Rogers’ legal team in the Small Claims Court action of
Susan G. Drummond v. Rogers Wireless Inc (SC-05-24969-00)
In House Counsel
Vice President Vice President
General Counsel Associate General Counsel
Rogers Communications Inc. Rogers Communications Inc.
28 years of practice 20 years of practice
Partner, Lang Michener, LLP Chair, Commercial Litigation Group
34 years of practice Partner, Lang Michener, LLP
4 years of practice 3 years of practice
From badminton partner to rugby team
(Amended February 28, 2007)
When I was a kid, I used to play badminton like a maniac, training 5 hours a day, five days a week. For what it's worth, I was ranked pretty high at a national level.
It's a delightful game; so genteel. All of us dressed in pristine whites. When I was a player, the standard woman's uniform had us in frilly panties under crisply pleated skirts. Such a deceptively feminine and delicate sport it was. Even when a player was hot and had strategically and ploddingly opened up the opponent for the ultimate shot - a killer slam directed squarely at the solar plexus - even when the deadly projectile hit its stinging mark and for a fleeting moment caused a lifetime to pass under protectively closed eyelids, it swiftly fell away, dead bird that it was, and revealed itself to be a feather-light joke of outrageous fortune. Such a hilarious and delightful game.
Where I used to train, with few exceptions the boys and men headed off to the squash courts and the girls and women to the badminton courts. I've tried both, and I know for a certainty that badminton is the more rigorous sport, far more demanding aerobically as there is a full court that must be covered anew at virtually every second shot. The drop and net shots are not employed as sly twists on a more routine whacking game - which place these shots assume more commonly in squash and tennis. Brisk activity around the net, followed by an all out rush to the back of the court in response to an underhand clear, are as much part of the essential repertoire in badminton as the cross-court clear and slam. So although badminton’s aura (in the West, I should add) may be feminine, I have always found the game to provide the most demanding workout and conditioning of all the racquet sports. The frilly panties just add to the delicately deceptive feminine mystique.
In the beginning, I thought Rogers and I were playing something like badminton - a one-on-one, or two-on-two sport. It may have started like that. But then Rogers started adding a rugby team to the game.
The Expanding Rugby Team
When Rogers Wireless Inc shut off my 12 year old son’s cell phone just before he took the Toronto Subway for the first time in his life, within days I had embarked upon my first formal legal dispute with Rogers. Assuming that the suspension of wireless services to my son’s cell phone was related to the theft of my cell phone and the over $14,000 of charges that Rogers was claiming that I owed the corporation, I immediately began to dispute Rogers actions.
On September 3, 2006 I began sending a flurry of letters to Rogers’ Customer Complaints Department, then Roger’ Legal Department, and then the legal clerk assigned to my case asking why on earth Rogers had seen fit to shut my 12 year old son’s cell phone off just days before he rode the subway alone for the first time in his life – and a full 8 days before my invoice was even due. My son’s cell phone, afterall, had never been lost or stolen.
The assignment of a law clerk to deal with matters relating to Noah’s cell phone coincided with my attempts, as per the contract, to dispute the $14,000 charges.
So Rogers’ first line of defence was a law clerk.
To respond to the plaintiff’s claim that I submitted on September 19, 2005, Rogers’ legal department farmed out the legal work to an outside firm, Lang Michener, LLP. Lang Michener assigned a recent graduate from Queen’s law school to handle my case.
In the culture of the legal profession, Small Claims Court work is generally considered to be below the competencies of lawyers who have been called to the bar. After all, the majority of parties are self-represented. Even a first year law student will be better armed than most parties that appear before a Small Claims Court judge. Small Claims Court work presents a bit of an embarrassment of arms for the qualified lawyer.
For this reason, the Small Claims Court work that comes the way of a big Bay Street law firm like Lang Michener, LLP is typically handled by articling students who may not yet have had an opportunity to flex the legal skills they spent three years acquiring at law school.
