said by Snickerdo3:You miss the point entirely. You don't need to call in first if they levy an ECF.
That may or not be true, IMO. At best it'll be sticky and cx will win. At (unexpected!) worst cx will lose and have to pay ECF - explained more more.
The fact that the contract has been changed is enough to make the contract - and in turn the ability to charge an ECF - void.
+concur
You don't have to tell Rogers beforehand.
IMO this is the part that's in a grey area.
Here's how I'd speculate it would be arbitrated (since, officially, arbitration is the only 'legal' remedy available to many cx's to resolve disputes - see Rogers' ToS s.34 & s.35 (elsewhere it's been incorrectly identified as s.33 & s.34).
If Rogers breaches (or notifies cx of Rogers' [intent] to breach) the original contract then can the breached party just start implementing a remedy of their choosing or should the cx attempt to first negotiate some remedy with Rogers first?
Cx /may/ be able to do the latter, but if it came to a poopfight it sure looks better on the cx if they can evince that they tried to negotiate a remedy with Rogers versus just unilaterally implementing one of their own choosing.
The reason that, IMO, one needs to (or simply should) speak to Rogers about the remedy you might seek (ECF@$0) in advance of porting out is this:
- Rogers has 2 things they can give you to 100% remedy/compensate this impending breach (via changed local calling areas)
--A) Cda-wide L/D @ $0/mo for contract term, or
--B) Cancel @ ECF=$0
If Rogers never offers remedy A then you have right to effect remedy B and be caused as little hardship or inconvenience as possible in its implementation because Rogers is attempting to modify the contract mid-term without your consent (impending breach).
If Rogers offers remedy A then you /may/ have no right to 'escalate' to remedy B, since remedy A ostensibly covers all possible negative impacts of the impending breach. Grey area there too, IMO.
But if you *unilaterally* implement remedy B Rogers can come back and say "Hey, wait a sec, we'd have offered the cx remedy A if they had only given us a chance to work this out".
This /might/ move your rightfulness (to ECF=$0 + PORT number) from being a clearly-white case area into a grey area.
Then again it's Rogers who are attempting to unilaterally change contract so you may not 'owe' them any opportunity to present a choice of remedies and may have the unequivocal right to unilaterally seek a fair and reasonable remedy of your own choosing.
Note that remedy B is provided per the CWTA CoC - not officially part of contract but a cx can, IMO, reasonably argue they read that and knew that right and so then perhaps they can unilaterally implemented it without notice or negotiation with Rogers, in advance of implementation. CoC says nothing of the matter of porting numbers, nor of the customer having to give advance notice to Rogers of that (cancel @ ECF=$0) being a remedy they would seek.
(In the end *appearing* to have made all reasonable attempts to negotiate a solution just plain *looks good* on any party to a disputed or breached contract, if it goes to be 'judged' or adjudicated thereupon. Appearances /do/ matter.)
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So here's how I would tackle things if I were to want to cancel @ ECF=$0 *and* want to PORT my number, too.
##1) Contract Rogers and get confirmation that they agree you have the right to cancel @ ECF=$0 due to (impending) breach of contract. Tell rep thank you for the info, you need to think about it before you make any final decision about what you want to do here. Avoid talking about $0/mo L/D freebies or simply say you don't that suitable and see if rep will then get back to talking about cancel @ ECF=$0 as the correct remedy for *you*. Have the rep note on your account that cancel@ECF=$0 was discussed with cx and offered AND HAVE THE REP READ YOU BACK THEIR NOTES before ending the call.
If Rogers' rep says *nothing* about Rogers not-gonna-let-you-port-number-if-you-cancel@ECF=$0 during the call, perfect.
If Rogers' rep *does* says something about Rogers not-gonna-let-you-port-number during the call disagree with the rep ("I'd like to have it noted that I formally dispute Rogers' claim that I have no right to porting my number if I cancel @ECF=$0 due to Rogers' impending contractual breach").
