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Association des festivités culturelles des Caraïbes c. Montreal (City of)

2010 QCCS 5794

JP 1975

 
 SUPERIOR COURT

 

CANADA

PROVINCE OF QUEBEC

DISTRICT OF

MONTREAL

 

No:

500-17-057081-104

 

                                                                               

 

DATE:

November 29, 2010

______________________________________________________________________

 

IN THE PRESENCE OF:

THE HONOURABLE

DANIEL W. PAYETTE, S.C.J.

______________________________________________________________________

 

 

ASSOCIATION DES FESTIVITÉS CULTURELLES DES CARAÏBES

Plaintiff

v.

CITY OF MONTREAL

and

HENRY ANTOINE

and

FONDATION DE DÉVELOPPEMENT DU CARNAVAL DE MONTRÉAL et al.

            Defendants

 

 

______________________________________________________________________

 

JUDGMENT

______________________________________________________________________

 

[1]           A feud between former fellow board members brings two non-profit organizations before the Court. Both are asking that their right to organize the annual Montreal Carnival (the "Carnival") be recognized to the exclusion of the other.

1.         The parties

[2]           The Association des Festivités culturelles des Caraïbes ("CCFA") was incorporated on May 18, 1995. Its current president is Mr. Everiste Blaize.

[3]           The Fondation de développement du Carnaval de Montréal (the "Fondation") was incorporated on December 8, 2008. Its president is Mr. Henry Antoine.

[4]           The City of Montreal (the "City") has lent its financial and technical support to the Carnival since the late 1980's.

2.         The facts

[5]           The Caribbean community of Montreal has been organizing the Carnival since 1974 with some interruptions. Its highlight is an important parade through certain city streets.

[6]           The City has lent its assistance to the event mainly through a program called the "Programme de soutien aux festivals et aux événements culturels" (the "Program").

[7]           CCFA has organized the Carnival since 1995 with such financial and technical support.

[8]           In 2008, the board was made up of the following persons :

§  Henry Antoine;

§  Jack Grell;

§  Lynette Edwards

§  Patrick Hickson;

§  Terri Ann Dufeal;

§  Arnold Parris;

§  Anthony Dyeth;

§  Seymour Thomas;

§  Agatha Alexander;

§  Everiste Blaize;

§  Camille François;

§  Harry Bissoon;

§  Derrick Parkinson.

[9]           Ms. François, Messrs Blaize and Parkinson had only recently been appointed to the board at Mr. Antoine's request.

[10]        Over the years, CCFA's reputation became tarnished because of its difficulties meeting its financial obligations. This brought CCFA's board of directors to look into ways of enhancing its image.

[11]        In May 2008, after months of discussions, the board resolved to act. The nature and contents of the decisions made at the time are in dispute.

[12]        Suffice it to say that, as a consequence of these decisions, Mr. Antoine took steps to set up the Fondation.

[13]        When the City realized that two groups were competing for the right to organize the Carnival, it asked them to reach on agreement.

[14]        They failed to do so even though it was the Carnival's thirty fifth anniversary.

[15]        Given the circumstances, the City decided to allow all willing bands and bandleaders to participate in the 2009 event as a temporary and punctual measure.

[16]        Sadly, the feud persisted. The 2010 event did not take place.

3.         The legal proceedings

[17]        CCFA instituted its motion for injunction in March 2010.

[18]        Taking into account the amendments made during the hearing, it is now asking the Court to :

ORDER that the Fondation and Mr. Antoine be prohibited from representing themselves as owning the names "Carifiesta" and "Association des festivities culturelles des Caraïbes" or "CCFA".

DECLARE that the Fondation be prohibited from filing a request with the City to organize a Caribbean parade based on Carifiesta or Carifête.

[19]        The Fondation replied with its own requests, mainly asking that the Court :

ORDER the City to solely authorize it to organize the next edition of the parade;

DECLARE that CCFA be prohibited from filing a request with the City to organize a Caribbean parade based on Carifiesta or Carifête.

[20]        It is also asking the Court to confirm a May 14th, 2008 resolution of the board of directors of CCFA and order the latter to pay certain debts.

4.         Discussion

4.1       Use of the CCFA and Carifiesta names

4.1.1    Factual context

[21]        In order to resolve the issue of who owns these names, one must return to the events leading up to the striking off and reregistration of CCFA.

[22]        CCFA held a board meeting on May 14, 2008.

[23]        The evidence shows that a draft resolution was then presented by Mr. Antoine.  Its purpose was to develop a solution to the credibility issues CCFA was facing.

[24]        Although some contradictory evidence was presented on the subject, the Court concludes that the board was presented with a plan which entailed :

§  The creation of a new non-profit organization to administer and organize the Carnival under a new name;

§  The dissolution of CCFA;

§  The dissolution of its board. [1]

[25]        Although the proposal was accepted by the members present, some amendments to the resolution were requested.

