Rogers Victory in the Comma Case

Today the Canadian Radio-television and Telecommunications Commission released a decision in the famous “comma case.” Click here for a copy of the decision. (You may recall that I acted as expert for Rogers Communications Inc. in this dispute; click here for my most recent post on this dispute.)

This time the Commission sided with Rogers. This decision means that the agreement between Rogers and Bell Aliant ran for the full five-year initial term, until May 2007, and was not terminated by Bell Aliant effective February 1, 2006.

In response to Rogers’ application requesting that the Commission reconsider its July 2006 decision in favor of Bell Aliant, the Commission reviewed the French-language versions of the agreement in question and on that basis rescinded the earlier decision. The Commission did not need to review, among other matters, evidence submitted by Rogers with respect to rules of punctuation—in other words, my affivadit! I’m sure that the Commission was delighted to have avoided any further discussion of the Rule of the Last Antecedent.

I note that the French version of the contract not only avoiding any comma-related hanky-panky, it also was structured altogether more rationally, in that it provided for automatic renewals unless either party gave notice at least one year before any renewal kicked in. My original post on this dispute had suggested that the drafter of the English-language veresion should have used exactly that arrangement.

In any event, congratulations to Rogers and to Cassels Brock & Blackwell LLP, their outside counsel. But as this article in the Globe and Mail points out, it appears that despite its victory, Rogers still lost. That’s because the Commission ruled that it doesn’t have jurisdiction over power poles and can’t help Rogers with the extra $700,000 it has to pay for leasing those poles from Bell Aliant.

This was an unusual dispute, in that its notoriety was entirely out of proportion to the modest amount of money at stake. It was a privilege to have been involved. At some point I may go public with my analysis—now moot—of the comma issue.