Wednesday, August 22, 2007

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:


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