Read this clause:
“Subject to the termination provisions of this Agreement, 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.”
How would you interpret it? Aliant argued that either party could terminate the agreement at any time, as long as it gave one year’s written notice. Rogers read it differently and argued that a party could end it only at the end of the fixed five-year terms, by giving notice one year before that term expired.
I found the clause unambiguous. So did the Canadian Radio-television and Telecommunications Commission, or CRTC. In its 2006 decision, the CRTC called the provision “clear and unambiguous.” It ruled that Aliant could terminate the agreement at any time by giving one year’s written notice.
Early termination would cost Rogers an estimated C$1 million over the final year to NB Power. But Rogers “appealled”. They asked the CRTC to review and vary its decision and they won. Wait? What? How?
Because the French-language version of the model agreement was clear:
“Sous réserve des dispositions relatives à la résiliation du présent contrat, ce dernier prend effet à la date de signature. Il demeure en vigueur pour une période de cinq (5) ans, à partir de la date de la signature et il est subséquemment renouvelé pour des périodes successives de cinq (5) années, à moins d’un préavis écrit de résiliation à l’autre partie un an avant l’expi-ration du contrat.”
In English, it translates to [Google Translator]:
“Subject to the provisions relating to the termination of this contract, it shall take effect on the date of signature. It shall remain in force for a period of five (5) years from the date of signature and shall be subsequently renewed for successive periods of five (5) years, unless written notice of termination is given to the other party one year before the expiry of the contract.”
Did the French version simply override the English contract? No. That is not what happened.
The CRTC said this was a regulatory issue, so the relevant question was the regulatory intent behind the model agreement. The English version allowed two possible interpretations. The French version allowed only one, and that interpretation matched Rogers’ reading. The CRTC therefore reversed its earlier interpretation.
Sources:
The Case of the Million-Dollar Comma