On September 2, 2005 (eight days before my invoice was due) Rogers unilaterally shut off service to my then 11 year old son’s cell phone because I was not making a “promise to pay” over $14,000 in charges that had accumulated on MY stolen cell phone.
On September 14, 2005 (my son’s twelfth birthday) I came to the conclusion that my laborious efforts at imploring Rogers to restore wireless services to my son’s cell phone were not going to bear any fruit. Rogers appeared impervious and adamant that I had to capitulate.
Instead of continuing to battle Rogers day-in-day-out to restore wireless services to my son's phone, I finally went out and purchased another cell phone for my son and set up wireless services on it with one of Rogers’ competitors.
I returned to Rogers Corporate Head Offices that very day and hand-delivered a notice indicating that I had mitigated my losses flowing from Rogers’ fundamental breach of contract.
I was very bothered that Rogers had unilaterally and fundamentally breached our contract, thereby creating vexatious dislocations in our lives; I was also bothered that Rogers had forced me into a situation where I had to lay out money for a new cell phone. So, despite Rogers unenforceable contractual warning that I could not resort to the courts in the event of a dispute, I sued Rogers in Small Claims Court for my damages. The damages I claimed included not only the cost of the new cell phone, but also the losses of time, of economic opportunity, and of income flowing from the breach. And I also claimed punitive damages for the high-handedness of shutting off a child’s cell phone 4 days before he was to take the very daunting subway for the first time in his life; particularly just after the London Subway bombings of July 7 2005, which reportedly had been coordinated with stolen cell phones. Rogers action, I argued, was all the more egregious as the pre-emptive shutting off of a child’s phone was undertaken as part of a campaign of collection “treatment” 8 days before my invoice was due.
I filed this original plaintiff’s claim on September 19, 2005 in Toronto Small Claims Court; and promptly served Rogers notice of my action against them.
I made out the claim for punitive damages on the original pleadings less than a month into my overall “experience” with Rogers Wireless. I made it out on the basis of what appeared at the time to be the most salient feature of Rogers’ reprehensible behaviour – shutting off a child’s cell phone to collect a bill to force a settlement.
Of course it now turns out that I never owed that bill in the first place (see Story and hear a recording of Ted Rogers subsequent apology) – a fact that underlines Rogers’ behaviour as all the more reprehensible.
And since filing my original pleadings, I have uncovered a wealth of reasons that justify a more elaborate case for punitive damages.
In his personal and public apology for the debacle relating to my cell phone, Ted Rogers assured us that he would cover our costs and compensate us for the hundreds of hours of time that we had expended fending off his corporation’s inexcusable (as he called it) behavior. He invited us to send him an itemized account of our damages, that he assured us that we would be expeditiously compensated. To date, Mr. Rogers promise of compensation has not been kept.
While it had been my intention to settle my Small Claims Court action with Mr. Rogers at our scheduled February 6 tea, that settlement was precluded by Mr. Rogers’ last minute cancellation. Although it was apparent that the pre-trial conference for my claim was just around the corner (March 1, 2006), I never heard from Rogers’ legal department to settle the $10,000 claim in Small Claims Court, nor from Rogers’ Lang Michener lawyer.
The rules of Small Claims Court are clear that what happens in the pre-trial room are confidential. One of the explicit goals of pre-trial conferences is to see whether an intermediary judge, who will not be the judge at trial, can help the parties settle and thereby avoid the costs and travails for all (both parties and the court) of going to full trial.
Although Rogers might well have a reason to keep as much of this trial away from the public eye as possible, I can see reasons to hasten it out of private settings and back into both the formal court as well as the court of public opinion. Within 24 hours of the pre-trial conference (which led to no off-the-record settlement of our issues) I re-filed an amended statement of claim, thereby placing the issues back on the public record.
As I am arguing punitive damages in my Small Claims Court action, it is consistent with that cause of action that as much of the record remain as public as possible. An award of punitive damages is meant to act as a deterrent for the Defendant from behaving in such a manner in future transactions with consumers. Punitive damage awards are intended to operate as a form of behaviour modification. A private settlement of our dispute, even with a discrete acknowledgement of fault for high-handed and reprehensible conduct, would serve as no deterrent at all.
Legal academics and practicing lawyers have been writing for some time about the public interest in having matters proceed to trial, rather than being diverted to the private venues of mediation, settlement, or arbitration. I believe that this case may represent one of those instances where alternative dispute resolution would go against the grain of the public interest in trial proceedings.
All proceeds from the Small Claims Court Action will be donated to the
Public Interest Advocacy Centre