Comma law.

• Author: Bowal, Peter

The writer who neglects punctuation, or mispunctuates, is liable to be misunderstood for the want of merely a comma ...--Edgar Allan Poe

Introduction

"Let's eat, Grandma" or "Let's eat Grandma." As the saying goes, "commas save lives."

This adage humorously demonstrates the significance of proper punctuation in determining meaning, and the potential cost for not heeding it. [1] Precision in punctuation has lost much ground in the last 30 years since the emergence of short, frequent, informal emails, texts and tweets replaced letters and reports as the preferred form of casual written communication between people and in companies. Meaning may be confused by punctuation in ordinary written communication, but the consequences are usually more serious in formal written communications such as contracts and other legal documents. The interpretations are adversarial and the stakes can be very high.

This article deals with the multi-million dollar comma involving Rogers Communications.

The Rogers Case

In 2002 Rogers Communications entered into a support structure agreement (SSA) with Bell Aliant, which granted Rogers access to transmission poles at the rate of $9.60 each per year. Rogers' access to these poles permitted connections of its telephone and cable services to homes throughout Canada. Bell Aliant was an agent of NB Power and did not own the poles itself. The five-year agreement was set to expire in May 2007.

However, in 2004 NB Power wanted to regain control of the poles and to raise the rates offered to companies like Rogers to $18.91, with a subsequent increase each year. Bell Aliant notified Rogers that its SSA was cancelled and that the rate increase would be effective at the beginning of 2006. Rogers Communications calculated that the SSA termination would cost it an additional $2.13 million to the original five-year deal. [2]

Defending the cancellation, Bell Aliant relied on a single clause in the SSA:

[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 devil is in the details, specifically in the last comma. Since Bell Aliant wanted to sharply increase the pole rate and wanted the contractual flexibility to do that, it interpreted this clause as the right to terminate the agreement at any time, with one year's notice. Rogers, on the other hand, wanted to retain the current rate as long as...