



COURT OF APPEAL FOR ONTARIO

CITATION: September Seventh Entertainment Limited v. The
    Feldman Agency, 2017 ONCA 815

DATE: 20171024

DOCKET: C63432

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)

Kevin Fernandes, for the appellant

Brian Shiller and Annamaria Enenajor, for the
    respondents

Heard and released orally:  October 19, 2017

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 judges comments denigrated Mr.
    Gauthiers 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. Gauthiers 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 judges
    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. Gauthiers 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 counsels 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
    judges interpretation of the exclusion clause and the limitation of liability
    clause in the various contracts.  We agree with the motion judges 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.