[26]        Specifically, it appears that Mr. Thomas wanted the resolution to make reference to the section of CCFA's by laws (the "By laws") which was believed to authorize the board to enact its plan.

[27]        The amended version of the resolution, dated May 14, was submitted to the board at its May 28, 2008 meeting (the "Resolution").[2] It was signed by those present, including Mr. Blaize, Ms. François and Mr. Parkinson[3] even though the latter was absent at the previous meeting.

[28]        Ms. François and Mr. Parkinson have attempted to question the genuineness of the Resolution without success. In the end, Ms. François retreated and stated she simply did not remember signing it.

[29]        Mr. Parkinson, on the other hand, insisted that the Resolution was not the document he had signed.  He suggested that he had put his signature to another text and implied that the Resolution had been tampered with.

[30]        When confronted with the original of the Resolution, he changed his version without batting an eye, saying that he had indeed signed the Resolution but that it was supposed to be amended subsequently.

[31]        His testimony on this and other subjects is not credible and is contradicted by contemporaneous documents.

[32]        Indeed, Mr. Parkinson did not simply sign the Resolution. He insisted upon it. Such was his agreement with the plan.

[33]        The Resolution confirms the board decided in favour of :

§  The "dissolution" of the names CCFA[4] and Carifiesta[5] after the 2008 Carnival.

§  The creation of a new foundation to administer the Carnival.

[34]        The board mandated Mr. Antoine "to be responsible" for the execution of the plan in consultation with it. Consequently, he hired a consultant to incorporate the Fondation and dissolve CCFA.[6]

[35]        The City was kept informed of this plan. Indeed, it was presented by Mr. Parkinson at a meeting with City representatives on July 15, 2008.[7]

[36]        In his PowerPoint presentation, Mr. Parkinson specifically referred to the incorporation of a new "not-for-profit corporation", a "new restructured directorship" and "new board policies and by-laws".[8]

[37]        The conflict came to a head during a board meeting held in mid December 2008. Mr. Antoine advised the members of the board that the Fondation had been incorporated but that the composition of its board had yet to be. He indicated they would meet within the next 48 to 72 hours to discuss the matter.

[38]        There is contradictory evidence as to whether Mr. Blaize, Mr. Parkinson, Ms. François and Mr. Thomas were asked to join the board of the Fondation but refused to do so or if they were ever even asked to join.

[39]        The evidence adduced at trial brings the Court to conclude that they were never asked. Neither the "Déclaration initiale d'immatriculation" of the Fondation[9] which predates the mid December meeting, nor the information available from the Registraire des Entreprises[10] mentions them. It thus appears that they were excluded from the Fondation at the time of its incorporation.

[40]        Why this occurred remains unclear.

[41]        Although they were not invited, the excluded members attended the next meeting of the board. The police was called as discussions between the protagonists became heated.

[42]        What follows is somewhat peculiar.

[43]        CCFA held a general membership meeting on January 25, 2009 at the ousted board members' prompting.

[44]        During this meeting, Messrs Antoine, Grell, Parris and Hickson were removed from their position on the board of directors of CCFA. They were replaced by Messrs Blaize and Parkinson and Ms. François.[11]

[45]        Mr. Antoine did not recognize the authority of the general membership to disavow the earlier decision made to dissolve CCFA and to replace him as its president.

[46]        He continued to represent himself as such. Furthermore, basing himself on the Resolution, he proceeded to the striking off of CCFA[12] while Mr. Blaize and his group endeavoured to keep its incorporation active and in force.[13]

[47]        On May 28, 2009, CCFA was stricken off.

[48]        On June 9, 2009, the Fondation filed an amended declaration and added the names "Association des festivités culturelles des Caraïbes (AFCC)", "Caribbean Cultural Festivities Association (CCFA)" and "Carifiesta Parade" to its own name.[14]

[49]        On June 16, 2009, CCFA was reregistered.[15] It is now active[16] as is the Fondation.

4.2.2    Analysis

[50]        The Fondation claims it has a right to use CCFA's name and trademark as both fell in the public domain when CCFA was stricken off.

[51]        This argument can't stand.

[52]        The striking off of CCFA was the result of Mr. Antoine's actions. He argues he was authorized to do so by the Resolution.

[53]        His actions may have been rooted in the Resolution but they were illegal nonetheless.

[54]        The Resolution authorized Mr. Antoine to take the necessary steps for the "dissolution" of the names and the creation of a new non-profit organization to replace CCFA in the administration of the Carnival.

[55]        While the board of CCFA could legally adopt such a resolution and go so far as to prepare for the dissolution of CCFA, it could not proceed with the actual striking off without the approval of 2/3rd of the paid-up membership as required by the By laws.[17]

[56]        The board of CCFA never received such approval, on the contrary.

