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That's History: Eats, shoots, and lawyers

|Written By Christopher Moore

They are calling it the telecomma case. A $1-million spat over comma placement in a contract has again focused attention on the crucial importance of clarity in the drafting of laws and contracts.

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In 2002, telcos Rogers Communications Inc. and Aliant Inc. signed a contract, part of which 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.”

So could Aliant give notice to terminate during the first five-year period? Rogers says it could not. Aliant said it could, and it did. It all hangs on the significance of the comma before the last phrase. Now they are in litigation.

Legal scholars and aficionados of usage around the world are weighing in. Lynne Truss, author of Eats, Shoots & Leaves and perhaps the world’s only celebrity grammarian, thinks Aliant’s reading has merit. She suggests Rogers should have held out for a semi-colon.

It’s not hard to imagine the satisfied harrumphing this spat must be inspiring among lawyers of a certain age. “Could not have happened in my day! We assumed a lawyer would know some grammar. Law schools today, what do they teach, anyway?”

Actually, an identical uncertainty about comma usage occurred as long ago as 1822. In that year, Upper Canada’s new Law Society Act authorized the law society to call to the bar “any person having being duly called to practise at the Bar of any of His Majesty’s Superior Courts . . . in England, Scotland, or Ireland, or in any of His Majesty’s Provinces in North America, in which the same privilege would be extended to Barristers from this province.”

Was Upper Canada intending this reciprocity requirement to apply to the Inns of Court of England - or only to the bars of His Majesty’s provinces in North America? Just as in the Rogers-Aliant affair, the meaning depended on whether the last phrase modified the whole sentence or only the nearest part of it.

No one knew for sure. But some Ontario lawyers went to London and tried to get admitted to the Inns of Court on the strength of this statute and their Ontario call. The Inns rebuffed them. But the issue was never litigated, so Ontario’s line of jurisprudence on comma interpretation is sadly foreshortened.

An arbitrary end to this problem was imposed in 1859, when Ontario published the Consolidated Statutes of Upper Canada. The editors silently interpreted the law simply by re-paragraphing it. The republished law said the reciprocity rule applied to persons called to practice

 “at the Bar of any of His Majesty’s Superior Courts . . . in England, Scotland, or Ireland,

or in any of His Majesty’s Provinces in North America, in which the same privilege would be extended to Barristers from this province.”

The new paragraphing made the law certain. Only in 1885 did an Ontario law establish (or re-establish) the law society’s right to insist on reciprocity from the English bar as well as from those of other Canadian provinces.

Fowler’s English Usage declares the hallmark of proper usage is that “the words used must . . . actually yield on scrutiny the desired sense.” I would have thought lawyers would have this same aspiration for contracts and statutes: that the words should say what they mean, clearly and plainly.

But it need not always be the case. A recent proposal suggests that lawyers may at times have a certain interest in ambiguity, at least when it comes to legislation. Some lawyers and copyright scholars have been lobbying Ottawa to put even more vagueness into the arcana of copyright law. Ottawa practitioner Howard Knopf recently published a call for copyright law amendments that would confirm that fair-dealing exceptions in copyright law “are examples only and are not an exclusive list.”

One might think that clarity about such exemptions would be useful to both users and rights holders. But the Supreme Court has endorsed “large and liberal” interpretation of the statute as currently written and Knopf, a users’ rights advocate, sees even more legislative vagueness in the wording of the law as an encouragement to further judicial widening of this defence.

That’s not to suggest the Aliant people actually wanted a trapdoor in their contract. But much of what judges do, after all, is determine the meaning of agreements and statutes. Too much clarity in the laws, and lawyers and judges might have less to do.

Think about where you place those commas.


Christopher Moore is the author of McCarthy Tétrault (2005) and other works in legal history. His web site is  www.christophermoore.ca

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