Comma interpretation update

In case you've been wondering what ever happened to contract interpretation issue between Rogers Communication and Aliant -- the one that hinged on a comma -- well, the latest instalment was delivered Monday by the Canadian Radio-television and Telecommunications Commission (CRTC).

To briefly re-cap: In 2002 Rogers and Aliant entered into a 5-year, renewable contract under which Rogers would use power poles owned by Aliant. A few years into the contract Aliant wanted out of it, so it sent written notice to Rogers indicating it would terminate the contract in one year. Aliant's interpretation of the termination clause was that either party could terminate at any time, so long as the other party was given one year's notice.

Rogers didn't want the contract terminated and it argued that under the clause in question neither party could terminate the contract within the initial five year period. Rogers said that the plain and ordinary meaning of the words created ambiguity so the CRTC should interpret the contract based on the underlying intent of the parties. (And of course, Rogers argued that the underlying intent was that it could not be terminated in the first five years.)

As I noted here on Aug. 10, 2006, in its decision of July 28, 2006 (CRTC 2006-45) the CRTC disagreed with Rogers' interpretation of the clause in question. The Commission concluded that the wording is clear and unambiguous and that "... based on the rules of punctuation, the comma placed before the phrase 'unless and until terminated by one year prior notice in writing by either party' means that that phrase qualifies both the phrases ...". So, according to the CRTC in 2006, the contract could be terminated at any time by either party so long as the required written notice was given.

As I noted here on Oct. 16, 2006, Rogers appealed the decision and argued (among other things) that the French version of the contract is clear (and in favour of Rogers' interpretation) so the 2006 decision should be overturned.

Well, Monday the CRTC issued a decision in which it said that there was "substantial doubt" about the correctness of its 2006 decision with regard to the interpretation of the termination clause. In CRTC 2007-75 (Para. 63), the Commission said:

"... between the two versions, it is appropriate to prefer the French language version as it has only one possible interpretation, and that interpretation is consistent with one of the two possible interpretations of the English language version."

The underlying contract dispute between Rogers and Aliant isn't necessarily settled once and for all with this CRTC decision, however, because the CRTC also concluded that it does not have jurisdiction over granting access to these poles (power poles) for communication purposes. So, we may not have heard the last of this issue. (It will depend on whether Rogers wants to assert its claim in another venue.)

There's one other issue related to this case that's worth raising again -- it relates to a comment I posted on Aug. 20, 2006 about "boilerplate" language used in the contract. In that posting I noted I wasn't too sympathetic about the use of boilerplate language. As I said, just because boilerplate language has been around, and used by many, doesn't mean it is sacrosanct. Well, I still think that principle holds and I'd warn: use boilerplate at your own risk.

But, in this case, it turns out the contract language in question wasn't really boilerplate -- it was language that had, apparently, been "blessed" by the CRTC. The contract used by Rogers and Aliant was based on a model agreement the Commission had previously "... approved both English and French language versions of..." (Para. 58 of 2007-75). And,given that the Commission made it clear in other decisions that it favours uniformity for such agreements, unfortunately the parties must have felt they did not have authority to depart from the wording of the model agreement. Pity.

If you're interested in reading the latest CRTC decision you can find it at: http://www.crtc.gc.ca/archive/ENG/Decisions/2007/dt2007-75.htm?Print=True

Subject to interpretation

I can't resist...

A friend (who happens to own a motorcycle) e-mailed me the following "ad" from the Auto Trader web site for a 2006 Suzuki GSXR 1000. (I specify the details of the make and model out of deference to my friend and other bikers).:

Fourways, Johannesburg
This bike is perfect! Only done 7000 kms and has had its 1500 km dealer service. No falls/scratches. I use it as a cruiser/commuter. I'm selling it because it was purchased without proper consent of a loving wife. Apparently "do whatever the f*!# you want" doesn't mean what I thought. Call me. Steve...

Apocryphal? Likely, but it's a good reminder that no matter how plain the words, communication between humans is rife with the possibility of misinterpretation!

Sacrificing accuracy for brevity

A couple weeks ago I heard a story on the evening news that didn't make sense to me. It concerned a statement in a letter sent by the Canadian High Commission in New Delhi to candidates for immigration to Canada.

