have a dispute with Rogers, Rogers shouldn't be able to unilaterally determine that Rogers is in the right, you're in the wrong, and tough noogies if you don't like it.

Here's the final paragraph of what I proposed as agreed statement of fact:

4. The resolution of formal consumer disputes with the corporation (i.e. those disputes which comply with the mechanism described in paragraph 3) ultimately requires judicial resolution should all other attempts to resolve the dispute prove unsuccessful; therefore the corporation was in error when it sent the disputed charges to Rogers’ Accounts Receivable Department for collection; and in error when it sent reports to the credit bureaus indicating that the Plaintiff’s account was overdue when it was, in fact, and in accordance with the law, in dispute; and in error when it charged a late penalty on charges that were formally in dispute.

And Rogers disagreed with this statement. Rogers finds this to be a humiliating admission.

What are the implications of Rogers rejection of this statement?

Rogers, in refusing to agree to this statement, is essentially saying that even if you dispute charges, even if you've laboured to resolve the dispute but to no avail, Rogers can decide as between the two of you that you really, despite your protestations, deserve the full Rogers "treatment"; If you and Rogers can't agree who's in the right in the dispute, Rogers will have the final say.

"We'll decide whether your credit rating is safe or not," Rogers is saying. "We'll decide that you deserve to have a collection agency hound you."

Why does a big corporation get to decide, unilaterally, to wreck your credit rating when there's an unresolved dispute between you? Why was I left with the onerous and months long task of clearing my credit rating after Rogers soiled it?

With a bare minimum of aspiration for one's future economic security, the prospect of taking a hit to one's credit rating can be an unsettling proposition. The potential damages of the latter can exceed the actual amount claimed as a bad debt.

Furthermore (and perhaps MOST to the point) it wouldn't be at all unusual to feel some pressure to pay off the "supposed bad debt", even if it isn't properly attributed, rather than suffer long term damage to one's credit rating.

The reasoning behind this use of the credit reporting bureaus as agents of debt enforcement kind of works the way that other legal orders work - such as the mafia. Even if the so called debt could not be collected in a court of law, you might be inclined to consider your options in a completely different light once you've had a little visit from one of Tony Soprano's buddies.

When Rogers reserves to itself the right to send a negative (though disputed) report to the credit reporting bureau - refuses to acknowledge that unresolved disputes require third party, judicial resolution - this effectively (through the device of threatened damage to credit ratings) amounts to a non-judicial seizure of assets.

I can imagine scenarios where Rogers is simply and unequivocally in the wrong - flat out in the wrong - and yet Rogers reserves to itself the right to put consumers on the defensive, to leave them scrambling to correct credit reporting errors, to fend off collection agencies; to force consumers to take the initiative and spend hours on hold with a dizzying and stymieing array of customer service reps from a range of Rogers departments, compelling consumers to ensure that they have exhausted every possible way of communicating that an error has been made; to require them to pitch their story to the media as a way to get the corporation to back off when nothing else seems to work.

Rogers finds it humiliating to acknowledge that, in the event of an unresolved dispute, Rogers needs to turn to a judge, to a court of law, to present their case?

Rogers finds it humiliating to acknowledge that it does not have the power, by law, to unilaterally decide disputes in its favour?

A Costly Disagreement over the Facts

What an intriguing admission that Rogers would rather fight me in Small Claims Court, at a cost of $10,000 a day in legal fees, rather than pay the difference between a $5,000 offer and a $5,301 counter-offer attached to an ostensibly uncontroversial statement of facts.

A further conjecture regarding what would stay the hand of the President of Rogers Wireless Inc from signing my Agreed Statement of Facts is not the humiliation of agreeing that Rogers should not simultaneously be party, judge and executioner and that disputes ultimately need to go to a third party for resolution. It is the bottom line implication for so signing: the marginal dividends that might propsectively be lost if the President of Rogers Wireless were to agree that judges are required to resolved otherwise unresolved disputes between Rogers and its consumers.

That small phrase "judicial resolution" seems to stick in Rogers maw for a whole other set of reasons than those (like humiliation) that we associate with physical persons. The hesitation that stays the hand of the President of Rogers Wireless comes not from some sense of moral or personal indignation; it comes from the being of Rogers: The Legal Person.