Music and Beyond v. van Duyvenbode, 2016 ONSC 6489

CITATION: Music and Beyond v. van Duyvenbode, 2016 ONSC 6489

COURT FILE NO.: 15-63307

DATE: 2016/10/21

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: MUSIC and BEYOND PEFORMING ARTS

Plaintiff

AND

NICO van DUYVENBODE

Defendant

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: John E. McDonnell, for the plaintiff

James B. Barnes, for the defendant

HEARD: May 10, 2016

ENDORSEMENT

Background

[1] The Oxford Dictionaries[^1] defines “motivation” as “a reason or reasons for acting or behaving in a particular way”. The extent to which this matter has been litigated to date is disproportionate to the monetary amounts involved. I can only conclude that something other than money is motivating each of the parties to this litigation.

[2] The parties were first before the Court in mid-September 2014 for the return of the plaintiff’s application requesting the release of an inventory of wine in the defendant’s possession. The wine inventory (“the Wine”) was required by the plaintiff for a fund-raising event on September 30, 3014 (“the Auction”).

[3] On the return of the application on September 19, 2014, Minnema J. made the following order (“the Order”):

1. THIS COURT ORDERS that the wine inventory, attached hereto as Schedule ‘A’ belonging to the Applicant and presently in the possession of the Respondent be released to the Applicant on or before Tuesday, Sept. 30, 2014, providing para. 2 is complied with.

2. THIS COURT ORDERS that $33,900 be paid into Court by Sept. 26, 2014 pending the resolution of the matter of funds owing to the Respondent for past services; and for services for the Sept. 30, 2014 auction.

[4] The terms of the Order balanced the plaintiff’s request for the release of the Wine for the fund-raising event and the defendant’s claim for compensation owing to him for his services with respect to two previous auctions and for services to be provided for the Auction.

[5] The parties have been before the Court on at least two occasions since September 2014. From my review of the record it appears that at least one of those occasions was for a motion by the plaintiff for an order that the $33,900 paid into Court be paid out to the plaintiff. The application and cross-application have been converted to an action and counterclaim. Pleadings have been exchanged. It appears that the litigation has not moved beyond the pleadings stage.

[6] The relationship between the parties began to deteriorate well before September 2014. Minnema J. could not have imagined when the parties were before him, that the relationship between the parties had deteriorated to the point that even with the Order in hand, events would not go smoothly for the parties on the 30^th of September.[^2]

[7] The parties are back before the Court because they disagree as to (a) what was intended by para. 1 of the Order; and (b) whether the defendant failed to comply with that term of the Order.

[8] The plaintiff’s position is that the defendant failed to “release” the Wine “on or before Sept. 30, 2014” and therefore failed to comply with para. 1 of the Order. The plaintiff relies, in part, on the defendant’s failure in that regard in support of the request for an order that the $33,900 paid into Court by the plaintiff in fulfilment of para. 2 of the Order be paid out to the plaintiff at this time.

[9] The defendant’s position is that he complied with the Order; the Wine was available for release to the plaintiff on the 30^th of September; and it is solely as a result of the plaintiff’s conduct that the plaintiff did not have the Wine in its possession on the night of the Auction.

The Issues

[10] The issues to be determined on this motion are:

1. What is meant by “on or before Tuesday, Sept. 30, 2014” in para. 1 of the Order?

2. Did the defendant comply with para. 1 of the Order?

3. Is the $33,900 paid into Court pursuant to para. 2 of the Order to be paid out to the plaintiff?

Issue No. 1: “On or Before”

[11] The evidence before me is restricted to two affidavits from the Executive and Artistic Director of the plaintiff (“Armour” and “the Armour Affidavit No. 1 (or 2)”),[^3] and three affidavits from the defendant (“the van Duyvenbode Affidavit No. 1 (2 or 3)”).[^4] It is my understanding that the affiants were not cross-examined on any of their affidavits. No transcripts from cross-examinations are included in the record.

