Summonsing Ted Rogers

Table of Contents

 

Parsing "Sorry"Back to Top

 

On June 8, 2006, I argued a motion to strike paragraph 4 from Rogers Statement of Defence.

 

Against my claim that Rogers Wireless owed me compensatory damages for having shut my son’s cell phone off, Rogers was arguing way back on October 4, 2005, when they filed their Statement of Defence, that I contributed to my damages by failing to call Rogers as soon as I became aware that my phone was stolen.

 

This was WAY before Ted Rogers intervened to set the record straight:

 

Ted Rogers left a message on my home phone on December 17, 2005 that effectively apologized for the sinking of the Titanic.

 

How could Rogers legal team, representing a corporation directed by Ted Rogers, be complaining after December 17, 2005 that I was contributorily responsible for my damages when the CEO of Rogers’ Wireless himself clearly said it was inexcusable to impute responsibility to me?

 

Hadn’t Mr. Rogers apologized for that?

 

Rogers legal team and the CEO of Rogers Communications Group appeared to be having a little internal communication problem. In my opinion, the only legal issue left in the Small Claims Court action was damages. Fault had already been FULLY admitted by Ted Rogers’ apology.

 

Surely Rogers Wireless Inc was not going to argue something that put Mr. Rogers’ apology to shame, revealing it as a sham?

 

Part of me had a perverse interest in hearing Mr. Rogers go back on the public record and say that, um, well, he didn’t really apologize for everything. I suppose that it’s the same kind of fascination that drives the American interest in how Bill Clinton defines sex.

 

“For lord’s sake!" I heard my better self say. "Let the guy get on with his job.”

 

Rather than torment the man, I thought it would save us all a lot of unnecessary travail at the trial if we narrowed the issues down to the only really relevant legal ones: damages and quantum of damages. I sought a motion to strike paragraph 4 from Rogers' Statement of Defence.

 

Rogers Wireless Inc decided to fight me on that one. And they won.

 

So now I’m back to summonsing Mr. Rogers to go on the court record (and the public record) and splice and dice his apology.

Splicing and DicingBack to Top

Here's how the Motions Judge tried to splice and dice Mr. Rogers' apology before he gave up:

After I raised the arguments in my June 8, 2006 motion and affidavit, the motion judge speculated:

 

“Mr. Rogers was apologizing for the damage that occurred to his corporation as a result of the Globe and Mail article.”

 

To which I responded, “You mean Mr. Rogers was apologizing to ME for damage that was done to his corporation?”

 

To which the judge responded, “Perhaps he was apologizing for the fact that the Globe and Mail published the article.”

 

To which I responded, “You mean Mr. Rogers was apologizing to ME for the actions of the Globe and Mail?”

 

To which he responded, “It is not really possible to determine exactly what Mr. Rogers was apologizing for in his absence, but clearly he has instructed counsel in this case to argue that he was not apologizing for paragraph 4 or else counsel for Rogers Wireless would not be in the courtroom today arguing that they intend to hold you liable for the total charges accruing on your lost or stolen phone until you reported it missing. Rogers is entitled to raise whatever defence they wish, however implausible it might be. Motion denied.”

 

A Michael Moore MomentBack to Top

 

As it happens, a CBC television show is intending to produce a documentary about my debacle with Rogers.

 

The producer for that show was in the Small Claims Courtroom with me on June 8 as I argued my case for narrowing the issues. When the motion, with its affidavit was denied, I told her that I then felt compelled to summons Ted Rogers to testify.

 

Harry Gefen, the CBC producer, and I discussed what appeared to be the biggest impediment to this quest to uncover what Mr. Rogers really apologized for: a Summons to Witness has to be served personally on the individual called to testify or else it is not enforceable. By personally, the rules on summonsing don’t mean that I, the plaintiff, have to be the human being that puts the Summons to Witness form in the hand of the witness. But Ted Rogers, the living breathing human being, would have to receive the summons directly into his hands.

 

There is no reception at Rogers’ Corporate Head Offices. Any attempt by an ordinary consumer to obtain access to any office beyond the main floor lobby would result in the swift intervention of the private security services that operate where other corporations have a reception. Process servers are also denied access to such elevated offices.

 

As it happens, I have had, since the beginning of my ordeal with Rogers, several Torontonians spontaneously tell me about where to locate the barbershop where Mr. Rogers regularly gets his hair cut, or where to find the spa that Mr. Rogers visits every now and again. It’s not difficult to locate Mr. Rogers’ home in Toronto.

 

For a moment, Harry and I and the CBC producer entertained images of tracking Mr. Rogers down with a camera crew into his private haunts, a la Michael Moore. 

 

After our brief moment of levity fancying ourselves as the stars in a Michael Moore production had passed, we were confronted by several down to earth reasons that we didn’t cherish the thought of haunting Mr. Rogers in this way.

 

The Dignity of Implicated Human Beings Back to Top

 

First of all, though within the strict limits of the law, making such a spectacle of service would be assault upon the dignity of Mr. Rogers, the human being, and would intrude offensively into his private sphere.

 

Second of all, pursuing such desperate measures would be an endeavour below our own sense of dignity.

