Court of Appeal for Ontario

Date: 2017-10-19 Docket: C63432

Judges: Doherty, LaForme and Paciocco JJ.A.

Between

September Seventh Entertainment Limited Appellant (Plaintiff)

and

The Feldman Agency, Jann Arden, J.A. Tours Inc., Bruce Allen Talent, Johnny Reid, Johnny Mac Entertainment Inc. and Walkin the Dog Ltd. f.s.o. Cowboy Junkies Respondents (Defendants)

Counsel

Kevin Fernandes, for the appellant

Brian Shiller and Annamaria Enenajor, for the respondents

Heard and Released Orally

October 19, 2017

Appeal Information

On appeal from the judgment of Justice Alan Whitten of the Superior Court of Justice, dated January 24, 2017, granting summary judgment in favour of Jann Arden, J.A. Tours Inc., and The Feldman Agency, and granting partial summary judgment in favour of the remaining defendants.

Reasons for Decision

[1] Counsel for the appellant submits that two comments made by the motion judge, one in argument and one in his reasons, created a reasonable apprehension of bias in that the trial judge's comments denigrated Mr. Gauthier's indigenous culture, beliefs and values. Mr. Gauthier is the president of the appellant company and represented the appellant on the motion.

[2] In our view, this argument is specious.

[3] Neither comment referred to by counsel could be understood by any reasonable observer as having anything to do with Mr. Gauthier's indigenous culture, beliefs or values. Rather, the comments, clearly somewhat sarcastic, were addressed to the nature of the public policy claim Mr. Gauthier advanced in his affidavit in support of his contention that certain provisions in the contracts were unconscionable and should not be enforced against the appellant.

[4] The relevant part of the affidavit reads:

… In the alternative, the clauses should not be enforced because of an overriding public policy against these particular contract breaches because of their impact on music fans, event producers, local musicians, music industry, suppliers, local business, farmers, non-profit groups, conservation lands, aboriginal groups, music venues and other related individuals and organizations.

[5] The trial judge addressed the public policy argument at paras. 28 and 29 of his reasons:

[28] If the exclusion clause is held to be valid and applicable, the court can still consider whether or not the exclusion clause should be enforced because of the "existence of an overriding public policy". The burden of proof for the existence of such a phenomenon is upon he or she who seeks to avoid enforcement. That proof must be of sufficient magnitude to "outweigh the very strong public interest in the enforcement of contracts".

[29] Although the plaintiff pleads that numerous local entities (it is amazing that he did not include the animal life) will be affected by the actions of the defendants, there is no proof of such an impact, just bold assertions. In reality, the future of the Harvest Festival is more likely to be affected by the plaintiff launching this suit and not paying the artist completely. What artist would sign on for these problems?

[6] While sarcasm is best avoided in judgment writing, the trial judge's comments clearly targeted the extravagant and unsupported public policy claim advanced by Mr. Gauthier in his affidavit. The remark spoke to the merits of that argument and no reasonable person could interpret the comment as casting aspersions on Mr. Gauthier's indigenous culture and beliefs. The other comment made in argument is equally incapable of being understood as derogatory toward indigenous people. We need not refer to it.

[7] Counsel must fearlessly advance legitimate arguments on behalf of their clients. However, it is unfortunate that counsel's zeal sometimes leads to baseless arguments that undermine the integrity of others involved in the justice process and trivialize legitimate issues faced by indigenous people in our community.

[8] The other issues raised by the appellant all relate to the motion judge's interpretation of the exclusion clause and the limitation of liability clause in the various contracts. We agree with the motion judge's conclusions. On their language, the provisions clearly applied to alleged breaches of the "radius" clauses. The unconscionability argument advanced before the motion judge and renewed in this court was properly rejected for the reasons given by the motion judge.

[9] The appeal is dismissed.

[10] Counsel have agreed that the respondents should have its costs in the amount of $8,500, inclusive of disbursement and relevant taxes.

"Doherty J.A."

"H.S. LaForme J.A."

"David M. Paciocco J.A."