[12] To determine what is intended by “on or before” as it appears in the Order, the events leading up to the return of the application and the evidence before Minnema J. must be considered. The only evidence before Minnema J. was as set out in Armour Affidavit No. 1. No evidence was delivered on behalf of the defendant prior to the return of the application.

[13] With the exception of Armour Affidavit No. 1, the affidavits included in the record before me are dated subsequent to September 2014. The first affidavit sworn by the defendant (in November 2014) was made in support of his cross-application to have the $33,900 paid out to him.

[14] Based on the uncontradicted evidence from the affidavits and exhibits in the record before me, I find as follows:

• The plaintiff made the importance of the release of the Wine for the purpose of the Auction known to Minnema J.
  • In support of the application, it was Armour’s evidence that if the Wine “is not released in time for the auction”, the plaintiff would be faced with “the real possibility of having to cancel the event, causing economic harm, damage to its reputation and further embarrassment in the community.”[^5]
  • The evidence before Minnema J. included, as an exhibit to Armour Affidavit No. 1, a copy of a letter dated August 28, 2014 from counsel for the plaintiff addressed and sent by e-mail to the defendant. In the letter a request was made for the release of the Wine by September 3, 2014.
• On the return of the application, the plaintiff’s request was for an order requiring the defendant to release the Wine “by Wednesday, September 24, 2014.” A typed draft order to that effect was provided to Minnema J. He crossed out that deadline and replaced it in hand-written form with “on or before Tuesday, Sept. 30, 2014”.

[15] What did Minnema J. intend by ordering that the Wine be released “on or before” the 30^th of September?

[16] The only evidence before me as to the defendant’s whereabouts and/or travel plans in the period leading up to and including the 30^th of September is set out in an e-mail sent by the defendant on the 29^th of September.[^6] That e-mail was sent in response to an e-mail message from the office of counsel for the plaintiff advising the defendant that the plaintiff intended to pick up the Wine at noon on the 30^th of September.

[17] In his responding e-mail message on the 29^th of September, sent to both the plaintiff and counsel for the plaintiff, the defendant said:

I am rather surprised by this e-mail because you both have known since July that I do not arrive back in Ottawa until very late in the afternoon or early evening of September 30^th. Therefore, your demand now to pick up the wines at noon on September 30^th is totally misplaced as you both knew that this is impossible.^7

[18] There is no evidence before me contradicting the defendant’s statement quoted above – in particular as to the state of knowledge of the plaintiff and counsel of the defendant’s travel plans leading up to and including the 30^th of September. Armour does not address that statement in either of the two affidavits before me in his name.

[19] The uncontradicted evidence of the defendant is that he had, until the 30^th of September, been in Germany for about three months.[^8]

[20] In the balance of his e-mail message sent on the 29^th of September, the defendant set out what he would do and what the plaintiff needed to do to facilitate the release of the Wine on the 30^th of September. The defendant said that he anticipated it would be possible to have the Wine boxed and ready to be picked up by 11:00 p.m. on the 30^th of September.

[21] The plaintiff relies on rule 3.01(1)(d) of the Rules of Civil Procedure[^9] in support of its submission that when an act is completed subsequent to 4:00 p.m. it shall be deemed to have been completed on the next business day. That rule deals with service of documents and is not applicable to or determinative of the interpretation of the Order.

[22] The plaintiff also relies on several cases in support of its position that for reasons of business efficacy, it is implied in para. 1 of the Order that the Wine was to be released in time to allow for the Wine to be at the Auction site by the start of the event. In my view, the cases relied on are not applicable to the interpretation of an order made following the hearing of an application.

[23] The plaintiff relies on Henry Hope & Sons v. Canada Foundry Co. [^10] That case deals with contracts for the supply of goods which are known to be needed for a specific purpose and at a specific time. The case is authority for the principle that such contracts are, under ordinary circumstances, to be performed so that the needs of the recipient may be met. For several reasons that case is not applicable to the dispute between the parties before me. First, that statement was obiter to the decision. Second, the Court held that the statement could not be applied in the circumstance of the case. Third, the case deals with a contract negotiated between parties to a dispute – not with a court order.

