>> Sentenced to pay – by a sentence

Sentenced to pay – by a sentence

By Judge Mark P. Painter

My last column discussed precision in legal drafting. I didn’t have this great example then.

Punctuation matters. If we needed reminding, a recent Canadian case surely makes the point – a $2 million point, all turning on the interpretation of one comma in one sentence.

My friends on an international plain-language listserv and Cincinnati lawyer John Fisher III sent me the details.

A costly comma

Rogers Communications, a cable company, and Aliant Inc., a telecommunications company, signed a contract. Rogers thought that Aliant had agreed to let Rogers string its cables on Aliant poles across the Maritime Provinces of Canada for $9.60 (Can.) a pole. Seems simple enough. But one sentence proved troublesome.

The disputed sentence: “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 by either party.”

Of course, the dreaded parenthetical numericals should be forever banned (see Rule 6), and the “unless and until” is a needless couplet (see Rule 21). But there are worse problems.

How many years?

Rogers believed it had a deal for five years certain, then an automatic renewal for consecutive five-year terms, unless one party notified the other, at least one year before a five-year term was to start, that it wanted to terminate. At first blush, that seems like a reasonable interpretation.

But Aliant sent a termination notice after one year. It then offered to make a new deal, at $28 a pole. The difference over five years was $2.13 million Canadian, almost $2 million in US dollars.

The people at Rogers, on receiving the termination notice, probably had a conniption. Rogers appealed to the body having jurisdiction over the dispute, the

Canadian Radio-Television and Telecommunications Commission (CRTC).

Clear and unambiguous

Rogers asserted that the meaning was clear – that there was a definite term of five years. And it said that this was clearly the parties’ intent. Aliant countered that the plain meaning of the contract supported its construction, and thus there was no need to go further – parol evidence of intent is inadmissible if the language is clear.

The Commission held for Aliant: “the wording . . . is clear and unambiguous. The Commission notes that based on the rules of punctuation, the comma placed before the phrase ‘unless and until terminated by one year prior notice in writing by either party’ means that that phrase qualifies both the phrases ‘[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 the phrase ‘and thereafter for successive five (5) year terms.’ “

Further, “the phrase ‘unless and until terminated by one year prior notice in writing by either party’ does not specify any triggering event from which to give notice. The Commission agrees with Aliant Telecom that had the intention been to limit the right to terminate to the end of the current and any renewal term of the SSA, clear wording would have been included specifying by what date the notice was required.”

Thus Aliant could terminate the agreement “at any time, without cause, after providing one year’s prior written notice to Rogers. And the agreement terminated on 1 February 2006, one year following the date of written notice of termination to Rogers.”

You can find the decision at:
www.crtc. gc.ca/archive/ENG/Decisions/2006/dt2006-45.htm

The lesson

Precision matters in contract drafting, as in all legal writing. The drafter here could have avoided the problem by either adding one semicolon or subtracting one comma. Substituting a semicolon for the first comma or deleting the last comma would probably have worked, but it would still have been poorly drafted.

Look at the original again. Here is my revision:

This agreement is for five years. After the first term: (1) it shall automatically renew for consecutive five-year terms; (2) either party may terminate the agreement by notifying the other at least one year before a new term begins.

Shorter and, I hope, clearer. And many of you might think of better ways. The point is that it’s important to remove any ambiguity.

A new motion

After reading my article on Spellcheck mistakes, Cincinnati lawyer Tim Burke sent me another. But this one resulted from dictation to a new secretary. He saw that he was about to file something called a Motion for Some Other Judgment. Obviously, summary judgment was intended. Tim said that even though many of us have often wished we could file the former, he couldn’t find it in the Civil Rules.


I always show the readability scores for the column. Statistics for this column (excepting the quotes): 13 words per sentence, 5 percent passive voice, and grade level 9.8.


Mark Painter has served as a judge on the Ohio First District Court of Appeals for 11 years, after 13 years on the Hamilton County Municipal Court. Judge Painter is the author of The Legal Writer: 40 Rules for the Art of Legal Writing. It is available from http://books. lawyersweekly .com. Judge Painter has given dozens of seminars on legal writing. Contact him through his website, www.judge painter.org.