[57]        Mr. Antoine relies on article 6.8(a) of the By laws, cited in the Resolution, to allege that the general membership need not be consulted and indeed could not decide against the Resolution.

[58]        Article 6.8(a) reads as follows :

6.8(a) neither an officer, nor a particular director, nor an outsider, nor the membership can overrule or direct board decisions on matters that been conferred upon the by-laws(sic).

[Our underlining]

[59]        However, article 6.8 states :

6.8 General Powers : The board of directors shall take such steps, as they may deem necessary to enable the corporation or/organization to operate and conformity with the Caribbean Cultural Festivities association by-laws to promote the aims and objectives of the organization, except those that may be specifically excluded and retained for exercise by the general membership only at a general meeting, and (…).

[60]        The power to authorize the dissolution of CCFA was specifically "retained for exercise by the general membership" at a general meeting in virtue of article 15.1(a) of the By laws. No such meeting occurred. Mr. Antoine was therefore not legally authorized to dissolve CCFA.

[61]        The Fondation cannot rely on this illegal dissolution of CCFA to claim its name and trademark.

[62]        CCFA is entitled to the injunctive relief it seeks on this issue against the Fondation. However, as it has not been shown that Mr. Antoine personally claimed any right to CCFA's name or trademark, CCFA's recourse will fail against him.

 

 

 

4.3       Organization of the Carnival

4.3.1    Introduction

[63]        The principal issue at stake under this heading concerns the right to ask for and obtain the financial and technical support of the City, without which, it is impossible to organize and hold the Carnival.

[64]        Not all disputes can be settled by a Court.

[65]        In order for the Court to intervene, there must be a legal basis for it to do so. The mere fact that parties cannot sort out their issues by themselves is not sufficient.

4.3.2    Factual context

[66]        The Program is revised and administered annually. Still the evidence presented shows that, over the years, its general outline has been as follows.

[67]        The City invites non-profit organizations which are admissible to the Program to apply for the financial and technical support, within the parameters of the Program.

[68]        The applications are submitted to a selection committee which evaluates them and makes its recommendations to the director of the Program.

[69]        After review, he sends the recommended projects onto the decision making authorities of the City for approval.

[70]        As this process involves allocation of funds, use and closing of public streets, logistical assistance etc., various decision-makers are involved including the executive committee, the City council and borough councils.

[71]        The amount allocated to the Program and, hence, to the individual projects chosen depends on the City budget which is adopted annually.

[72]        Once a project is approved by the City, various protocols are signed by the parties involved. Thereafter, the events are planned over a number of months.

4.3.3    The law

[73]        It is well established that when a public authority such as the City exercises a discretionary power to make policy decisions, it is not accountable before the courts but before the electorate or the legislature.

[74]        It is only when the authority moves into the operational sphere that it may be held accountable to the courts.[18]

4.3.4    Analysis

[75]        The parties are asking that the Court, directly or indirectly, intervene in the exercise of the City's discretionary power to entertain and accept either's eventual application to organize future Carnivals.

[76]        Neither has shown a color of right to allow the Court to prevent the other from making such an application.

[77]        Neither has shown it holds a proprietary right on the Carnival, the parade or their organization nor that they could hold such right as one may not hold a copyright on ideas, but only on one's expression of them.[19]

[78]        The decision to adopt a Program, the evaluation of applications received and the decision to support any given event clearly reside in the City's discretionary power.

[79]        The Court has no right to intervene in the Program at the policy stage to decide whom the City is to choose between competing groups or even to decide if the City must choose between them.

[80]        The fact that CCFA was chosen by the City to organize the Carnival between 1995 and 2008 does not create an acquired right in its favour nor prevent anyone else from filing an application with the City to organize it.

[81]         Moreover, at the time of the hearing, the 2011 Program had not even been published nor has the City budget been adopted. How could the Court even entertain the thought of binding the City in its application of a program that as yet to be adopted?

[82]        The parties' state that the City has refused to settle the issue and choose between them. They suggest it is now up to the Court to do so as no one else wants to resolve this dispute.

[83]        That may be so, but it is the City's privilege not to intervene in the parties' dispute. This does not empower the Court to meddle in its affairs nor give it jurisdiction to do so.

 

 

4.4       Payment of CCFA debts

4.4.1    Introduction

[84]        The Fondation is asking that the Court order CCFA "to pay all its debts that have occurred after the May 14th resolution and that were not related to the dissolution process".

4.4.2    Factual context

[85]        During its December 17, 2008 meeting, the board agreed that all CCFA's outstanding debts be paid by the Fondation.[20]

[86]        This was only logical if CCFA was to be dissolved and the Fondation was to replace it.[21]

[87]        Moreover, this became necessary by virtue of sections 32(1)(a)(i) and 32(3) of the Canada Corporation Act[22] if CCFA was to be allowed to surrender its charter.

