What Can Someone With No Legal Training
Do Against a Juggernaut Like Rogers ?
Table of Contents
I am aware that, as someone with formal legal training, I am better positioned than other consumers to get a grasp on my legal rights when confronted with a situation that is palpably unjust. My area of specialization is not commercial or contract law, however there is little doubt that formal training in law provides me with some facility at both framing the issues in a legal dispute and navigating a path through them.
That said , in the circumstances of our struggle against Rogers, there is a side-story about legal competence that should provide some courage to those facing a similar battle yet who feel daunted by their lack of legal training. My partner, Harry Gefen, a journalist who has no formal legal education, played a central and indispensable role in the legal battle with Rogers Wireless Inc.
When I found out in August of 2005 that Rogers was trying to force me to pay them over $14,000 for calls that I hadn’t made, I was not only shocked, I was immediately overcome with the sinking certainty of the implications of doing battle with a major corporation with deep pockets for legal counsel and intransigence. One of the knowledge sets that come with legal training is a comprehensive sense of the opportunity costs of legal disputes and litigation. I knew that taking Rogers on would consume phenomenal amounts of my time and energy. Apart from raising my son, I had another major commitment from which I could not afford to be distracted. I was tempted (at several junctures and for a range of reasons) to pay the disputed charges off in order to restore my life to the status quo ante.
Don’t capitulate to an Injustice Back to Top
$14,000 is a staggering amount of money for me - and it's in after tax dollars. That I was tempted to capitulate is in an indication of how phenomenally disruptive Rogers "escalation" of my account to their legal and collection departments was to my ordinary life.
Harry discouraged me from capitulating to Rogers’ demands without first exploring how we might persuade Rogers to zero the bill. He asked me to devote whatever resources I could. And he volunteered to take on a part of the legal research, sussing out what he could by using intuition, diligence, and common sense, thus reducing a fair portion of the burden on my time and energy.
Read the Contract Back to Top
Harry began our struggle by reviewing the original contract that I had signed with Rogers; going over it with a fine-toothed comb, looking for ways to use Rogers’ own contract to defend my legal rights. I removed myself from this process of deciphering the contract and redirected my energies to other related legal matters. Almost anyone who has faced one of these small-print, standard form contracts, would be deterred from deciphering the almost impenetrable legalese that pervades every sentence and clause. As it turns out, it paid for Harry to steel himself and refuse to daunted.
Keep the Account in Good Standing Back to Top
My sense of indignity over the way that Rogers was treating me propelled me on several occasions to want to cancel my contract with Rogers in disgust. Harry urged me NOT to cancel my three-year contract but rather, despite every natural inclination, to remain a Rogers consumer. I would thereby be comporting myself in complete good faith, despite the behavior of the opposing side. I would also retain access to Rogers’ customer support representatives and all the rights due me under the contract. And by keeping my account in good standing, I would avoid the penalty attendant upon premature contract cancellation, along with a demoralizing and energy-sapping battle with Rogers’ collection department if I missed a step.
Don’t Accept that “Resistance is Futile” Back to Top
However, keeping my account in good standing while Rogers was claiming that under the contract I owed the total charges on my stolen cell phone would require some finesse. The Wireless Service Agreement that I signed is explicit about my latter contractual obligation:
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. Should you not wish to replace your device or SIM card, you will be required to pay us for any applicable early cancellation fees (as outlined below).
This understanding is repeated on the invoice which outlines the terms and conditions of service. And every single customer service representative I spoke to repeated the same contractual clause like a mantra, underlining Rogers’ monolithic understanding that resistance is futile.
Not for the last time, it felt like I was caught between the devil and the deep blue sea. Fortunately, Rogers own Wireless Service Agreement provided the mechanism to maneuver between the seemingly irreconcilable positions of wanting to remain in good faith and good standing, and a contractual clause that seem incontrovertibly to be telling me that to do so, I needed to pay Rogers over $14,000.
Look for the Formal Dispute Mechanism Back to Top
Harry was not deterred by the explicit clause in the contract that allocates responsibility to the consumer for total charges on a stolen cell phone.
He found another clause in the contract (this one is NOT reproduced on the monthly invoices that Rogers sends consumers) that indicates that the consumer, by entering the contract with Rogers, only agrees to pay for “undisputed” charges:
Rates and Charges
1. We will bill you monthly. You agree to pay us for undisputed charges appearing on your account by the specified due date and using a method of payment approved by us. Any balance unpaid after the due date will be subject to the late payment charge specified on your Rogers invoice.
