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Rogers' comma victory found in translation

While it may have some brushing up to do when it comes to English grammar, Rogers Communications Inc.'s knowledge of French helped it emerge the victor in the nearly two-year-old comma conflict.

The federal telecommunications regulator yesterday sided with Rogers in its dispute over an agreement with Bell Aliant Regional Communications Income Fund to lease power poles. Bell Aliant terminated the contract before the five-year term was up, raising rates.

While one piece of punctuation in the English version led to two very different interpretations about when the deal could be severed, Rogers successfully argued that the French version of the contract was clear and supported its position.

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Despite its victory, Rogers still lost. That's because the Canadian Radio-television and Telecommunications Commission ruled 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.

"Rogers has won the battle of the comma and lost the war," said University of Toronto law professor Peter Ruby.

It all started in 2002, when Rogers signed a contract with Aliant Inc., as it was then known, for access to power poles at an annual rate of $9.60 a pole. Rogers used the poles for its cable lines.Some were owned by Aliant, and others by New Brunswick Power Corp.

Changes to an agreement between Aliant and New Brunswick Power Corp. in 2004 led the annual rates to jump to $18.91 a pole. Aliant told Rogers on Jan. 31, 2005, that it would terminate the contract on Feb. 1, 2006. It also said N.B. Power would now be in charge of billing Rogers.

According to Aliant's reading of the contract, it could break the deal at any time as long as it gave one year's notice. However, Rogers believed that the contract was in effect for five years, until May 31, 2007.

In 2006, the CRTC ruled in Aliant's favour, saying the placement of a comma in one part of the contract allowed that company to cancel the deal at any time as long as it gave one year's notice.

Rogers decided to fight that decision. The CRTC had approved a standard form for such support structure agreements in 2000. The disputed Rogers-Bell Aliant contract was based on the English version. However, Rogers uncovered the French text, which was different.

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The CRTC yesterday overturned its previous decision, explaining that it was "appropriate to prefer the French-language version as it has only one possible interpretation."

The regulator, however, can't force Aliant to stick by the lower rates in the contract. That's because the Supreme Court of Canada ruled in 2003 that the CRTC doesn't have control over power lines.

Pam Dinsmore, vice-president of regulatory affairs for Rogers' cable unit, said it is too early to say whether the company will take its fight any further. A spokeswoman for Bell Aliant declined to comment beyond its CRTC submission.

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What the agreement said

In English

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The disputed section in the English version of the Support Structure Agreement (source CRTC): "Subject to the termination provisions of this Agreement, 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."

In French

The same section of the model Support Structure Agreement in French (source CRTC, emphasis added): "Sous réserve des dispositions relatives à la résiliation du présent contrat, ce dernier prend effet à la date de signature. Il demeure en vigueur pour une période de cinq (5) ans, à partir de la date de la signature et il est subséquemment renouvelé pour des périodes successives de cinq (5) années, à moins d'un préavis écrit de résiliation à l'autre partie un an avant l'expiration du contrat."

What experts say

McGill law professor

Richard Janda

"The commission has now relied upon the French-language version of the agreement in order to overcome this comma problem that they had encountered originally."

Mr. Janda said the CRTC must take both languages into consideration. "In this case, it's not just a contract that's been drafted by the parties, but it's one that's mandated by the commission itself. As the commission points out, this isn't just contract law, this is a regulatory decision."

University of Toronto law professor Peter Ruby

"Among the intriguing aspects of the ruling that could have wider implications was the CRTC's decision to accept new evidence in the second round that already existed but wasn't submitted at the time of the first decision, Mr. Ruby said. "You can get a second kick at the can, it appears, even if you could have put the new document forward the first time and you just didn't."

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