 

Third of all, neither Harry nor I had the time to squander on such an undertaking, nor the money to hire on a process server to crouch and wait, day after day, in our stead.

 

Harry suggested that I send Mr. Rogers a letter inviting him to specify the time and place that he found most congenial for service. I couriered two such letters to the 10th floor of Rogers’ Corporate Head Offices in Toronto.

 

Substituted ServiceBack to Top

 

By the time I left Canada to return again to my research agenda, I had all but given up on my quest to serve Mr. Rogers with a summons to witness in my Small Claims Court action. I hadn’t gotten a response.

 

But then, against all odds, in my absence Harry received a letter from Donald Plumley, QC, a partner at Lang Michener, LLP on June 19, 2006. Mr. Plumley indicated that he was acting on behalf of Mr. Rogers and was in receipt of my two letters.

 

Mr. Plumley, QC informed me that: “we consider it to be unusual and inappropriate” to summons Mr. Rogers to testify in Small Claims Court and informed me that if I was determined, nevertheless, to summons Mr. Rogers then I could do so through Mr. Plumely’s offices and I should be aware that Mr. Plumley would move immediately to quash my summons.

 

Surrounded as I was by the second Israel-Lebanese War that was erupting all around me, I had shelved Rogers and Me into a very dark drawer in my mind and all but given up on summonsing Mr. Rogers to court.

 

I was heartened, then, by the fortuity of Mr. Rogers and Mr. Plumely having opened up this avenue for service.

 

Still cautious after a previous encounter with Lang Michener, LLP in which the firm appeared to be poised to hold me to the finest grained letter of the law, I sent Mr. Plumley a letter asking him to confirm in writing that I could serve the otherwise completely inaccessible Directing Mind of Rogers Communications Group Incorporated through the Bay Street offices of Lang Michener, LLP.

 

With this confirmation letter in hand, I sent Mr. Rogers his summons to witness at his specified place of service and attached a letter, explaining to Mr. Plumley why, in fact, I thought my summons of Mr. Rogers was not only completely appropriate, but also wholly relevant in law.

 

Letter to Donald Plumley, QCBack to Top

 

Donald N. Plumley, QC

Lang Michener, LLP

181 Bay Street, Suite 2500

Box 747

Toronto, Ontario

M5J 2T7

 

Dear Mr. Plumley,                                                                         June 28, 2006

 


I received your letter indicating that you have been authorized to accept service of my Summons to Witness of Mr. Rogers. I appreciate both you and Mr. Rogers facilitating service by means of your offices.

 

Please find attached a Summons to Witness for Edward (“Ted”) Rogers for the Small Claims Court action of Susan G. Drummond v. Rogers Wireless Inc. (SC-05-24969-00) (hereinafter Drummond v. Rogers).

 

Having reviewed your arguments for your belief that Mr. Rogers’ testimony is not legally relevant or called for in this case, I’d like to present to you my arguments to the contrary.  It occurs to me that once you and Mr. Rogers have reviewed them, you might want to reconsider whether a motion to quash my summons is the most appropriate course of action.

 

On October 4, 2005, Rogers Wireless Inc. filed a Statement of Defence to my Small Claims Court action of September 19, 2005. As you must know, on June 8, 2006 I argued a Motion to strike from the record paragraph 4 of this Statement of Defence. My motion was not granted. The argument that I presented in court was the following:

 
  1. At page 7 of Exhibit 1 of the Affidavit to my Motion to strike, third paragraph, Peter Cheney, in his December 17, 2005 article in the Globe and Mail, excerpted verbatim paragraph 4 of Rogers’ Statement of Defence. The passage in the Globe reads as follows:
 

2. In summary, Peter Cheney’s article articulates clearly the position that Rogers Wireless had persistently adopted with me right up until December 17, 2005; and that position is exactly the one that remains reproduced at paragraph 4 of Rogers Wireless Inc.’s Statement of Defence in Drummond v. Rogers.

3. In response to that Globe and Mail article, Mr. Rogers called me on my cell phone and, when we didn’t have a moment to talk, he called me on my home phone and left a message within hours of the article’s appearance on newsstands across Canada. In that phone message, Mr. Rogers stated the following:

“It’s Ted Rogers. I’m going to try and get you on your cellular phone. If I am not able to do that, I’ll leave a message here, and the message is really pretty simple: I knew nothing of this issue that’s reported in the Globe and Mail until I read it. That’s the first. That’s no excuse. I’m accountable. Second, I deeply apologize on behalf of the company. There’s no excuse for it, and without reservation, I give you my apology. Third all the amounts will be written off. And fourth, you will have some costs in this. You paid to go to a conference, and you had other costs. If you will send them to my attention I will pay them immediately. And I apologize again and I will try and get you on your cellular phone.”

4. I believe it is clear from the conjunction of these two artifacts that Mr. Rogers acknowledged that he had read Peter Cheney’s Globe and Mail article; therefore that he read Peter Cheney’s verbatim citation from paragraph 4 of Rogers Wireless Inc.’s Statement of Defence; and therefore that he was fully apprised of the position that Rogers Wireless Inc. had been persistently adopting with me right up until the very moment that Peter Cheney’s article was issued. It is therefore clear to me that Mr. Rogers, in his apology cited above, was apologizing for (amongst other things) the very position that his corporation had adopted (and continues to maintain) in the Small Claims Court case Drummond v. Rogers.