[88]        Little evidence was adduced on this issue except for Mr. Antoine testifying that the Fondation has reimbursed approximately $15 000 of CCFA's debts which he estimates at $140 000.

4.4.3    Analysis

[89]        A person wishing to assert a right has the burden of proving the facts on which his claim is based.[23]

[90]        For the specific execution of an obligation to be the object of an injunction order, it must be clearly circumscribed.

[91]        In the case at hand, the Fondation has not proven the precise amount of the debt it has assumed on behalf of CCFA nor the amount of debt it has reimbursed nor the amounts it has incurred in the dissolution process and for which it is not claiming.

[92]        Moreover, the conclusion sought is imprecise and is not susceptible of execution.

[93]        The Fondation's recourse in this respect must also fail.

 

 

4.5       Costs

[94]        CCFA has elected to institute its recourse not only against the Fondation but also against Mr. Antoine and all the administrators of the Fondation.

[95]        No conclusions were sought against these individuals as the whole case revolved around the two organizations.

[96]        All of these defendants were represented by the same attorney and produced a common plea and cross demand.

[97]        It is therefore in order to take this in consideration when granting costs.

[98]        FOR THESE REASONS, THE COURT :

[99]        GRANTS the Association des festivités culturelles des Caraïbes' action against the Fondation de développement du Carnaval de Montréal, in part;

[100]     ORDERS that Defendant The Fondation de développement du Carnaval de Montréal either directly or indirectly be prohibited from representing itself as owning the names "Carifiesta", "Association des festivités culturelles des Caraïbes", "AFCC", "Caribbean Cultural Festivities Association" or "CCFA";

[101]     THE WHOLE WITH COSTS;

[102]     DISMISSES the Association des festivités culturelles des Caraïbes' action against Henry Antoine, Jack Grell, Arnold Parris, Sophie Adams, Anthony Dyeth, Agatha Alexander, Ian Pierre, Harry Bissoon, Patrick Hickson, Lynette Edwards and Terri Ann Dufeal, WITHOUT COSTS;

[103]     DISMISSES the Association des festivités culturelles des Caraïbes' action against the City of Montreal, WITH COSTS;

[104]     DISMISSES the action by Fondation de développement du Carnaval de Montréal's action Henry Antoine, Jack Grell, Arnold Parris, Sophie Adams, Anthony Dyeth, Agatha Alexander, Ian Pierre, Harry Bissoon, Patrick Hickson, Lynette Edwards and Terri Ann Dufeal;

[105]     WITH COSTS against the Fondation de développement du Carnaval de Montréal in favour of the City of Montreal and of the Association des festivités culturelles des Caraïbes respectively.

 

 

__________________________________

DANIEL W. PAYETTE, S.C.J.

 

Me Roger Vokey

Shaffer & ass.

Attorney for the plaintiff

 

Me Catherine Delisle

Charest Gagnier Biron Dagenais

Attorney for the defendant Ville de Montréal

 

Me Jean-Pierre Gagné

Attorney for the defendants Henry Antoine and Fondation de développement du Carnaval de Montréal et al

 

 

Date of hearing:

November 1st, 2nd and 3rd, 2010

 



[1]     Exhibits D-35, D-4.

[2]     Exhibit D-4.

[3]     Exhibit D-3A, Mr. Bissoon signed later.

[4]     Caribbean Cultural Festivities Association.

[5]     A registered trademark used by CCFA for the Carnival since 1996, exhibit P-3.

[6]     Exhibits D-5, D-37.

[7]     Exhibit D-34, see also D-7.

[8]     Exhibit D-34.

[9]     Exhibit D-11.

[10]    Exhibit D-1.

[11]    Exhibit P-7.

[12]    See exhibits D-13, D-16 to D-22, D-24 to D-26.

[13]    See exhibits D-14, D-27, P-13, P-14.

[14]    Exhibits D-1 and D-28.

[15]    Exhibits D-2, P-2.

[16]    Exhibit P-17.

[17]    Exhibit P-6, art. 15.1(a).

[18]    Laurentides Motels Ltd c. Beauport (Ville de), [1989] 1 R.C.S. 705 ; see also Picard c. Conseil des commissaires de la Commission scolaire Prince-Daveluy, [1991] R.J.Q. 167 (C.S.).

[19]    Festival de théâtre de rue de Shawinigan inc. c. Shawinigan (Ville de), AZ-50451508 , par. 14 (C.S); Éditions Hurtubise H M H Ltée c. Cégep André-Laurendeau, [1989] R.J.Q. 1003 (C.S.).

[20]    Exhibit D-10.

[21]    See exhibit D-18.

[22]    R.S.C. 1970, c. C-32.

[23]    Art. 2803 C.c.Q.

AVIS :
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