A dispute over the proper use of punctuation in a multimillion-dollar contract for utility poles has turned into l'affaire comma for Rogers Communications Inc. and Aliant Inc.
Rogers, which lost a debate this summer over the placement of a comma in a contract to lease thousands of poles in New Brunswick, is now turning to the French language to make its case.
Federal regulators ruled in July that a single comma in a 14-page contract meant the deal could be scrapped by Aliant, potentially resulting in as much as $2.13-million in extra costs for Rogers.
After parsing the wording, the Canadian Radio-television and Telecommunications Commission determined the contract spelled out in plain English that Aliant could exit the deal.
Au contraire, Rogers' lawyers say. The company has spent the past two months hunting down a French version of the same contract. And because that document doesn't use the same punctuation, the decision should be overturned, Rogers says.
The matter is now heading back to the CRTC, pitting the country's two official languages against each other.
"Because we're an officially bilingual country, documents like this have a French version and an English version -- and both are equally valid," said Ken Englehart, Rogers' vice-president of regulatory affairs. "It's kind of one of the advantages of having two official languages."
The argument stems from a deal signed in 2002. Rogers thought it had a five-year agreement in place, which could be renewed for successive five-year terms, to string cable lines across 91,000 poles in the Maritimes. But Aliant, which administered the poles on behalf of the local utility, NB Power, informed Rogers last year that the contract was being cancelled and the owners were tripling the rates.
Rogers argued the agreement was iron clad. But Aliant cited the English contract, which said: The agreement "shall continue in force for a period of five years from the date it is made, and thereafter for successive five-year terms, unless and until terminated by one year prior notice."
The contract, and the millions of dollars in dispute, came down to the second comma in the English sentence. It meant the conditions of cancelling the deal apply to both the initial five-year term and the subsequent five-year terms. Without it, Rogers would have been fine.
"Based on the rules of punctuation," the comma in question "allows for the termination of the [contract]at any time, without cause, upon one-year's written notice," the regulator said.
Rogers has since marshalled a number of grammatical and legal sources to argue that the comma doesn't matter.
But the French contract and the slightly different wording in that document form the bulk of the company's appeal.
The case of the tele-comma, as it has been dubbed in legal circles, has drawn widespread attention. Several law schools in Canada and the U.S. have flagged the dispute as a cautionary tale about the importance of proper grammar in law.
The contracts in question are prewritten agreements previously negotiated between the cable and telecom industries for the use of utility poles. While the English contract was created first and then translated into French, both were signed separately by each company, which could split the debate down the middle.
Rogers has received some good news in recent months. A subsequent regulatory decision in New Brunswick has since pared down the $2.13-million financial blow it faced by reducing NB Power's proposed rate increases. However, the dispute could still cost Rogers more than $1-million if it loses.
St. John's-based Aliant has until the end of October to respond, and officials wouldn't discuss the French contract. Aliant is 53-per-cent owned by BCE Inc.
"We are currently in the process of drafting our response," said David Hennessey, manager of regulatory affairs for Aliant.
Grant Robertson