In my case, the file got assigned to a young associate at Lang Michener who had just graduated from Queen’s University Law School two years earlier. I can imagine that an associate at a big Bay Street law firm might feel that he or she has been demoted in being assigned to a Small Claims Court file.
I became aware that both Graeme H. McPhail and David P. Miller (VP General Counsel) are also involved in the case of Drummond v. Rogers (SC-05-24969-00) because when I told the young associate as I handed him my amended pleadings on March 3, 2006, that I had entered Rogers’ October 14, 2006 “Offer of Settlement” into my amended pleadings as an exhibit, making it part of the court record and also available to the public, he had quite an reaction.
“You did what?!?” he asked.
I explained that in my opinion Rogers’ October 14, 2005 “Offer of Settlement”, which is ordinarily excluded as evidence from the trial judge’s perusal, had become relevant as evidence to my claim for punitive damages. Part of the criteria for a finding of punitive damages is that the Defendant attempted to coerce the Plaintiff into accepting an unfair offer of settlement. I had to submit proof that Rogers had done so.
The young associate told me that he was going to take my amended pleadings and head directly to Graeme McPhail and David Miller and the Rogers team would immediately get a motion to strike the “Offer of Settlement” from the record.
I had been aware that Graeme McPhail was involved on the file as I had been sending legal documents to him.
“Who’s David Miller?” I asked.
The associate told me that David Miller was the VP General Counsel at Rogers and with Graeme McPhail and himself, the three of them were working together on my Small Claims Court case.
Bringing in the big guns
Rogers eventually decided "the heck with our embarrassment of arms". As the thorn resisted being extracted from their side, they decided to start escalating their attack.
The next Lang Michener lawyer assigned to handle my dispute with Rogers, Donald Plumley, QC, was a partner at Lang Michener with 34 years of practice under his belt. He was a Queen's Counsel, no less. He joined the legal team in July of 2006 to tell me that if I was determined to summons Mr. Rogers to testify in the case, then I could serve the summons through his offices … and he would immediate move to have it quashed.
Angus left Lang Michener, LLP at the end of September, 2006. While Angus was a newly minted lawyer, with only three years of legal practice under his belt, his replacement assigned to my case, Joseph C. D'Angelo, is a partner at Lang Michener, the head of Lang Michener's commercial litigation group, and a lawyer with 18 years of practice under his belt.
Joe D'Angelo marshalled Rogers' defence through a motion for summary judgment, which Rogers lost.
Then Joe D'Angelo ran into scheduling difficulties and, for the next legal steps in my legal dispute with Rogers (motion by me for production of documents, motion by Rogers to quash my summons of Ted Rogers, motion by me to amend my pleadings) another associate was inserted in his place: Shane Hardy, a Dalhousie grad with five years of litigation practice under his belt.
Unlike the self-represented party, Rogers lawyers are fungible; one Lang Michener lawyer can be swiftly replaced with another for the drafting of materials and the pleading of claims. This gives Rogers a decided advantage against the self-represented party who is uniquely positioned to understand the merits of his or her case and who cannot easily find a replacement for representation in court on motions or for last minute drafting. This is merely one of the features of an intricate imbalance of legal resources between the typically self-represented parties in small claims court and a corporation with Bay Street legal counsel.
There have also been at least four articling students working on my file in small claims court. At a minimum, I know this because three of them have been dispatched to turn up at my door to serve me with legal documents. One of them swore one of Rogers' affidavits. I watched one of them sit stoically for two hours in his stiff business suit in the uncomfortable chairs in the waiting area of small claims court to file the documents he had served on me the day before. I was there for the same interminable purpose - though I had served Rogers that morning. And the fourth sat through my trial against Rogers Wireless and was part of the intense srummage at every break with the pleadings and motions lawyer.
And Rogers got fulled suited up for the February 20 & 22, 2007 trial.