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The two million dollar comma

16/05/2012

I wrote a couple of days ago about those tricky rascals, subordinate clauses. Here’s an example of where inattention to their implications ended up costing serious inter-corporate hassle and wedge.

Rogers Communications, the Canadian cable company, had a contract with the telecomms and ISP company, Bell Aliant. When it came to the matter of termination notice, the contract read:

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.

Rogers Communications believed that the inclusion of that second comma meant that the contract was good for at least an initial five years, and only terminable thereafter. Bell Aliant maintained that the comma indicated the deal could be terminated at any time, without any initial ‘qualifying’ period, on condition that one year’s notice was given.

Having read Subordinating Stringfellow, you will know what’s coming next. If in doubt, remove the entire subordinate clause and see what is left: in this case, “… from the date it is made unless and until …” . In 2006, Canada’s telecommunications commission sided with Bell Aliant. They held that the second comma should have been omitted if the contract had been intended to last five years in its shortest possible term. As a result, Bell Aliant was able to save over C$2 million by ending the deal early.

But this was in (officially bilingual) Canada, and the regulator subsequently reversed its own ruling.  It held that it was appropriate to review the French version of the contract because the commission had approved the pole access rates and regulations (the heart of the dispute) in both English and French in 2000 when they were put in place, and the French version did not contain any errant commas to cloud the termination rights:

The Commission considers that, 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 lawyers on both sides (who had drafted the contract) cried all the way to the bank, and the two companies carried on bickering and seem to have been suing and counter-suing ever since. The most recent spat was over claimed broadband speeds.

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