Superior Court of Justice

B E T W E E N:

TORONTO MAS BANDS ASSOCIATION

Plaintiff

• and -

FESTIVAL MANAGEMENT COMMITTEE

Defendant

R E A S O N S F O R J U D G M E N T

BEFORE THE HONOURABLE JUSTICE WRIGHT

on May 25, 2015, at TORONTO, Ontario.

APPEARANCES:

T. Walker and A. Ostrom Counsel for the Plaintiff

J. Copelovici Counsel for the Defendant

S. R. Baboolal Counsel seeking to be added

as party intervener

MONDAY, MAY 25, 2015

R E A S O N S F O R J U D G M E N T

WRIGHT, J. (Orally):

INTRODUCTION:

This is a motion brought by the Toronto Mas Band Association, (TMBA) for a declaration that the Festival Management Committee, (FMC) is in breach of its contract with TMBA, and for an order rescinding any direct contracts or agreements between the FMC and any member bands or band leaders of the TMBA. In the alternative, the TMBA seeks an injunction restraining the FMC from:

(1) Entering into any direct contracts or agreements with the member bands; and,

(2) Making any direct payment of any kind to the member bands.

FACTS:

I do not intend to review the factual backdrop at this time. Both parties agree that the factual backdrop set, set out in the plaintiff’s factum in paragraphs 2 through 14 is accurate.

LAW:

Both parties also agree that the court must assess the following three criteria in determining whether to grant an injunction:

(1) Is there are serious issue for trial;

(2) Would the moving party suffer irreparable harm;

(3) Does the balance of convenience favour granting the injunction.

ANALYSIS:

It is undisputed that the parties had a historical arrangement whereby they would enter into annual contracts in the form of memorandums of agreement.

I find that there was no contract or memorandum of agreement entered into between the parties in the year 2015. I don’t accept that the memorandum agreement was a simple formality between the parties.

I find that the FMC presented the TMBA with a draft contract in December 2014. That draft contract was withdrawn by the FMC on April 29th, 2015.

The question then becomes, why was the contract withdrawn?

TMBA says this is a case of the FMC breaching their duty of good faith that was owed to them. They say that for four years, these contracts had always been negotiated in May and June and that by withdrawing it without notice was in breach of that principle. They go on to say that this was all motivated by an agenda on the part of the FMC to allow Mr. Saldenah’s band to participate.

FMC says that had nothing to do with it. They say the contract was withdrawn on April 29th, 2015, because they received a threatening and disturbing e-mail on April 27th, 2015. I don’t intend to review the content of that e-mail as it is set out, in full, in the materials.

I do find that the e-mail is as described by FMC. That is, it is threatening and disturbing, and as such, amounted, in my view, to a breakdown of the relationship between the parties. I further find that it was the reason for the withdrawal of the contract. This is not a case of breaching the duty of good faith and honesty.

I therefore find that there was not a valid contract or an agreement between the parties for the year 2015.

Given my finding that there was no valid contract for the year 2015, the Plaintiff’s motion seeking on order for declaration for breach of contract in that regard must fail.

Turning now to the request for an injunction.

The first branch of the test is to determine if there is a serious issue for trial.

I accept that this is not about an in-depth examination of the matter and that the threshold is a low one. However, I am not persuaded on the material presented before me that there is a serious issue for trial, especially given my finding that no contract existed between the parties for the year 2015, and it is the breach of that contract that forms, in large measure, the basis for the plaintiff’s argument.

I am mindful that the defendants acknowledge that there is a live issue concerning liability and insurance coverage; however, I am persuaded that those issues attach to prior contracts and have nothing to do with the subject matter of this motion.

Finally, the TMBA argue that this was all part of FMC’s plan to take over the role of the TMBA. I find no support to persuade me of this position on the materials presented to me.

Turning to the second branch of the test.

The plaintiffs argue that without the injunction, they will suffer irreparable harm.

I disagree, and here is why.

I have reviewed the transcript of Mr. Aguiton’s evidence in relation to irreparable harm that would be caused to TMBA. It can only be described as vague and general. He even goes so far as to use the word “speculative,” when describing the potential harm. This falls well short of what is required in law, and that is, that irreparable harm cannot be founded upon mere speculation.

Counsel submits that without the injunction, the bands won’t get paid. I find no support for this proposition; moreover, to consider this would be well outside the bounds of what is appropriate in law in assessing irreparable harm. It is to be restricted to the party claiming it. Asking for the court to consider the impact the lack of an injunction would have on the bands who are not part of this motion would be improper.

Accordingly, I find that the plaintiffs have failed to provide a proper foundation for a finding of irreparable harm.

Turning to the final branch of the test, the balance of convenience.

After considering all of the unique circumstances that attach to this case, I find that the balance of convenience favours the FMC, and that is, not to grant the injunction requested. I agree with FMC an injunction at this stage would either force them, or be tantamount to them having to sign a contract with the TMBA. Given the serious breakdown in the relationship between the parties, the balance of convenience test, in my view, favours not imposing an injunction.

CONCLUSION:

In summary, after considering all of the material before me, the submissions of counsel, and the law as presented to me, the motion will be dismissed.