Record the call if possible, or have someone else on the line listening in (someone who would appear at an arbitration hearing if necessary). Have them make notes on the substance of the call when it's done, right away. You too, make notes.
##2) So then you call the new carrier and initiate the porting process. Maybe call late in the day ... you're wanting to stage your actions here, carefully, one after the other.
By the end of the call you are now legally bound to a new contract with new carrier, and you entered that new contract on the predicate that you can port your number.
Ask rep of new_carrier when Rogers will be notified about Rogers losing that number. Rep probably won't know with certainty but ask anyway.
Record call, etc.
##3) Next day contract Rogers and implement the cancel @ ECF=$0, effective, say, 7 days hence (i.e. 1 or 2 days after the PORTING should have taken effect ... how long does a port take to become implemented, anyway?). Indicate that you have entered a new contract with another carrier and that your number with Rogers shall be ported to new carrier and this whole process is already a fait accompli - you cannot undo your new contract nor can you undo the port request. The die is cast.
Rogers will bleat "Waaaaaaaahhhhhhhh, you can't do that [PORTING of number]". Ask them why not. They'll mumble and bumble some response (if they say that's what it says in their memo tell them you laugh at, point at and mock their memo ; ) Tell them either a)you were never told you couldn't do that (in conjunction with cancel @ ECF=$0) or b)(if you were told that you can't) that you dispute that Rogers has the right to *prevent* you porting the number. (Don't lie!)
Tell them you are moving away from Rogers because of their (impending) breach and that you believe that you should be harmed or inconvenienced AS LITTLE AS POSSIBLE as you seek to implement a remedy to this breach - that means you keep the number since losing the number amounts to harm or inconvenience to you.
AIUI there are no stipulations re porting under normal cancellation terms (i.e. if a customer is under contract normally cx would just pay ECF if they PORTED away from Rogers).
Regular rules (restrictions of the contract) don't apply here (e.g. paying ECF), because of *Rogers' impending breach*. Evidence of this is that Rogers will try (or prefer) to implement the cancellation right away which is not something for which the ToS would normally provide (normally you have to give Rog 30 days notice, or Rog has to give you 30 days notice [ToS s.31], in addition to the waiving of all ECF fees ... so we have definitely exceptional circumstances here which Rogers obviously recognizes this based on their willingness to cancel @ notice=0 days *AND* ECF=$0.
YOU DO NOT LOSE YOUR INHERENT RIGHT TO PORT YOUR NUMBER SIMPLY BECAUSE ROGERS IS ABOUT TO BREACH CONTRACT AND YOU ARE RESPONDING TO SAID BREACH BY INVOKING YOUR RIGHT TO CANCEL CONTRACT @ ECF=$0 (i.e. IN RESPONSE TO THIS IMPENDING BREACH)!
IMO, anyway.
Rogers may 'try' to implement the cancel that very day (and lock or hold your phone number or prevent it from becoming ported) BUT DON'T LET THEM. If they're willing to let you cancel with as little as 0 days notice at your request then it's reasonable for *you* to want that cancel to become implemented 7 or whatever reasonable number of days ahead that are needed for the PORT-number request to consummate. Since it's Rogers who are breaching it is *YOU* who gets to pick the cancel date, not them. You call the shots here, not Rogers. Roger is the bad (breaching) party in the contract - they're the ones trying to breach. You are entitled to implement your reasonable exit or remedy without Rogers impairing or impeding your seeking this remedy, or causing you any other inconvenience or hardship as you implement this REMEDY TO ROGERS' CONTRACTUAL BREACH.
Rogers may say they can't have the cancel take effect in 7 or whatever. Say "Fine Rogers, do nothing about my account today and I'll call in in 7 days (or within a day or 2 of the PORT having been consummated) to have the cancel take effect that given day." ... just like Rogers would let you have it take effect that day that you're talking to them about all this.
