In Austin v Bell Canada, 2019 ONSC 4757, Justice E.M. Morgan considered the “contractual significance of an Oxford comma.” There 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 example, 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 Truss, 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 after ‘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:
“The 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: “Despite 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 context. 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 Decision CRTC 2006-45 ( July 28, 2006); Hamilton, paras 13-14. The 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.” The case is under appeal; the confusion continues.