Underlining that I had only contractually committed myself to “undisputed” charges, Harry urged me to compel the corporation to disaggregate disputed from undisputed charges and instructed me to pay off the undisputed charges to keep my account in good standing.
The vast majority of the army of Rogers customer service reps (CSR’s) that I contacted over the phone and in person refused to disaggregate the charges in this way, insisting on the contractual term regarding the total charges owing on a stolen cell phone. After hours of phone calls and multiple arguments on my part about what Rogers’ own contract stipulated, Rogers had to finally concede that their contract obliged them to allow me to dispute the charges.
Expect the Corporation to Unilaterally Change the Rules Back to Top
Harry found a provision in Rogers’ contract that allows the corporation to unilaterally change the terms of the contract:
“Unless otherwise specified in this agreement, we may change, at any time, any charges, features or other aspects of the Services or any provision of this agreement, upon advance notice to you. If you do not accept a change, you may terminate this agreement and your Services upon at least 30 days advance written notice to us (unless we specify a different notice period for a particular change). No oral representation of any sales representative, dealer, agent, officer or employee of ours shall vary the terms of this agreement. You understand and agree that this agreement cannot be changed by you.
Rogers claims that they can unilaterally change the contract on-line on a page that is seven clicks away from their home page. The consumer is presumed to be informed of these modifications. If you pay your monthly invoice after Rogers has thus modified the contract, Rogers claims you have provided implicit consent to the new contractual terms.
Watch Rogers’ on-line Wireless Service Agreement at www.rogers.com/terms, last updated in July of 2006, to see whether Rogers’ legal department decides to remove the contractual provision about “undisputed” charges. Perhaps Rogers will seek to close this door.
If you are not satisfied with the new contractual terms, the only option you have as a consumer, at this point, is to cancel your Rogers’ contract. Presumably there should be no penalties for contract cancellation in these circumstances as Rogers has unilaterally altered the terms, providing no other option but contract cancellation for disgruntled contractees.
Document Everything Back to Top
I wrote up a document clearly indicating the charges that were in dispute, and why, and hand-delivered it to Rogers’ Corporate Head Offices at 333 Bloor Street in Toronto four days before my account was due on September 11. The Rogers contract stipulates that bill payment can be made at Rogers video outlets; and so I walked through the doors in the lobby of head offices into the video outlet on the ground floor and attempted to pay off my minimal “undisputed” charges.
The consumer service representatives at the Rogers outlet initially refused to provide me with a written confirmation of what they were finally confirming for me in person: that once I paid off my very minimal “undisputed” charges in full, my account would remain in good standing. Harry, scrupulous about not giving Rogers a single misstep on our part, insisted on written confirmation of this understanding and, through tactful negotiations, compelled them to provide us with this document, for which we had to return the following day.
The written confirmation that I had paid off my undisputed charges in full and on time would become critical for my subsequent struggles with the credit bureaus. But scrupulously following the terms of the contract also enabled me to avoid paying a cancellation penalty on the remainder of my contract for $475 ($200 per phone + one month’s notice of cancellation.)
Don’t Accept the Accuracy of what Customer Service Representatives Say Back to Top
Putting the time into diligently reading the minute terms of Rogers’ own standard form contract paid off. It also apparently took almost all of Rogers’ Customer Service Representatives off guard: we had to insist on the rights guaranteed in the contract over several days, in phone calls, letters, and in person, with a dizzying array of customer service reps and their supervisors before we saw any satisfaction.
Use Your Contractual Rights Creatively Back to Top
Through his studious perusal of Rogers’ Wireless Service Agreement, Harry also found, from clause 25 in the contract, a provision obliging Rogers to provide to me ALL of the records relating to my file upon request, including briefs, memos, and audio recordings:
“Upon request, you may inspect any of our records related to your Service.”
On the terms of the contractual wording, drafted entirely by Rogers’ legal department, this clause regarding my rights is without limitation or qualification. It is, in other words, unambiguous.
If Rogers were to insist that in fact the clause retains some ambiguity and doesn’t really mean ALL records relating to my file, there is a rule of contract interpretation that, when conjoined with Rogers’ approach to contract formation, precludes such an argument:
Rogers’ own legal department single-handedly drafted every word and punctuation mark on the contract; they also inserted a provision on their contract that underlines that the consumer cannot alter a single item of the agreement, down to punctuation marks. According to Rogers, the consumer’s only recourse at contract formation, if they are not comfortable with a term or provision, is to walk away from it. Negotiation is unequivocally excluded. As noted above, when you sign a Rogers contract, you agree that
"[no] oral representation of any sales representative, dealer, agent, officer or employee of ours shall vary the terms of this agreement. You understand and agree that this agreement cannot be changed by you."
