Thursday 20 May 2010

Can the wireless firm be responsible for the divorce of a subscriber?

A Toronto woman is suing Rogers Wireless Inc for $600,000 for negligence and breach of contract for ruining her marriage. Gabriella Nagy, who had subscribed to Rogers wireless services, requested her billing be addressed to her family home under her maiden name. When her husband ordered additional services — internet and cable television — from Rogers in June 2007, Rogers without contacting Ms. Nagy who had an account with Rogers separate from that of her husband, bundled her billing with her husband’s billing.

Ms. Nagy’s husband now in possession of her billings; discovered his wife’s infidelity when he saw hours-long conversations with a particular phone number and confronted Nagy who confessed to the infidelity. The two are now separated. She says that Rogers breached the duty of reasonable care by acting in a manner below the standard of conduct expected from a wireless firm such as Rogers.

In documents filed on behalf of the defence, Rogers states “The marriage break-up apparently resulted from the fact the plaintiff was having an extramarital affair and Rogers is not responsible for the plaintiff’s affair or its consequences.

That is partly true. Rogers is not responsible for Ms. Nagy’s affair but whether it is responsible for the consequences she suffered from the breakup of her marriage may be another matter.

A breach of contract is an actionable wrong which justifies a claim for damages that aims to put Ms. Nagy in the position she would have been in had the contract been performed the way it was originally set up. In this particular case, the contract was set up between Ms. Nagy and Rogers that she would have a separate account from that of her husband. Her original position would have been that her husband would not have known about her affair with another man.

An award would normally put Ms. Nagy in the position she would have been in had rogers fully performed its contractual obligations properly as per the contract between the parties. Unfortunately for Ms. Nagy, no amount of an award for damages can ever put her in the position she was in as far as the relationship she had with her husband prior to the breach of contract brought about solely by Rogers. It would be as futile as trying to un-ring a bell.

Lord Diplock in Photo Production Ltd. v. Securicor Transport Ltd., a 1980 case heard in England, set out the test for determining a fundamental breach of contract. He said;

"A fundamental breach occurs where the event resulting from the failure by one party to perform a primary obligation has the effect of depriving the other party of substantially the whole benefit which was the intention of the parties that he or she should obtain from the contract." unquote

In the case of Nagy v. Rogers, the ‘whole benefit’ that Ms. Nagy was entitled to, included her right to privacy. She had every right to believe that if her account with Rogers was in her name only and the bill would be sent to her and no one else, then her privacy would be intact. By bundling her account with that of her husband’s account literally breached the primary obligation Rogers was supposed to give Ms. Nagy, that is, to keep her privacy intact.

The fundamental aspect of the contract between Ms. Nagy and Rogers goes to the root of the contract; a separate billing mailed only to her and no one else. She had the right to presume that whatever was in her billing was for her eyes only and no one else’s and certainly not for her husband’s eyes.

Rogers on its own initiative chose to suggest to her husband who was paying not only for his own wireless but also for the family TV, that it would be easier for Rogers to combine both Mr. Nagy’s account with that of his wife’s account because in doing so, it would mean one less billing being mailed to the same address. As an incentive, it would cost Mr. Nagy less money for his account and also for Ms. Nagy’s account. That is true but obviously, Rogers didn’t foresee the consequences that Ms. Nagy would suffer from if her husband would later be privy to what was in Ms. Nagy’s billings.

Not foreseeing the consequences of one’s actions is not considered an excuse when breaching a contract by one party whose action is negligent. And negligent Rogers was. In breaching its contract with Ms. Nagy, Rogers in effect, repudiated the contract. She had every right to cancel her contract with Rogers since the breach was brought about by Rogers and not her.

In Managen Project Management Ltd. v. Travelers Indemnity Co. of Canada, a case heard in 1991 by the Alberta Court of Queen’s Bench, the judge said in part;

“A fundamental term is a term which goes to the root of the contract so that a breach of it entitles the innocent party to treat the contract as repudiated, and a fundamental breach is a breach of sufficient gravity to entitle the innocent party to do likewise. The term is of such a nature that it goes to the core of the contract and without this term, there is nothing left for one of the contracting parties to perform.” unquote

Although there was nothing in the contract that guaranteed that Ms. Nagy’s separate billing would not be opened by her husband, there was however, an implied undertaking on the part of Rogers that at the very least, her billing would be addressed to her and not to her husband.

There is never an excuse for negligence that would be acceptable to anyone who is a victim of negligence by someone else. A party to a contract or agreement is liable for any injuries caused or contributed to by his or her negligence. Injuries can include a break-up in marriage or embarrassment at work; consequences that Ms. Nagy is stating were brought about by Roger’s negligence.

There is no doubt in my mind that someone in Rogers was extremely negligent in bundling the two accounts together without first consulting with Ms. Nagy. It that employee had consulted with Ms. Nagy, she would have told that person that the billing was to continue being sent to her and her only.

Imagine if you will, a doctor sending a woman’s medical report to her husband without her consent. Such an action would be an invasion of her privacy. Is a wireless company sending its customer’s billing to her spouse any less an invasion of her privacy? I think not.

Now as to damages, I doubt that she will receive damages for the breakup between her and her husband. To prove justification for damages, she would have to show that Rogers foresaw the consequences of its actions. There is no way that Rogers would presume or even suspect that Mr. Nagy would suddenly be made aware that by looking at his wife’ billing, she was cheating on him. If the employee of Rogers, (in deciding to bundle the two billings into one) thought to himself, ‘Oh. Wait until he sees what she’s been doing. I will bundle the two billings into one and send them to him only. Then the fur will fly’ then the employee would have acted with malice and that kind of negligence would be unforgivable.

Unfortunately, the fact that Ms. Nagy was having an affair with another man is evidence that her marriage with her husband was already on the rocks. Even if he didn’t discover the existence of the affair, there is no way of ascertaining as to when or if the marriage would have come to an end.

Her allegations against Rogers assume the existence of a private law duty of care which is predicated on the existence of a relationship of proximity between the parties as well as on the requirement of foreseeability. Apart from the inferences to be obtained from the particulars of negligence pleaded, the principal allegations that might have been directed at the existence of a private law duty of care appear to be that her privacy was invaded by her husband brought about by the negligence of Rogers.

It is not enough for Rogers to defend itself by saying that it did not directly cause the breakup between the Nagy’s. It must also show that it was not complicit in the invasion of her privacy which later caused her embarrassment at her work. That is a large hurdle that Rogers must get over. I am not sure that they can do that. Of course, if her embarrassment at work was brought about because of publicity of this case which she brought about by herself, then she would have contributed to her own problem at work.

A proximate cause is one that in a natural and continuous sequence, unbroken by any efficient intervening event, produces injury to another person. A judge hearing a case like this one will have to consider the issue of proximity in the context of statutory duties owed to the public. In other words, the judge must ask himself this rhetorical question, “Would I want my wireless billing to be shared with my spouse when I specifically told the wireless company to bill me separately?”

Of course, Rogers can bring in a motion for summary judgment asking the court to dismiss Ms. Nagy’s claim on the basis that it has no merit or even for that matter, recognition in law. Such a motion may be dismissed however.

In Hunt v. Carey, a case heard in 1990 by the Supreme Court of Canada, Mr. Justice Wilson suggested;

“…where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society.” unquote

If Rogers continues to pooh pooh this unfortunate woman’s claim based on the statement that it did no wrong, then it will get about as much sympathy by the public that krill gets from whales.

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