[24] The plaintiff also relies on the decision of this Court in Bajwa Consultants Inc. v. 578898 Ontario Ltd.[^11] It was agreed between the parties in Bajwa that the subject contract did not include either a start date or an end date. In determining the matter, Sproat J. acknowledged that “the Court customarily implies reasonable terms, and that implying a term that the Defendant would undertake this work within a reasonable period of time is reasonable and necessary for business efficacy.”[^12]

[25] The plaintiff submits that for reasons of business efficacy and efficiency it is necessarily implied in para. 1 of the Order that the Wine would be released so as to be at the Auction site for the start of the event.

[26] In my view, the Bajwa decision is not of assistance in determining what is meant by the deadline set in the Order. That deadline was based on the evidence before and submissions of counsel for the parties to Minnema J. The deadline was not a negotiated term of a contract. If a specific time of day was a critical component of the deadline, it was open to the parties to make submissions to that effect. There is no evidence before me as to whether submissions were made in that regard.

[27] The defendant was represented on the return of the application. I draw an inference and find that it was as a result of submissions made on behalf of the defendant on the return of the application that the deadline for the release of the Wine was changed by Minnema J. from the 24^th to the 30^th of September. Had the defendant been in the Ottawa area in the days leading up to the 30^th of September, there would have been little, if any, reason to set the date of the Auction as the deadline for the release of the Wine.

[28] I also draw an inference and find that Minnema J. changed the parameter of the deadline from “by” to “on or before” specifically to provide for the Wine to be released at any time on the 30^th of September. By doing so, he allowed for the possibility that the Wine would not be released until the evening of September 30 because of the defendant’s travel plans and potential disruption of those plans beyond the control of the defendant.

[29] In summary, I find that “on or before” means at any time of day, including the evening hours, on September 30, 2014.

Issue No. 2: Did the Defendant Comply with or Breach the Order?

[30] In his e-mail message sent to the plaintiff and its counsel on September 29, the defendant set out (a) how he intended to organise the Wine; and (b) the assistance he required from the plaintiff to facilitate the organisation and release of the Wine on the 30^th of September:

[I]n order to move the wines, boxes to transport the wines are needed which you can pick up from LCBO stores tomorrow when they stock the shelves and lots of boxes are available. You should bring about 40 12-bottle boxes to [defendant’s home address] and leave them on the front porch.

That evening, I will sort out and confirm the wines belonging to Music and Beyond and put these wines in the boxes which you have brought for your pick up later in the evening. I think that by around 11 p.m. we can have the wine boxed and carried out to the bottom of the cellar stairs for you to pick them up and carry out to your cars or truck.

[31] There is no evidence of any response from the plaintiff to that e-mail message, including to the instructions given to the plaintiff to facilitate the release of the Wine.

[32] The only evidence as to what transpired following the defendant’s return to Ottawa on the 30^th of September is that of the defendant.[^13] Based on the defendant’s evidence, I find that events on the day of and the day following the Auction transpired as follows:

• The defendant arrived at his home at 5:00 p.m. on the 30^th of September.
• No wine boxes were on his front porch as had been requested by the defendant.
• After arriving home, the defendant began to organize the Wine to be boxed and released to the plaintiff.
• The organization of the Wine included the defendant going to “various LCBO stores” to pick up empty wine boxes, a task which consumed over two hours of his time on the night of the 30^th of September.
• The plaintiff did not attempt to pick up the Wine on the 30^th of September.
• In the early morning hours of October 1, the defendant sent an e-mail message to Armour and to counsel for the plaintiff advising that he had been waiting a number of hours for someone to pick up the Wine. He asked that the plaintiff send someone to pick up the Wine on the afternoon of the 1^st of October.
• Representatives of the plaintiff attended at the defendant’s home at noon on October 1 and picked up the Wine.

