The Costly Comma Communications Conundrum In Canada

from the a-little-alliteration dept

Thu, Oct 26th 2006 10:35pm — Mike Masnick

For all of the complaints that show up about lawyers, it is true that when you're putting in place contracts, some of the finest details may turn out to be important down the road. John writes in to let us know the latest on the million dollar battle over a comma up in Canada. A few months ago, telco Rogers Communications lost their lawsuit while teaching a bunch of folks about commas and clauses. Basically, it's a contract dispute, where Rogers had the right to use telephone/power poles that were owned by someone else and managed by Aliant. They put in place a five year contract, renewable in five year increments. However, there was also a clause that allowed the agreement to be terminated with one year's notice -- which Aliant tried to do to Rogers. Rogers flipped out, recognizing that negotiating a new contract would mean much higher prices. It all comes down to a comma. The way Rogers reads the contract, the one year notification only applies at the renewal points. In other words, they can give one year's notice one year before each five year chunk is up. Aliant notes that with the placement of the comma, the one year notification loophole applies to the entire contract, suggesting they could just give one year's notice at any time.

The initial decision from this summer was in Aliant's favor -- though, not entirely due to the placement of the comma. The ruling also noted that if the purpose of the clause was to only go into effect every five years, instead of saying Aliant needed to give one year's notice, it would have given a date by which Rogers needed to be notified. This point is actually a lot more compelling than basing the ruling on just the comma alone (a comma which we doubt the original lawyers really paid attention to at the beginning). However, the story is about to get a lot more interesting. Rogers is appealing, and they claim that they have a second version of the contract written in French that makes it much clearer that the purpose of the original clause is only to allow the contract to be broken at the five year renewal points. Of course, this raises a whole bunch of other questions. How do you handle a contract dispute when the translation of the contract isn't quite the same? Of course, if the contract was originally written in English and translated to French, it's easy to just claim that the translator made a mistake, rather than having anything to do with intent. If, however, it was the other direction...

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11 Comments

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John Duncan Yoyo, 26 Oct 2006 @ 11:17pm

This is what got Ed fired
Anyone remember the TV show ED? This is the exact thing that got him fired and give up the big city to return to Stuckeyville.

Now having a contract in two languages is insane.
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Jeric, 27 Oct 2006 @ 12:04am

I love Canada!
Corporate giant versus Corporate not-so-giant.

From what I've heard so far, on balance of probabilities, I'd give it to Aliant.
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zeroJJ, 27 Oct 2006 @ 12:18am

shouldn't be an issue .... doh!
Almost every contract that is translated into other languages will have a clause stating which language/version will have deference.

With a deal this big and companies this large, it's assumed that there will be such a clause.
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yangyang (profile), 27 Oct 2006 @ 2:27am

This is assuming that everyone writing or signing a contract knows what they are doing.
Even for a very big contract and a whole bunch of lawyers, i would not bet on it.
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Bulent Akman, 27 Oct 2006 @ 3:14am

2 official languages? 2 times the headaches
As a bilingual Canadian I can say it's common knowledge that Canada has two official languages. To just flog it, this means both English and French are equally valid in the eyes of the law. The French copy was not, legally speaking, a translation but in fact an "original copy" of the English contract. Do I have that right? Was there one bilingual contract? Or were there two contracts which were both signed? Which was signed last? I suppose that in the Canadian courts, there is a principle of greater specificity in contract law? If both parties in good faith signed both contracts then wouldn't the more liberally worded English contract be voided by the more specific French one? I always thought a contract was only a contract if it met a reasonable level of specificity in both time and terms and was entered into in good faith. I can't imagine how such a devastating difference of interpretation wasn't uncovered in negotions. Sounds like Aliant is acting with deliberate knowledge that their preferred interpretation comes after the fact (a posteriori?). Can someone with legal experience explain it to me?
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perogiex, 27 Oct 2006 @ 4:26am

This has happened before
There was a similar case in Quebec a few years ago. A man was given a ticket for passing a slow moving car/bus(?) on a solid yellow line. He went to court arguing that the english version of the law did no prohibit the passing of a slow moving vehicle on a solid line. The judge ruled that the english laws were just a translation of the french ones so they take precedence.
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mousepaw, 27 Oct 2006 @ 8:37am

English vs French
As far as I know, one doesn't have to understand a contract to sign it or be bound by it as long as you meet the age requirement for signing the contract.

Contracts that hold a person or company liable without the party being aware of the "fine print" are signed all the time. (Particularly when borrowing money.) I believe the one signed last would be the one that takes precedence, as B. Akman said and the fact that there are two, in equally relevent languages, has no bearing as both companies were aware that this would be the case. Either the french one or the english one could've been signed last and whichever one that was would over-ride the other.

Since the question has been raised after the fact, it seems to me that the two companies will have to fight the concept in court and prove original intent.
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Adam Singer, 27 Oct 2006 @ 8:57am

great use of alliteration
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xxl3w, 27 Oct 2006 @ 9:00am

Save me Lord!
Ohh my, here comes the 1 million law professionals on techdirt voicing their opinio.... er, i mean facts, again.
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zeroJJ, 27 Oct 2006 @ 11:56am

Re: Save me Lord!
Well, are Mike's questions rhetorical or what?
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Stuart showalter, 20 Apr 2007 @ 6:07pm

Any update on this comma conundrum?
I know Rogers was going to appeal. Does anyone know the status of the case now (April 2007)?
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