Last August, Twitter was abuzz with commentary regarding the Superior Court ruling in Austin v Bell Canada that considered the placement of a comma in determining the outcome of a contractual dispute.
The issue in dispute was how Bell Canada calculated its yearly cost of living increase for pensioners. The issue in this case was whether the cost of living increase for a pension plan should have been 1% or 2%. While the difference in value was insignificant for each individual class member, the dispute totaled at over $100 million.
In determining this issue, the contract required judicial interpretation, specifically section 1.29. It 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.
The single comma after the words “Consumer Price Index” gave rise to differing interpretations of the provision. The question was whether the phrase at the end of the list (as determined by statistics Canada) modifies only the last item in the list (Consumer Price Index) or the entire series of items where the comma appears at the end of the list (annual percentage increase & Consumer Price Index).
On summary judgment, the motion judge held that while the comma in the section 1.29 of the contract acted as a series modifier, he ultimately rejected its placement as a determining factor, instead holding that the plan needed to be read as a whole. He concluded that if the correct grammatical interpretation of the comma was applied, it would render meaningless another provision within the plan, section 8.7(iv). The motion judge therefore found in favour of Bell.
The Court of Appeal has now weighed in on the matter and affirmed the contractual significance of the comma and reversed the ruling on summary judgment, finding in favour of the appellants.
The Court of Appeal rejected this decision and found that the motion judge made a palpable and overriding error of fact as he had ignored uncontradicted evidence that clearly gave meaning to the provision in dispute. Ultimately, the court held that the plain grammatical reading of section 1.29 was readily reconcilable with section 8.7(iv) and therefore the plain grammatical reading should be followed. The Court of Appeal set aside the summary judgment dismissing the action and in its place awarded summary judgment in favour of the appellants.
Takeaway – Punctuation Matters
- The last antecedent rule holds that qualifying words or phrases refer to the language immediately preceding the qualifier.
- The series qualifier rule holds that where there is a straightforward, parallel construction that involves all nouns or verbs in a series, then the modifier that comes at the end of the list with a comma separating it from the list normally applies to the entire series.