1. The “million-dollar comma case” was a 2006 dispute between Rogers Communication (a cable company) and Bell Aliant (a telephone company). It involved the use of more than 90,000 utility poles scattered across Canada’s easternmost provinces; value of the contract was around 900,000 Canadian dollars.
Issues:
How long is the duration of the contract? Can Bell Aliant cancel its contract with Rogers at any time, even before end of the term?
Background facts:
Date of execution of the contract between Rogers Communication and Bell Aliant was May 31, 2002.
The issues revolved around the interpretation of the following clause:
“This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”
The problem begins:
New Brunswick Power Distribution and Customer Service Corporation (NB Power) actually owned the poles, not Bell Aliant. In 2004, NB Power terminated its contract with Bell Aliant.
In October 2004, NB Power began invoicing Rogers Communication for the use of its poles at a rate of $18.91 per pole per year.
On January 31, 2005: Bell Aliant provided Rogers Communication notice of termination of the 2002 agreement, effective February 1, 2006.
Rogers Communication filed a suit with the Canadian Radio-Television Telecommunications Commission (CRTC), saying that Bell Aliant could not terminate its contract without cause before May 31, 2007.
Opposing interpretations by the contracting parties:
Rogers Communication: Contract was good for at least five years, from May 31, 2002 to May 31, 2007. The contract will automatically renew for another five years, unless either party cancels the contract before the start of the final 12 months.
Bell Aliant: Contract can be terminated even before May 31, 2007, as long as one year’s notice is given. Reason: The second comma in the disputed clause located between the words “terms” and “unless”:
“This agreement shall be effective from the date it is made and shall continue in force for a period of five (5) years from the date it is made, and thereafter for successive five (5) year terms, unless and until terminated by one year prior notice in writing by either party.”
Who won the case?
First ruling of the CRTC:
Citing the “rules of punctuation,” CRTC ruled in favor of Bell Aliant. The placement of the second comma allowed Bell Aliant to end its five-year agreement with Rogers at any time with notice.
Final ruling of the CRTC:
CRTC ruled in favor of Rogers Communication, citing that the French version of the contract provided clear evidence that the parties intended to restrict termination without cause to the end of the term.
2. Kenneth Adams, a lawyer specializing in drafting of contracts and lecturer at the University of Pennsylvania Law School, was a consultant for Rogers Communication. He offered his rewrite of the disputed clause:
“The initial term of this agreement ends at midnight at the beginning of the fifth anniversary of the date of this agreement. The term of this agreement (consisting of the initial term and any extensions in accordance with this section) will automatically be extended by consecutive five-year terms unless no later than one year before the beginning of any such extension either party notifies the other in writing that it does not wish to extend this agreement.”
Prof. Adams explains why legal contracts are convoluted and oftentimes unintelligible: “Because any given transaction will closely resemble many previous transactions, and because lawyers tend to be risk-averse and wary of change, as things stand contract drafting is essentially an exercise in regurgitation. Add to that the specialized nature of contract language—it’s akin to a cross between regular writing and computer code—and it’s not surprising that business contracts are riddled with redundancies, archaisms, misconceptions, and other drafting glitches.”
A Financial Times article quotes Prof. Adams as saying: “The dirty little secret of the Anglo-American drafting style that dominates global transactions is that nobody drafts contracts from scratch.”
3. PDF resources on commas by Judge Gerald Lebovits: “The Pause That Refreshes: Commas” and “The Pause That Refreshes: Commas—Part 2”
“Commas, like all punctuation, have many uses, including writing persuasively. Punctuation can speed readers up or slow them down. Em dashes (“—”) grab readers, semicolons pause, periods arrest. Recast sentences to add or excise commas if you want your reader to get through your material slowly or quickly.”
4. Infographic from GrammarCheck: “Top 6 Commmon Comma Problems”
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| Click the graphic above to view or download the full infographic |
5. 2019 Canadian case involving commas: “An attempted class action suit against Bell Canada failed after plaintiffs lost a debate over commas and rounded numbers”
“The Ontario Superior Court of Justice was asked last month to consider how Bell Canada calculates its yearly cost of living increase for pensioners. The plaintiffs alleged that Bell did its math wrong, and the increase for 2017 should have been two per cent. Bell said it did the calculation correctly and the increase should be one per cent. It all came down to a question of math — and grammar.”
“This, of course, may seem an odd, or perhaps an excessively minute detail to be determinative of a case that impacts on some 35,000 pensioners of the Bell Canada corporate family.”
The controversy lies with the interpretation of the following sentence:
‘Pension Index’ means the annual percentage increase of the Consumer Price Index, as determined by Statistics Canada, during the period of November 1 to October 31 immediately preceding the date of the pension increase.
The judge based his ruling on the placement of the comma: “Since there is a comma preceding the modifier, the opposite of the last antecedent rule — often dubbed the ‘series qualifying rule’ — is applied. ”
Contracts guru Kenneth Adams criticizes the Canadian court’s ruling in “More Comma Confusion: The Opinion of the Ontario Superior Court of Justice in Austin v. Bell Canada.”
6. The power of a comma from “Should Lawyers Punctuate” by Richard C. Wydick (The Scribes Journal of Legal Writing, Vol 1, 1990):
Fifth Amendment, US Constitution
“[No person shall] be deprived of life, liberty, or property, without due process of law . . .”
The comma after “property” tell us that the phrase “due process of law” modifies the verb “be deprived”.
Without the comma after “property,” it would permit a lawyer to argue (in defiance of the provision’s long history) that “without due process” modifies only “property.” Thus, the fifth amendment would forbid deprivation of property without due process and would absolutely forbid both incarceration and the death penalty.
Comparing the 1987 Philippine Constitution and the US Constitution
The Bill of Rights of the 1987 Constitution was patterned after that of the US Constitution. Notice, however, that there's no comma after “property” in Section 1 of Article III.
| Fifth Amendment, US Constitution No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. | 1987 Constitution, Article III, Bill of Rights Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws. |
Note: “Wydick served as Acting Dean of the [UC Davis] Law School in 1978-80 and received the Distinguished Teaching Award in 1983. He has authored books on ethics, evidence, and good writing, including the esteemed legal writing guide, ‘Plain English for Lawyers.’
“Wydick has received honors including the Golden Pen Award from the Legal Writing Institute and a lifetime achievement award from Scribes, the American Society of Legal Writers, in recognition of his contributions to legal writing.”
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