Part of the story that was "news" to me is the fact that Sikh boys are given the name Singh and Sikh girls are given the name Kaur when they are baptized. According to the news stories I've read about it since, Sikh children are given these names to symbolize unity and to remove other names that could be used to identify social standing in India's caste system.

Though that information was interesting to me, that was only part of the story that was intriguing. The other part was about the wording of the letter itself. Here's an excerpt of the letter in question (as it appeared on page A23 of theToronto Star on July 26, 2007) -- it was sent to Singh Jaspal:

This refers to your application for permanent residence in Canada. In order to continue the processing of your application, please send the following documents and RETURN THIS FORM WITH THE REQUESTED DOCUMENTS.

1. ORIGINAL passport for yourself after getting your surname endorsed on it (submit only after medical examination is completed). Please note that your surname must be endorsed on your passport. The names Kaur and Singh do not qualify for the purpose of immigration to Canada. Please note that a request for your passport(s) at this time is not a guarantee of visa issuance …

What on earth does it mean that a name does not qualify for the purposes of immigration? The sentence makes no sense.

The wording of the letter became a news story when the husband of a Sikh woman living in Calgary sought to join his wife here. According to the news story, the woman's husband was forced to legally change his name in India so his immigration application would be processed in time for the birth of their child here in Canada.

The issue behind the letter is the policy that the Canadian High Commission in New Delhi had been applying for about 10 years that required people to legally change their name. (As many commentators noted, a likely reason few complaints about the policy have been publicly registered is that would-be immigrants might fear that a complaint could jeopardize their chances of being granted immigration.)

The initial response by Immigration Canada was that applicants were asked for a different name simply to help speed up application processing and to prevent cases of mistaken identity due to the commonness of Singh. A day or so after Immigration Canada's initial response, the World Sikh Organization raised the issue with the Canadian government.

Ultimately, Immigration Canada announced it was dropping the policy, calling the whole thing a misunderstanding based on a "poorly worded" letter. Poorly worded is quite an understatement! Not only does the sentence, "The names Kaur and Singh do not qualify for the purpose of immigration to Canada" not make sense (names do not immigrate -- people do), it also left most readers with the belief (allegedly mistaken) that persons with the surname Singh or Kaur must legally change their name in order to seek immigration to Canada.

Citizenship and Immigration Canada eventually released a formal statement explaining it administrative process regarding applications filed in New Delhi. The information set out in this public statement was much clearer. Besides noting the confusion caused by the earlier correspondences, the statement (excerpted below) offers an explanation of the rationale behind the earlier policy and makes it clear that applicants are not required to legally change their name, they are merely encouraged to include a family name in addition to Singh or Kaur.

Not only was the bad press surrounding the wording in the letters from New Dehli well deserved from a an immigration policy and procedural perspective, it clearly shows the perils of sacrificing accuracy for brevity.

[Here's the except from the statement printed in the Toronto Star under the heading: WHAT THE GOVERNMENT SAYS

Citizenship and Immigration Canada, in response to recent media interest in our administrative process regarding applicants for permanent residence in New Delhi using the surnames Singh or Kaur, provides the following information:

Permanent resident applicants with the surnames Singh or Kaur are not required to change their names in order to apply.

In no way did CIC intend to ask applicants to change their names. The letter that was previously used to communicate with clients was poorly worded. We are making changes to ensure there will be no misunderstandings in the future.

* * *

Asking applicants to provide a surname in addition to Singh or Kaur has been an administrative practice used by our visa office in New Delhi as a way to improve client service and reduce incidents of mistaken identity. This was not a mandatory requirement. There is no policy or practice whereby people with these surnames are asked to change their names.

* * *

Most applicants affected have a family name in addition to Singh or Kaur, even if it is not used, that can be easily added to their passport. …

CIC’s visa office in New Delhi receives a high volume of permanent resident applications from people with the surnames Singh and Kaur.

We hope that this will provide the information you require. Our media line is available at 613-952-1650. Thank you.

(Toronto Star, page A23, July 26, 2007)]