Case: September Seventh Entertainment Limited v. The Feldman Agency, 2017 ONCA 815 (CanLII)
Keywords: Sarcasm; Reasonable Apprehension of Bias; Summary Judgment; Unconscionability
The Appellant company (September Seventh Entertainment Limited) negotiates a series of contracts with the Respondent (The Feldman Agency) to have Jann Arden, Johnny Reid, and the Cowboy Junkies perform at “Harvest Picnic 2016 Festival”. Ms. Arden becomes ill and is unable to perform at the festival, but not before announcing her Toronto performance as per an amended contract. The remaining artists are alleged to have breached a “radius clause” by performing elsewhere. (See at paras. 1-10 in September Seventh Entertainment Ltd. v The Feldman Agency et al., 2017 ONSC 552 (CanLII)).
At the summary judgment motion, the Appellant company is represented by its president, Mr. Gauthier. The Motion Judge determines exclusion clauses contained in the performance contracts eliminate The Feldman Agency’s liability. Since Ms. Arden returned the premium advanced to her, the Motions Judge determines the alleged damages are “eclipsed entirely”. With respect to the remaining artists and their managers, the Motions Judge determines the limitation of liability clauses apply. (See at paras. 41-42 in September Seventh Entertainment Ltd. v The Feldman Agency et al., 2017 ONSC 552 (CanLII)).
On appeal, the Appellant submits two comments made by the Motion Judge create a reasonable apprehension of bias, denigrating Mr. Gauthier’s indigenous culture, beliefs and values.
The comments are addressed to the nature of Mr. Gauthier’s public policy claim, the Appellant’s position being the applicable contractual provisions are unconscionable and should not be enforced. The Motion Judge had addressed Mr. Gauthier’s public policy arguments at paras. 28 and 29 of his reasons:
 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”.
 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? [Emphasis added].
The Court of Appeal concludes these comments, “clearly somewhat sarcastic”, could not be understood by any reasonable observer as having anything to do with Mr. Gauthier’s indigenous culture, beliefs or values. (See at para. 3).
Writing decisions is a difficult task. What is the balance between speaking one’s mind (sometimes forcefully and even somewhat sarcastically) and presenting oneself in a manner which does not bring the administration of justice into disrepute or give rise to allegations of biased decision making?
While the Court of Appeal clearly rejected the Appellant’s submission that the Motion Judge’s comments raised a reasonable apprehension of bias in this case (describing the argument as “baseless” at para. 7), the Court of Appeal did not wholeheartedly endorse the approach taken by the Motions Judge either:
While sarcasm is best avoided in judgment writing, the trial judge’s [Motion Judge] 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. (See para. 6).
Counsel for the Appellant: Kevin Fernandes (Burns Associates, Hamilton)
Counsel for the Respondents: Brian Shiller and Annamaria Enenajor (Ruby, Shiller & Enanajor, Toronto)