Grammar seems to be a lost art these days. Rules of grammar and drafting often do not mean anything, if only because neither the writer nor the reader knows what the rules are. This writer is often asked to opine on various clauses in an agreement and, in some cases, throws up his hands in disgust, noting that the clauses are so badly drafted that no one would know what they mean. This can be a problem when an agreement is being interpreted in court, particularly if a lot of money rides on the interpretation. This is exactly what happened in Austin v. Bell Canada 2019 ONSC 4757. The entire decision revolved around the insertion of a comma.
A Bell Canada (“Bell“) retiree was the representative plaintiff in a class action. He claimed that his pension, and those of 35,000 other pensioners, should be calculated for 2017 with a 2%, rather than a 1%, increase over the 2016 pension. Of course, this difference would affect the 2018 and subsequent pension amounts because each increase is piggybacked on the previous year’s pension amount. That lowly 1% difference could have cost the Bell pension plan up to $130 million. The dispute revolved around the interpretation of one clause in the pension plan’s constating documents (the “Plan“).
The plaintiff brought a certification motion and the defendant brought a motion for summary judgment. In effect, both the plaintiff and the defendant agreed that the class should be certified. As the plaintiff put it, “it is not feasible, economical or fair to require 35,000 individual proceedings to determine the same issue.” The judge agreed and certified the class. He then dealt with the real dispute, the calculation of the pension increase.
The parties each calculated the indexing factor based on the Consumer Price Index, agreeing that the percentage increase over 2016 was 1.49371%. They disagreed as to how that factor was to be rounded.
Statistics Canada, in publishing its Consumer Price Index, rounded it to one decimal place, resulting in a percentage increase of 1.5%. Bell rounded it to 2 decimal places. In doing so, it relied on s. 8.7(iv) of the Plan which provided that “All percentage increases shall be rounded to the nearest 2 decimal points…” This resulted in a percentage increase of 1.49%. The plaintiff and defendant then rounded their numbers to the nearest whole number as mandated by s. 8.7 of the Plan. The plaintiff properly rounded 1.5% up to 2% and Bell properly rounded 1.49% down to 1%.
The reference to the Consumer Price Index arose from the wording of s. 1.29 of the Plan, which stated:
“Pension Index” means the annual percentage increase of the Consumer Price Index, as determined by Statistics Canada, during the period of November 1 to October 31 immediately preceding the date of the pension increase.”
Note the comma after “Index” and before “as determined” in the definition. The interpretation question was whether the Statistics Canada determination should apply to the calculation of the Consumer Price Index only (i.e. based on statistical data) or to both the determination of the Consumer Price Index and its annual percentage increase (i.e. based not only on statistical data, but its choice of presenting the data by rounding to one decimal place). If it applied to both, then the plaintiff, who used the Statistics Canada 1.5% figure, would be successful; if it applied only to the determination of the Consumer Price Index, then Bell, who used the 1.49% figure, would be successful.
The plaintiff relied on the “last antecedent rule.” Under it, when there is a straightforward, parallel construction that involves all nouns or verbs in series, a modifier that comes at the end of the list with a comma separating it from the list normally applies to the entire series. Using that rule, Statistics Canada would “determine” not only the Consumer Price Index, it would also determine the annual percentage increase of it.
Bell submitted, correctly, that, in modern interpretation cases, one has to refer to the entire document to ensure that the interpretation of a particular term is contextual.
To show that context, Bell pointed to s. 8.7(ii)(a) of the Plan noting that, for pensioners aged 65 and older, the rate of indexation is the greater of (i) the Pension Index calculated under s. 1.29 rounded to the nearest whole number as required by s. 8.7(iv) and (ii) 60% of the Pension Index rounded to 2 decimal places under s. 8.7(ii). Why was this important? Because Bell provided expert actuarial evidence noting that if, as the plaintiff contended, the Pension Index were only rounded to one decimal place, it was mathematically impossible for the calculation under s. 8.7(ii) to have 3 or more decimal places and, if that were the case, why would the section call for a rounding to 2 decimal places. Conversely, if the Pension Index were rounded to 2 decimal places, the s. 8.7(ii) calculation would yield 3 or more decimal places and would need rounding.
That was enough for the judge to determine that, in the context of the entire agreement, the Bell interpretation was the better one. He noted, “It is not possible to surmise that the drafters of the Plan went to all that trouble and detail only to have the entire exercise rendered meaningless by deferral to Statistics Canada’s method of rounding when doing the initial Pension Index calculation under s. 1.29 of the Plan.” He determined that this interpretation was the only way to make sense of the combination of s. 1.29 and s. 8.7 of the Plan.
The judge also stated the following regarding the actual drafting of s. 1.29:
“I do not know why s. 1.29 is phrased in the awkward way that it is. I certainly do not know why a comma had to be inserted before the modifying phrase “as determined by Statistics Canada”. It was not necessary, since that modifier applies only to the CPI which is the last antecedent before the modifying clause. It was likely punctuated that way unconsciously; I do not believe it was a legally induced comma.”
This is the closest that we have seen any judge articulate our contention that many agreements are simply drafted improperly.
When a lot of money is at stake, no holds are barred and legal fees are not constrained. Bell’s counsel requested fees on a partial indemnity basis at $221,000 and on a full indemnity basis at $369,000 – and, we gather from the reasons, Bell’s counsel had actually charged fees to Bell below what they would normally charge. Had only one pensioner (i.e. $3,909.00) been involved, the costs would have been minuscule in comparison.
The plaintiff attempted to reduce the award of costs by arguing that the class action was brought in the public interest. The judge stated that the public interest was not present in this action; the case entailed no broad issue of principle.
The judge accounted for the fact that the awarded costs were to be paid by the Class Proceedings Fund. He had an overall concern that the Fund not have its resources depleted any more than necessary because it represented a positive contribution of the province’s lawyers to the problem of access to justice. The judge awarded costs of $200,000 plus HST and disbursements of $45,000.
Image courtesy of PDPics.
Written by Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.