There is a rule in contract law (the contra proferentem rule) for the interpretation of clauses that indicates that, should there be any ambiguity in a clause, that meaning is preferred which operates against the party who drafted the contract. If Rogers had not meant that I have access to “ALL” the records relating to my file, they would need to have inserted that unequivocal understanding into their standard form contract.
In my subsequent legal case against Rogers, this clause has allowed me access to important legal information for my case. However, much of the information requested has, to date, not yet been provided.
Keep Your Eye on Collateral Damage Back to Top
Although I paid off my undisputed charges in full and on time, as per the Wireless Service Agreement between us, Rogers sent a computer generated note to my file with Equifax and TransUnion (Canada’s two commercial credit bureaus) indicating that my account was “overdue” – and Rogers charged me a late penalty on those supposedly “overdue” amounts.
When I received October’s invoice, the disputed charges (i.e., the charges incurred by the person who stole my cell phone) were still on the bill; and in addition, Rogers was invoicing me for over $200 as a late payment penalty. Harry urged me to register an additional dispute, in writing, over Rogers’ late penalty on “disputed” charges. The time consuming process of disputing these charges on a monthly basis, as per the contractual term that Harry found, kept Rogers in a holding pattern. The damage that Rogers was regularly doing to my credit rating opened another leak in the dyke.
Use the Internet and Track Down Relevant Legislation Back to Top
While I devoted my attentions to drafting the legal pleadings in Small Claims Court against Rogers and burying them with a blizzard of letters, Harry tracked down the provincial legislation that governs Canadian credit reporting bureaus on the internet and read it through as carefully as he had read Rogers’ Wireless Service Agreement.
Insist on Your Understanding of Your Rights Back to Top
Then we called Equifax. Harry spent several more hours arguing the law with another dizzying array of representatives until he was finally ferried up to the manager of Equifax’s fraud department. The manager argued that the use of my phone by the person who stole it did not fit into the category of identity theft, and therefore I could not dispute Rogers claim that my bill was overdue.
When Harry insisted that the provincial legislative charter that authorizes the credit bureaus to collect credit data on consumers precludes them from registering as overdue accounts that are in dispute (legally obliging them, in other words, to maintain accurate credit files) Equifax’s fraud manager relented and agreed (exceptionally, he stressed) to submit my credit report to an internal legal investigation and, in the interim, to regard the bulk of my Rogers account as “in dispute”. Harry’s intervention with the credit bureaus, backed by whatever law he discovered on the internet, meant that I faced my struggles with Rogers with a diminishment of the coercive effect upon me of generating monthly and substantial hits to my credit rating.
Find Out About Your Dispute Resolution Options Back to Top
Harry Gefen, having also poured over the terms and conditions of my invoice, pointed out to me that I was committed to arbitration of our dispute according to the contract I signed with Rogers.
My immediate response was that the clause would not be upheld by a court if challenged. It would be found to be unconscionable that a major corporation, with all of the bargaining power on its side, in a standard form contract drafted in small (virtually illegible) print, sought to contractually eliminate consumers’ rights to sue in a class action law suit, or other action, before a court. Indeed, as Harry discovered, a British Columbia Court of Appeal has followed this legal logic - arbitration clauses in consumer contracts are unconsionable. I was, in other words, blasé about Rogers' claim on their invoice that I was committed to arbitration; and returned to the components of the legal battle to which I had tasked myself.
Don’t Accept Things at Face Value Back to Top
Harry was not so cavalier. Without the assistance of Quicklaw or any other legal data base, he scoured the internet until he found what was in fact another leading Canadian case on arbitration clauses at the time: Kanitz v. Rogers - an Ontario case at the superior court level. This 2002 decision (against Rogers, no less) upheld the arbitration clause on the grounds that consumers had signed away their litigation rights when the entered the original contract with Rogers.
The judge in Kanitz had upheld the arbitration clause. When Harry alerted me to this judicial change in climate in interpreting standard form contracts, particularly in an Ontario case - the jurisdiction in which legal disputes between Rogers and me would be resolved - I became quite a bit less blasé.
Further stressed, and again re-contemplating capitulating in order to recoup my life in what was beginning to appear like a battle with a many-headed hydra, I carried on with the parts of the struggle to which I had committed myself and Harry continued to dig on the internet.
