LEXPERT MAGAZINE
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AUGUST 2019 3
Jean Cumming
Editor-in-Chief
The Oxford Comma: Love Your Parents First
In Austin v Bell Canada, 2019 ONSC 4757, Justice E.M. Morgan considered the "contractual
significance of an Oxford comma." ere is no need to tell any Lexpert reader what an Oxford
comma looks like. Interpretations of its proper deployment, however, vary widely: there are
style guides that say use it to avoid confusion; while others say use it only if the sentence would
otherwise be patently misinterpreted.
Still other style guide writers say rephrase the sentence to avoid its use entirely. In one ex-
ample, Grammerly suggests rewording, "I love my parents, Lady Gaga and Humpty Dumpty"
to "I love Lady Gaga, Humpty Dumpty and my parents." Seriously, you're prepared to put
your parents at the end of the list rather than add a little comma?!
Lynne Trusse, author of Eats, Shoots & Leaves, the wildly popular treatise on grammar,
told the Globe and Mail "she uses the Oxford comma sparingly, but when she feels like using
it she fights for it. When her editor sought to remove the serial comma from a statement that
punctuation marks 'tell us to slow down, notice this, take a detour, and stop,' Truss 'argued for
that Oxford comma'. It seemed to me that without the comma aer 'detour,' this was a list of
three instructions (the last a double one), not four."
A detour indeed.
Trouble is, when the Oxford comma pops up in a court case in Canada or the U.S., the
contractual scenario is already fraught with argument and confusion needing different tools
of interpretation. In Austin, for example, the court also had to consider the "last antecedent
rule vs. the series qualifier rule".
Or take the Maine case, as reported by CNN at https://www.cnn.com/2018/02/09/us/
dairy-drivers-oxford-comma-case-settlement-trnd/index.html, in which confusion led to a
settlement on overtime pay for three dairy truck drivers. Consider this provision and see if
you can find where the presence of an Oxford comma could have made a difference:
"e canning, processing, preserving, freezing, drying, marketing, storing, packing for
shipment or distribution of:
(1) Agricultural produce;
(2) Meat and fish products; and
(3) Perishable foods."
Reviewing the Canadian comma jurisprudence generally, the court in Austin writes: "De-
spite its frequent use in clarifying the point of a sentence, 'the comma has earned its notoriety
as a troublemaker': Hamilton v Nerbas, 2008 ABQB 674 (CanLII), para 1. Efforts to base
decisions strictly on its presence or absence in a sentence in a contract or legislative provision
have proved fruitless, as that type of grammarian analysis ignores both policy and textual con-
text. In one renowned case, the Canadian Radio and Television Commission reversed itself
in a sequence of rulings, first determining that the presence of a comma in the English version
of a contract clarified the effective date of the contract and then deciding that the absence of
a comma in the French version clarified an altogether different effective date: Telecom Deci-
sion CRTC 2006-45 (July 28, 2006); Hamilton, paras 13-14. e comma, it would seem, can
mean everything or nothing in a sentence, statutory provision, or contractual clause."
Justice Morgan held, "I do not believe it was a legally induced comma." e case is under
appeal; the confusion continues.
EDITORIAL
fortuna favet fortibus
AUGUST 2019
VOLUME 20 NO. 8
EDITOR-IN-CHIEF
Jean Cumming
SENIOR EDITOR
Elizabeth Raymer
ART DIRECTOR
Brianna Freitag
COVER PHOTO
Jackie Brown
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CONSULTANT, STRATEGY
AND BUSINESS DEVELOPMENT
Ivan Ivanovitch
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Steffanie Munroe
PRODUCTION COORDINATOR
Joanne Richardson
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