This post originally appeared as the Quirky Case Column in Advocacy Matters, Fall 2019. This column features a case that is interesting because of its quirkiness. This can include unusual facts, a novel legal issue, or something else that makes it quirky.
Austin v. Bell Canada is a case about the annual indexing provision of a pension plan. This would not normally qualify as interesting let alone quirky if the case did not consider the contractual significance of the sometimes-controversial Oxford comma and, for all the grammar nerds out there, the last antecedent rule vs. the series qualifier rule. I had heard urban legends about a million-dollar comma, but never thought I would have the pleasure of reading a case about one. This particular dispute is about whether the cost of living increase for a pension plan for 2017 should have been 1% or 2%. The amounts for each pensioner were insignificant, but cumulatively it is a comma worth more than a million.
The case turns on basic math, basic grammar and ultimately on the contextual interpretation of the plan document and Justice E.M. Morgan includes a fun survey of divergent views on the significance of the comma in different cases. In the end, the case is also a reminder that precise drafting and grammar are always important.
The parties agreed that the percentage increase for indexing over the previous year was 1.49371% and agreed that the plan required the final number to be rounded to a single digit, but disagreed on the rounding process.
The section of the plan with the troublesome comma provided:
“Pension Index” means the annual percentage increase of the Consumer Price Index, as determined by Statistics Canada, during the [relevant period].
The parties dispute was whether the annual increase should (a) start with the rounded number of 1.5% that was published by Statistics Canada, or (b) start with the number rounded to two digits as mandated in a different section of the plan to 1.49%. Both parties pointed out that the proper interpretation of the provision depends on the importance one ascribes to the comma between the words “Consumer Price Index” and “as determined by Statistics Canada.”
Justice Morgan reviewed comments from some other Canadian courts about the importance of grammar, which include:
- “Canadian courts are ‘rightly cautious of attaching too much significance to a single punctuation mark’”;
- “Punctuation, particularly the comma, is essential to written communication, and judges cannot totally ignore it”; and
- “[T]he comma has earned its notoriety as a troublemaker.”
With respect to the comma, Justice Morgan concluded that:
- “The comma, it would seem, can mean everything or nothing in a sentence, statutory provision, or contractual clause;” and
- “Despite their physically small stature, commas have created controversy in important places.”
The grammar question in this case is whether the phrase at the end of the list modifies only the last item in the list or the entire series of items where the comma appears at the end of the list. There are two competing grammar rules. First, the last antecedent rule holds that the modifier “as determined by Statistics Canada” would apply only to the last item in the preceding sequence if there was no comma preceding it. Second, the series qualifying rule holds that where there is a straightforward, parallel construction that involves all nouns or verbs in a series then a modifier that comes at the end of the list with a comma separating it from the list normally applies to the entire series. The application of these grammar rules results in the phrase “as determined by Statistics Canada” modifying both the “Consumer Price Index” and the “annual percentage increase.”
This was not the end of the matter. Justice Morgan ultimately agreed that the grammar rules were rebutted by the context of the plan and by a reading of the plan as a whole. Justice Morgan considered other sections of the plan that required the Pension Index to be rounded to two decimal places. There was evidence that it was mathematically impossible to need to round the number to two decimal places when starting with a number from Statistics Canada that is rounded to one decimal place.
Justice Morgan concluded “[T]here is no rule of interpretation that would implement a version of the [p]lan that renders it partly meaningless.” More specifically, the words of the contentious section did not reflect a modifying rule for the series of two items that come before it and that it was not intended to apply the Statistics Canada rounding methodology to the calculation of the annual percentage increase in the Consumer Price Index.
Justice Morgan’s final line on this issue was: “It was likely punctuated unconsciously; I do not believe it was a legally induced comma.”