 

5. It is further clear to me in the above apology that Mr. Rogers lifted the corporate veil and, with respect to my negative experiences with Rogers Wireless Inc., assumed personal responsibility and liability for the actions of the corporation that bears his family name.

6. In my motion of June 8, 2006, I indicated that I was moving to strike paragraph 4 to narrow the issues and reduce the body of evidence that would need to be presented at the September 11 trial; or to clarify exactly what kind of evidence and testimony I would need to produce to meet my case. It had seemed evident to me that I would no longer be required to argue paragraph 4 of Rogers Wireless Inc.’s Statement of Defence.

7. After I raised these arguments in my June 8, 2006 motion, the judge speculated (and I’ve asked Harry Gefen to acquire the transcripts to certify my memory):

“Mr. Rogers was apologizing for the damage that occurred to his corporation as a result of the Globe and Mail article.”

To which I responded, “You mean Mr. Rogers was apologizing to ME for damage that was done to his corporation?”

To which the judge responded, “Perhaps he was apologizing for the fact that the Globe and Mail published the article.”

To which I responded, “You mean Mr. Rogers was apologizing to ME for the actions of the Globe and Mail?”

To which he responded, “It is not really possible to determine exactly what Mr. Rogers was apologizing for in his absence, but clearly he has instructed counsel in this case to argue that he was not apologizing for paragraph 4 or else counsel for Rogers Wireless would not be in the courtroom today arguing that they intend to hold you liable for the total charges accruing on your lost or stolen phone until you reported it missing. Rogers is entitled to raise whatever defence they wish, however implausible it might be. Motion denied.”

8. I tend to agree that such a defence would not be terribly plausible. But given that Rogers Wireless Inc has adopted the position that what happened to MY cell phone and my actions relating to its theft is of CONTINUING relevance to the case concerning what happened to MY SON’S cell phone (and why Rogers Wireless Inc unilaterally and, in fundamental breach of contract, suspended service to it) I feel compelled to raise an argument against that position.

9.I thus feel compelled to argue that Mr. Rogers himself, founder, CEO and President of Rogers Communications Group Inc., on behalf of Rogers Wireless Inc, lifted the corporate veil and assumed personal responsibility and liability for a position of his corporation that he himself appears to have found inexcusable. My understanding is that Mr. Rogers’ intended to wipe the slate between us clean of the position taken in paragraph 4 of Rogers’ Statement of Defence.

 

10. Nobody but Mr. Rogers can speak to the intention that in fact informed his decision to personally call me on my home phone and personally assume responsibility for the behavior of the corporation, apologizing on the corporation’s behalf.

 

This would effectively be the position that I would argue on a motion to quash my summons.

 

I believe that in light of the fact that I had sought a motion that would have precluded a fair deal of any necessity in Mr. Rogers needing to testify, and that Rogers Wireless Inc maintained a position that tended to increase the likelihood that such testimony would become critically relevant to my Small Claims Court action, it is not I who have brought us to this point; but rather Rogers Wireless Inc.

 

I should perhaps also note that although the trial date is set for September 11, when I thought I might have to get an order for alternative service on Mr. Rogers, I asked Harry Gefen to find out when the next available motion date is. He was told on June 21 that the next opening would be September 14 (three days after the trial). My understanding is that there are no urgent motions in Small Claims Court. There is the possibility of getting a motion if there is a cancellation of a previously scheduled one. Apparently the list of cancellations is posted every day at Small Claims Court. I bring this to your attention as you indicated you might have an interest in getting a motion to quash my Summons to Witness.

 

I should reiterate that I am not available to attend any impromptu motions until August 1 as I am out of the country conducting research in Israel. And I should also note that I have committed myself to taking my son for a camping trip in Algonquin Park for one week in August (as of yet unscheduled) and will also likely take several days to visit my parents in Montreal before the academic years starts up again on September 5. I would appreciate, then, if no advantage were sought from the fact that I am not available to attend a motion on the days that I have here outlined.

 

Yours sincerely,

 

Susan G. Drummond

 

Motion to QuashBack to Top

 

I sued Rogers Wireless on September 19, 2005. The pre-trial conference for that case was held on March 1, 2006. And trial was scheduled for September 11, 2006.

 

On August 23, I received a letter from Mr. Plumley asking for my consent to adjourn our scheduled September 11 trial: Mr. Plumley wants to seek a motion to quash not only my summons of Mr. Rogers, but also the summons to witness of David P. Miller and Jan Innes of Rogers Communications Inc’s Board of Directors who I am also summonsing to witness.

 

Drummond v. Rogers Wireless Inc (SC-05-24969-00) AdjournsBack to Top

 

I consented to the adjournment and Mr. Plumley’s motion to quash will go forward in late October, 2006. The trial will no doubt not be rescheduled before the spring of 2007.