Blyth Festival mounts defence in Factory Theatre lawsuit, countersues for over $250,000

BY SHAWN LOUGHLIN

In the face of a lawsuit filed by Toronto’s Factory Theatre last month seeking $115,000 over the 2023 cancellation of The Waltz at the Blyth Festival, the Festival’s parent company, the Blyth Centre for the Arts is now countersuing Factory for over $250,000, according to court filings obtained by The Citizen.

 

The Blyth Festival’s counterclaim was filed with the Ontario Superior Court of Justice last week. The Festival points the finger at Factory, alleging “over unpreparedness and unwillingness to co-operate” on the part of the Toronto theatre on what it claims was always a touring production. Neither Factory’s nor the Festival’s claims have been tested in court. 

 

In its claim, the Festival alleges that the Factory Theatre did not provide a complete technical rider for the show, thus, breaching the contract between the two theatres. The Festival also claimed that there had been extensive correspondence between numerous parties from both sides regarding set and lighting requirements that were never fully settled, leading to the Festival pulling the plug on the 2023 production.

 

According to the court filings, while Factory acknowledged that there was a delay in delivering its technical rider, the theatre claimed that the Festival accepted a new timeline as a result, not raising any issues. In its counterclaim, the Festival said that Factory failed to include set measurements in the technical rider of January of 2023 and that when those measurements were provided, the set would not fit on the Memorial Hall stage. 

 

Furthermore, the Festival has claimed that the proposed installation schedule would have been a week-and-a-half, shutting down the Festival during the process, which the Festival claimed was “untenable”. 

 

The two theatres, according to the Festival’s claim, eventually agreed, in May of that year, to use a scaled-down version of the set to be funded and built by the Festival.

 

The Festival further claims that the lighting component of the technical rider was incomplete, with Factory saying on May 31 that the theatre’s lighting designer might not be able to travel to Blyth for the process and then, on June 3, Factory sent the Festival 41 additional lighting requirements. Two days later, the Festival says it informed Factory that it was cancelling the production due to the disagreement on lighting design and the absence of a complete technical rider.

 

This is argued by Factory in its original claim, which states that, “Blyth did not cite any basis for the termination by the terms of the presenting agreement itself.”

 

And while the ultimately-cancelled 2022 production of The Waltz, commissioned by the Blyth Festival in 2018, is not part of either lawsuit, there is information in the documents that is being disputed by the two theatres. In its claim, Factory said the 2022 show, outdoors at the Harvest Stage, was to be a joint production by the theatres, with the Festival building sets, costumes and props and later invoicing Factory for half of the cost. The Toronto theatre claims that the sets were never built, leading to Factory having to make them for a cost of $34,000.

 

The Festival, however, is contending that the 2022 show was never supposed to be a co-production, alleging that the required notification of a joint production to the Canadian Actors’ Equity Association and the Professional Association of Canadian Theatres was never filed. The Festival statement of defence says that early discussions about the play as a joint production took place, but no joint production agreement was negotiated or finalized.

 

The statement goes on to say that the Festival created props for the show and shared them with Factory in 2022 for free, calling the gesture “good faith” and a “courtesy”, but not evidence of a joint production agreement.

 

After entering into a presenting agreement with Factory in December of 2022, according to the Festival’s statement of defence, the Festival paid a deposit of $15,000 plus HST to Factory days later. The claim then alleges that Factory failed to provide a technical rider for the show by the Dec. 14, 2022 deadline. The statement of defence further alleges that over a month later, Factory turned in an incomplete technical rider and that the Festival never accepted it, nor signed it.

 

The Festival also says in its statement of defence that it never waived the requirement of a technical rider, noting that it was a condition of the presenting agreement between the two theatres.

 

In regards to damages, the Festival denies any wrongdoing and instead has filed its own counterclaim in an effort to recover its own damages.

 

In its counterclaim, the Festival is seeking $150,000 in damages due to Factory’s alleged breach of contract. Further damages are alleged by the Festival to be related to advertising, marketing and promotional materials, employment costs and loss of revenue for a total of nearly $95,000. The Festival is also claiming that it is entitled to a refund of the $15,000 plus HST that it claims to have sent to Factory as a deposit on the production.

 

In Joshua Chong’s story for the Toronto Star, neither Factory Theatre Managing Director Mark Aikman nor Blyth Festival General Manager Rachael King provided comment with both saying it would be inappropriate to do so with the matter before the courts.