ROBERT SIEGEL, host:
We read today of a contracts case in Canada that involved the cable company, Rogers Communications, and a telephone company, Bell Aliant. An issue was Roger's use of Bell Aliant's telephone polls and Bell Aliant's desire to get out the deal. Now even though a good Canadian telephone poll case has a certain compelling character to it no matter, the reason that we bring this one to your attention is the principle that decided it. Canada's telecommunications regulator made English teachers all over North America proud by ruling that it all hinged on the use of a single comma, a comma that according to the Canadian newspaper The Globe and Mail cost the cable company more than $2 million Canadian.
Richard Janda is a professor of law at McGill University in Montréal and joins us now. Welcome to the program, Professor Janda. And you are familiar with this case?
Professor RICHARD JANDA (McGill University): Well, I've read the case and I've been warning students with it. So I'm happy to have that warning sent across the border.
SIEGEL: Okay. Here is the clause of a contract that was at issue. I'll read it here. “This agreement shall be effective from the date it is made and shall continue in force for a period of five years from the date that it's made, and thereafter for successive five year terms, unless and until terminated by one year prior notice in writing by either party.”
It's the second comma I gather that did it.
Professor JANDA: The second comma did it because, of course, what Rogers was insisting upon was this contract was good for at least five years. And Aliant was saying no we can terminate it upon one year's notice. And then the comma decides it, because if you think that the five year period is an obligatory starting point, the clause ought to read that it's thereafter for successive five year terms unless and until terminated without the comma.
You put the comma in, that suggests that there could be termination after the successive five year terms or before. So that was the basis upon which the commission said, sorry Rogers, there's a $2 million comma here to allows Bell Aliant to terminate the contract even before the five year period.
SIEGEL: What's the lesson you give law students about this case?
Professor JANDA: Well, there are a couple of lessons here. One is to pay attention to grammar and punctuation. But I suppose the more important lesson that I draw from this is that one has to be careful in just importing clauses from prior agreements without understanding that you're getting what you want.
So one can't just reproduce sentences. One has to pay close attention to whether they're serving the purpose you want. There's a last lesson maybe, which is an unusually Canadian lesson. You have to think about two languages and not just one language, at least in our country.
SIEGEL: This is now being appealed and people are pointing, I gather, to the French version.
Professor JANDA: That's right. The reason Rogers is now attempting to resurrect the case is that they claim that the grammatical construction to which the commission came on the basis of the English version doesn't stand up in French and that both versions of the contract are equally valid. What lies behind their argument there is that there's a further statement in the French version after these commas. The commas are placed in the same fashion.
But in the French version, it also says that the termination can happen one year after the expiry of the contract. So they say that clarifies the meaning of this clause that says that you can't engage in termination until the initial contract period has expired.
SIEGEL: So this is a test not only of the use of commas but also of that quality (unintelligible) clarity the French claim their language possesses in great excess over English.
Professor JANDA: Sometimes when lawyers look at the mixing of languages on our side of the border, they think that we have undue complexity and confusion that is introduced by having to think in two languages. Here might be an example of how the second language helps to clarify what the first language botched.
SIEGEL: Well, thank you very much for talking with us about it, Professor Janda.
Professor JANDA: Thank you.
SIEGEL: That's Professor Richard Janda, a professor of law at McGill University in Montréal.
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