[33] The defendant’s position is that in all of the circumstances, including those contemplated when the Order was made, he complied with the terms of the Order. It is solely as a result of the plaintiff’s conduct that the plaintiff did not have the Wine in its possession on the night of the auction. The plaintiff failed to deliver useable wine boxes on the afternoon of and failed to attend at the defendant’s home to pick up the wine on the 30^th of September.

[34] The defendant’s uncontradicted evidence is that the keys to the wine cellar in his Ottawa home were in Germany over the summer months. It was not logistically possible for him to send the keys to family members in Ottawa for them to access the wine cellar prior to September 30.

[35] I find that the defendant complied with the Order. He had the Wine available for release to the plaintiff “on or before” the 30^th of September in accordance with the meaning of para. 1 of the Order.

Issue No. 3: Money Paid Into Court

[36] The plaintiff denies that the defendant is entitled to the $33,900 paid into Court. The plaintiff’s position is that the amount owing to the defendant is approximately 25 per cent of that amount.

[37] The typed draft order which counsel for the applicant presented to Minnema J. on the return of the application included the following term with respect to the payment of money by the plaintiff:

2. THIS COURT ORDERS that $22,600 of the proceeds raised at the Wine Auction scheduled for Tuesday, September 30, 2014, be held in trust by Spiteri & Ursulak LLP pending the resolution of the matter of funds owing to the Respondent for past services.

[38] The relief requested in the notice of application considered by Minnema J. in September 2014 includes an order on the terms set out immediately above. The Order reflects a number of changes from the typed draft including (a) an increase from $22,600 to $33,900 of the monetary amount; (b) the requirement that the money be paid into Court as opposed to held in trust by plaintiff’s counsel; and (c) the inclusion of the reference to services for the September 30, 2014 auction.

[39] In support of the relief requested on the motion before me, Armour’s evidence includes a partial explanation as to how para. 2 evolved from the typed draft to its final form. The partial explanation is that on the return of the application the plaintiff changed its position and offered to pay monies into Court (as opposed to leaving funds in the trust account of plaintiff’s counsel). Only then did the defendant take the position that the amount to be paid into Court should be $33,900 and not $22,600 as identified in the notice of application.

[40] The plaintiff relies on rule 60.12 of the Rules of Civil Procedure – relief available where a party fails to comply with an interlocutory order. Having found that the defendant complied with para. 1 of the Order, rule 60.12 is not applicable to the relief requested.

[41] The plaintiff also relies on a series of rules related to interim orders made for the recovery of possession of personal property.[^14] However, the Order was not made on the basis of those rules. The notice of application did not refer to those rules as grounds for the relief sought.

[42] In support of its request for the payment out of Court of the $33,900 the plaintiff relies on the alleged failure of the defendant to proceed further with his counterclaim. There is no evidence before me of steps taken by either the plaintiff or the defendant to move the action and counterclaim, respectively, beyond the exchange of pleadings. The obligation to move litigation forward does not rest with one party or the other. Both parties have an obligation to move the litigation forward in a timely manner.

[43] The Order specifically states that the $33,900 is to be paid into Court “pending resolution of the matter of funds owing to the [defendant] for past services; and for services for the Sept 30, 2014 auction.” I find that both the plaintiff and the defendant are responsible for that issue remaining outstanding as of this point in the litigation.

[44] In summary, the plaintiff is not entitled to the payment out of Court of the $33,900.

Other Matters

[45] In the notice of motion before me, the plaintiff relies on rule 37.13 of the Rules of Civil Procedure. Rule 37.13 gives the judge or master presiding over a motion the discretion to grant certain forms of relief including that the action be identified as one requiring a “speedy trial” and therefore placed on the trial list either forthwith or within a specified time. The discretion is also granted to order that there be a trial of an issue.

[46] The plaintiff does not, however, address that rule in the context of the relief requested in the notice of motion, in the evidence filed in support of the relief requested, or in the factum delivered on its behalf.

[47] Regardless of the failure of the plaintiff to address rule 37.13 in its materials, I would decline to identify this matter as one requiring a speedy trial. It is more than two years since the return of the application. It has been over a year since Master MacLeod (as he then was) ordered that the application be converted to an action.[^15] The statement of defence and counterclaim is dated February 27, 2015.[^16]

[48] There is no evidence that the parties have taken any steps to move the litigation forward in a manner that demonstrates a level of urgency to support the identification of this action as one that requires speedy trial.