Have all this noted on your account, have rep read back notes, record call, make your own notes, get rep's name and operator ID and call reference number ... and hat size too if you can ; )
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But it may be a stinkfight. If Rogers is not cooperative then say that you'd like to formally initiate a request for arbitration on the matter. If the rep says you have to *mail* notice to them for such a request ask the rep where in the ToS it says that - it doesn't. In fact the ToS indicate that you can contact rogers via *611, 888-ROGERS-1, etc. Note that s.41 of ToS *does* say that notices of "claim" need to be mailed to 333 Bloor but I would think that a request to have a dispute resolved by arbitration is not a "claim" so a verbal notice, to a rep who is otherwise empowered to make changes to the contract(ed service) would suffice. But mail it if you want to be 1,000% sure.
Ask when you can expect Rogers to mail you the notice of arbitration protocol (see here: »
www.rogers.com/web/conte ··· protocol ) as well as the list of retired judges from which you *may* elect to select the arbitrator for your case.
(You, as cx, get to pick the arbitrator [per "arbitration-protocol"] so maybe you'd like to have someone from expensive [and highly-respected law firm {oxymoron?}] McCarthy Tétrault handle the arbitration since they do handle arbitration, including for telecom matters: »
www.mccarthy.ca/expertis ··· x?id=108 ).
Gowlings also does arbitration: »
www.gowlings.com/ADR/These cats ain't cheap, but the "arbitration-protocol" specifies that Rogers pays the arbitration costs. (If your adversary is gonna pay the tab are you havin' meatloaf, or steak? : )
But simply by your asking for when you can expect to receive this info from Rogers you're conveying that you know something of your rights under arbitration and the process, and that you're serious about all this.
BTW, if you do wish to choose your own arbitrator (i.e. not select one from the list Rogers provides you) make sure the firm isn't already in bed with Rogers or its affiliated companies, or at least insist on the construction of a Chinese wall ( »
en.wikipedia.org/wiki/Ch ··· ese_wall ) around your matter.
There's probably a Society of Arbitrators or similar, who would have a list from which you could too choose.
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In the end (and for the aforementioned reasons) this is the way I see the big picture:
- Rogers is (intending to be) breaching a contract of their own construction
- You therefore have a right to exit contract with as little hardship as possible
- Rogers' refusal to let you port number does not give them any $ value back, nor is such a port worth any $ outright so it's not a substantial "benefit" (people who are harmed by a breach contract generally don't get *more* than they would have, had the breach not taken place)
- Rogers' refusal to let you port could well be seen as Rogers trying to impair your attempt to seek a remedy which is otherwise your lawful right
- Therefore Rogers' refusal to let you PORT your number can be seen as simply malicious or retaliatory since your Ph# has no value to Rogers, only to you, and porting costs Rogers no substantial amount of anything
- This would again look bad on Rog if it went to arbitration - big companies 'retaliating' against wee cx's is rather frowned upon
Ergo: IMO you have a right to port your number away from Rogers concomitant with implementing cancel @ ECF=$0, and if Rogers attempts to impede you in anyway in that PORTING it'll look really, really bad on them and you ought seek remedy via arbitration (or court).
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You could port out, Rogers could process the cancellation and charge the ECF, and you could then call in to Rogers after the ECF has been charged and demand that the fee has been waived due to a material item in the contract being changed without your consent. If Rogers doesn't waive the charge, you have every right to take legal action, charge Rogers for any legal fees you incur and you'd quite easily win.
About recouping legal fees, it's very, very rare that someone gets 100% of legal fees awarded - AIUI the general formula is for some percentage - maybe 50% or 66% or something, and only then if 100% of one's position is supported by the final court decision.
And do note the ToS re arbitration as the sole remedy (of course subject to superceding rights that some provinces seem to have in place about abdicating one's right to legal remedy vs arbitration - maybe Quebec, maybe Ontario?)
But if you went to court and had expenses and it was over Rogers refusal to let you port your number and Rogers refusal was seen as heavy-handed/malicious and/or retaliatory you;d have a better chance at 100% costs paid.
FWICT Rogers cannot justify, in any way, refusing someone the right to PORT number in conjunction with ECF=$0.