ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-10-00407019-0000
DATE: 20120305

B E T W E E N :

MICHAEL SNOW Plaintiff/Moving Party - and - KING AND JOHN FESTIVAL CORPORATION, THE DANIELS CORPORATION, IVAN REITMAN, REITCLAS ULC, and REITCLAS GENERAL PARTNER LIMITED Defendants. Respondents

Lawrence G. Theall and Josiah T. MacQuarrie, for the Plaintiff Michael A. Cohen, for the Defendant, King and John Festival Corporation
HEARD: December 8, 2011, at Toronto

MATLOW J. :

[ 1 ] This motion for summary judgment against only the defendant, King and John Festival Corporation (“the defendant”), is dismissed for the reasons that follow. This action has already been dismissed on consent as against the other defendants.

[ 2 ] The plaintiff, an artist and filmmaker, was chosen by the defendant in May, 2006, to create a piece of visual art which was to be installed in a new facility in downtown Toronto which was to serve as the permanent home of the Toronto International Film Festival. The creation of the art was required in order to satisfy a condition imposed on the developer of the facility by the City of Toronto for the issuing of a required permit.

[ 3 ] From that time to July 18, 2008, the process of designing the art went ahead including substantial measures taken by the plaintiff to satisfy the defendant’s various concerns. However, by letter dated July 18, 2008, the defendant advised the plaintiff that it was terminating its relationship with him. It appears that payment was made to the plaintiff by the defendant for the work that he had performed and the disbursements he incurred up to that time.

[ 4 ] By this motion the plaintiff seeks to obtain summary judgment against the defendant declaring that a final contract had been formed by them for the creation of the art and that the defendant had improperly repudiated it.

[ 5 ] From the inception of the relationship between the parties to the time it was terminated, numerous meetings and other relevant events occurred and much relevant correspondence passed between the parties. It is clear from the evidence that the parties had reached some agreement for the design of the art but the parties never did execute the written agreement that was contemplated by the “Terms of Reference” document by which their relationship was governed. Although the defendant recognized that the plaintiff was entitled to be compensated for the work that he did, it is not clear whether it was pursuant to some agreement or understanding that the parties had reached with respect to preparatory pre-contract design work that was to be done or whether it was pursuant to the final contract that the plaintiff submits should be inferred from the relevant events and correspondence referred to above.

[ 6 ] It appears that, throughout this period, the parties may have held conflicting views as the extent of control the defendant was entitled to assert over the project and the plaintiff’s obligation to satisfy the defendant’s expectations before the final contract could be executed.

[ 7 ] There is much evidence before me that supports the position of the plaintiff and much evidence that is contradictory and supports the position of the defendant. Although there appears to be no good reason to question the honesty of the witnesses whose evidence was tendered, there is much reason to question the various reasons why the parties now take their respective conflicting positions.

[ 8 ] Taking all of the evidence into account, it is my view that it would be unsafe for me to attempt to resolve the conflicts in the evidence regarding whether or not a binding final contract was ever made by the parties in spite of the fact that no formal contract was ever executed by them. In the circumstances of this action, I cannot confidently make findings of reliability of the witness’ evidence or confidently draw reasonable inferences from the evidence. Accordingly, I conclude that the issues pertaining to the alleged making of a final contract and the alleged repudiation of it are genuine issues which require that their determination be left to proceed to trial.

[ 9 ] Written submissions with respect to costs may be made by counsel by exchanging them and depositing a copy for me with the Registrar of this court on or before April 5, 2012, failing which the formal order is to make no provision for the payment of costs.

Matlow, J.

RELEASED: March 05, 2012.

COURT FILE NO.: CV-10-00407019-0000
DATE: 20120305

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N:

MICHAEL SNOW Plaintiff/Moving Party - and - KING AND JOHN FESTIVAL CORPORATION, THE DANIELS CORPORATION, IVAN REITMAN, REITCLAS ULC, and REITCLAS GENERAL PARTNER LIMITED Defendants. Respondents

REASONS FOR ORDER MATLOW J.

RELEASED: March 5, 2012