Google Terms That Might Relate to your Struggle Back to Top
Harry found two legal articles, one produced by Blake Cassels (a prominent Canadian law firm) and the other generated by George Tacach, at the law firm of McCarthy Tetrault, that wrongly confirmed that the arbitration clause on the Wireless Agreement was binding and that any legal struggle I engaged in with Rogers could only be through the spectacularly expensive commercial arbitration process.
Make Some Phone Calls and Solicit Help Back to Top
Although I was further demoralized with this news as I already was consumed with more than a full-time struggle on other legal fronts, Harry was not deterred. He returned to the internet and found out about an American public legal interest group that was fighting arbitration clauses in cases involving Cingular Wireless.
He contacted the organization by phone in Washington and asked them for tips about how we might proceed, asking them further if they happened to know about any analogous Canadian struggles. The Washington based group alerted him to the British Columbia court of appeal case that had just overturned the clauses as unconscionable - a court with considerable persuasive authority in Ontario.
Track All Leads and Follow Up Back to Top
Harry returned to the internet and not only tracked down the BC appeal court case, he contacted the law firms that had posted their on-line legal assessments of Kanitz and arbitration clauses and suggested they might want to update their web sites. Given that one of the law firms he contacted represents Rogers, he was told that no modifications would be made because the BC court of appeal decision did not apply in Ontario.
Read the Legislation Back to Top
Still not satisfied with this interpretation of my legal rights, Harry refused to accept this verdict without going through the relevant legislation himself to see whether there were any further recourses. He returned to the internet and (again with no assistance from either formal legal training or professional legal data bases) went through the Ontario Consumer Protection Act. (Provincial legislation in Ontario can be found at e-laws Ontario). By reading this voluminous statute, he discovered that, in fact, the Ontario legislature had responded immediately to the Kanitz decision and amended the Consumer Protection Act (CPA) in 2002 so as to render the arbitration clauses unenforceable. He further discovered that the new CPA had been proclaimed on July 30, 2005, four days after the fraudulent phone calls had started on my cell phone and certainly within a time frame that allowed me to avoid having to arbitrate with Rogers. On the basis of these discoveries, I promptly entered my plaintiff's claim against Rogers in Small Claims Court for the damages that they caused me – a claim that is still before the courts, but now on amended pleadings that include a claim for punitive damages.
Insist the Corporation Behave in Good Faith Back to Top
It should be born in mind that Rogers continues to insist that Ontario consumers are bound by arbitration in their invoices and on their contracts, in violation of the fair trade practices standards of the OCPA. The vast majority of consumers would take that contract at face value, along with the monthly invoice that Rogers mails to people’s homes.
Find Out Which Government Body Regulates the Corporation and Complain Back to Top
I have subsequently intervened and complained to the Ministry of Government Services about the ongoing presence of that clause in Rogers Wireless Service Agreement. Both Rogers and the Consumer Protection Branch (CPB) concede that the clause is unenforceable and the CPB claims that it istrying to get Rogers to eliminate it from the contract through “progressive compliance”.
Explore Your Other Options Back to Top
While all of these features of Harry’s role in the Rogers debacle are relatively unknown, it is publicly known that Harry Gefen found out about a fraud forum being held in Toronto at which the manager of Rogers' Law Enforcement Support/ Fraud and Security Department was making a presentation on cell phone theft. Harry came across notice of this public (though highly specialized) forum - hosted by the Association of Certified Fraud Examiners and the Canadian Association of Special Investigation Units - by surfing the internet. The Annual Fraud Forum was open to anyone who paid the fee of $200.
Behave Irreproachably Back to Top
Harry's behavior at the conference was ethically irreproachable. He paid the entrance fee and was not asked whether he was a special investigator. He wore a badge that read: Harry Gefen, Knowledge Media. Through deft interviewing, he managed to get the manager of Rogers’ fraud department to admit on tape that Rogers has a computer generated protocol in place to intervene in atypical call patterns and that the protocol has been in place since 1997, when Ted Rogers own cell phone was cloned by a group linked with Hezbollah (see story). Harry declined to write up this amazing story himself, prior to my $14,000 bill being zero’d, so as to avoid any taint of conflict of interest.
Harry passed the story on to a journalist at the Globe and Mail, whose story ran on the front page for two days running and garnered an additional two stories in the front section of the Globe; and the story was picked up by both national and international news outlets. The very day that that story appeared in the Globe and Mail, Ted Rogers himself contacted us to relent and zero my bill.