Summary

[49] For a number of years the parties were able to work together towards the common goal of raising funds in support of the plaintiff organization’s “promot[ion] of classical music events in Ottawa with a mission to create opportunities for young people to be exposed to and become involved with classical music.”[^17] It is unfortunate that the parties who once worked together in fund-raising efforts are now embroiled in a dispute over money. They have lost the motivation they once shared. Given the monetary amounts involved in the dispute, the parties would be well-served to examine their respective motivations at this time and work towards a timely, efficient, and cost-effective resolution of their dispute.

[50] For the reasons set out above, I order as follows:

1. The plaintiff’s motion for an order that the $33,900 paid into Court by the plaintiff in September 2014 be released to the plaintiff is dismissed.

Costs

[51] In the event the parties are unable to agree upon costs of the plaintiff’s motions, they may make written submissions as follows:

a) The submissions shall be limited to a maximum of four pages, exclusive of a bill of costs;

b) Written submissions shall comply with Rule 4 of the Rules of Civil Procedure including that they shall be double-spaced and the requisite font size;

c) Hard copies of any case law or other authorities relied on shall be provided with the submissions and shall be in the requisite font size;

d) Submissions, bills of costs, and case law or other authorities shall be single-sided; and

e) Written submissions shall be delivered by 5:00 p.m. on the tenth business day following the date on which this decision is released.

Madam Justice Sylvia Corthorn

Date: October 21, 2016

CITATION: Music and Beyond v. van Duyvenbode, 2016 ONSC 6489

COURT FILE NO.: 15-63307

DATE: 2016/10/21

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: MUSIC and BEYOND PEFORMING ARTS

Plaintiff

AND

NICO van DUYVENBODE

Defendant

BEFORE: Madam Justice Sylvia Corthorn

COUNSEL: John E. McDonnell, for the plaintiff

James B. Barnes, for the defendant

ENDORSEMENT

Madam Justice Sylvia Corthorn

Released: October 21, 2016

[^1]: An online dictionary by the Oxford University Press: www.oxforddictionaries.com.

[^2]: From this point forward in the Endorsement, unless otherwise stated, the year is 2014.

[^3]: Armour Affidavit No. 1 was sworn on September 11, 2014 and Affidavit No. 2 was sworn on November 3, 2015. In the van Duyvenbode affidavit sworn on November 5, 2014, there is reference to an affidavit sworn by Armour on October 28, 2014. A copy of Armour’s October 2014 affidavit is not included in the record before me.

[^4]: van Duyvenbode Affidavit No. 1 was sworn on November 5, 2014; Affidavit No. 2 was sworn on April 18, 2016; and Affidavit No. 3 was sworn on May 3, 2016.

[^5]: Para. 12 of Armour Affidavit No. 1.

[^6]: Exhibit ‘I’ to Armour Affidavit No. 2.

[^8]: Para. 12 of van Duyvenbode Affidavit Nos. 1 and 2.

[^9]: R.R.O. 1990, Reg. 194.

[^10]: (1917), 1917 CanLII 567 (ON CA), 39 D.L.R. 308 (Ont. C.A.).

[^11]: (2004), 53 C.L.R. (3d) 211 (Ont. S.C.).

[^12]: Bajwa, at para. 8.

[^13]: Para. 12 of van Duyvenbode Affidavit Nos. 1 and 2.

[^14]: Rules 44.03, 44.05, and 44.06 of the Rules of Civil Procedure.

[^15]: Exhibit ‘J’ to Armour Affidavit No. 2 is the hand-written endorsement to that effect, copied from the back page of a motion record for a motion brought on behalf of the plaintiff.

[^16]: Exhibit ‘H’ to van Duyvenbode Affidavit No. 2.

[^17]: Para. 2 of Armour Affidavit No. 2.