Don’t Accept that You Are Powerless and Don’t be Daunted Back to Top
I was told by two of Canada’s top class action lawyers when I sought their advice that it was fruitless to struggle against a juggernaut like Rogers and that I would save myself hundreds of hours of wasted time and energy if I simply paid Rogers the over $14,000 that the corporation was claiming I owed. After the Rogers story broke in the Globe and Mail, I have been receiving letters and emails from lawyers with Rogers’ consumers asking for my advice about how to get Rogers to come to heal.
Support the Campaign to Pressure the Government to Regulate the Wireless Industry and Corporations like Rogers to Self-regulate Back to Top
This web site advocates challenging a juggernaut like Rogers in ways that are both ethical and that operate within the confines of the law. It suggests that there are important gains that can be made by struggling to understand your rights and taking the moral and legal high road.
I am aware that, in multifarious ways, consumers who comport themselves with the most irreproachable good faith can find that the corporation is prepared to exploit significant asymmetries in bargaining power and legal resources to overwhelm and defeat the ordinary consumer.
My amended pleadings in Small Claims Court ask for an order of punitive damages. According to the leading Supreme Court Case on punitive damages, the theory that drives punitive damages is that “it takes a large whack to wake up a wealthy and powerful defendant to its responsibilities”. (Whiten v. Pilot Insurance Inc.)
Punitive damages are warranted when: the behavior of the defendant is designed to force vulnerable parties to make an unfair settlement; the defendant’s conduct was planned and deliberate; the defendant was cavalier with or hostile towards an obligation to deal with the plaintiff in good faith; a pattern of conduct can be established; the actionable wrong is a breach of a contractual duty of good faith; the defendant’s conduct is high-handed, arbitrary, or highly reprehensible; the defendant stands poised to profit by its high-handed behavior; other fines or penalties that the defendant might face are insufficient to deter high-handed behavior; misconduct would otherwise go unpunished; and when other penalties are inadequate to achieve deterrence.
I have tried to make out the claim for punitive damages for the nexus of circumstances relating to my case. If punitive damages are awarded, that will not only send out a clear message to Rogers Communications Group that its behaviour is unacceptable, it will also set a precedent that other consumers can use if they find they are being treated in a high-handed manner by a corporation with massively greater resources.
If the claim for punitive damages is successful, there should be some levelling of the playing field so that when ordinary consumers decide to fight an injustice with a juggernaut of a corporation, they face less oppressive business and legal practices. If the claim for punitive damages is successful, Rogers will have been disciplined by the court; the court will have sent Rogers a clear message that its behaviour is unacceptable.
I am aware, however, that going to court is always a risky proposition. In contrast to mediation or negotiation, the outcome tends to be more unequivocally win or lose. And I am aware that turning to court for a remedy in punitive damages (which are infrequently awarded by Canadian courts) is a particularly risky proposition.
The courts cannot (and should not) be pressured by campaigns to influence their judgments.
However, the court of public opinion can be legitimately used to pressure Rogers to change its ways.
In theory, one of the main regulatory bodies for the Wireless Industry is the Canadian Radio-Television and Telecommunications Commission (CRTC). But the CRTC stopped regulating the wireless industry in the mid-1990s in favour of allowing the marketplace to regulate wireless service providers.
It is acceptable to lobby the CRTC to re-regulate the wireless industry; and indeed consumers rights groups in the United States are advocating for increased government involvement.
It is also acceptable to follow the policy approach of the CRTC - which is to stimulate market forces in the wireless industry - and "vote with your feet". There are consumer web sites on the internet, such as www.ihaterogers.ca, that are devoted to providing consumers with options, If you are not satisfied with how Rogers treats consumers, let Rogers know and change your service provider.
The other main regulatory body that governs the wireless industry is the provincial government under consumer protection legislation. Contact the Consumer Protection Branch of the provincial ministry where you live and insist that they do their job to protect ordinary consumers from unfair trade practices, such as arbitration clauses and abusive collection treatment. Complain to the provincial authorities that regulate credit bureaus and insist that illegally-damaged credit ratings and reports not be used as a tool to coerce consumers to pay disputed charges.
If consumers want to provide active support for advocacy groups that fight for consumer rights, the Public Interest Advocacy Centre (located both in Ottawa and Toronto) is a non-profit organization that provides legal and research services on behalf of consumer interests (in particular, vulnerable consumer interests). PIAC is set up to receive charitable donations under the federal Income Tax Act.