Michael Snow has lost a bid to cut short his legal battle with a Toronto developer over a public artwork that the well-known Canadian artist was to have created for the downtown Festival Tower condominiums.
Mr. Justice Ted Matlow ruled Wednesday that he couldn’t offer a summary judgment – a judicial decision without benefit of trial – in favour of the 83-year-old Toronto-based artist. The judge said that because the “issues” pertaining to Mr. Snow’s action against King & John Festival Corp. are sufficiently “genuine” and complex they, in fact, require a trial. King & John was established in 2003 by developer The Daniels Corp. and movie producer Ivan Reitman. The producer, with his two sisters, owns the land on which Daniels erected the 40-storey Festival Tower and the five-storey headquarters of the Toronto International Film Festival (now called TIFF Bell Lightbox).
A representative for Mr. Snow said Wednesday his client would have to review the two-page decision before deciding what to do next.
Judge Matlow’s ruling flows from arguments he heard Dec. 8 last year from counsel for Mr. Snow as well as from Michael Cohen, lawyer for the Daniels Corp. Mr. Snow originally sued King & John, Daniels and Mr. Reitman, among others, in the summer of 2010 for close to $1-million, asserting breach of contract. Daniels executives allege there was no contract, and since Mr. Snow failed to meet “terms of reference” it deemed necessary for drafting a contract, relations were severed in July, 2008. At the Dec. 8 hearing, Mr. Cohen called for the dismissal of the motion for summary judgment, arguing the issue required a trial.
Had Mr. Snow’s artistic conception been realized, he would have installed a floor-to-ceiling work called Tower of Film in the exterior window of the tower’s John Street lobby. Made of plastic laminate, the installation would have emulated a celluloid strip containing moving images of an architectural rendering of Festival Tower.
Last December’s one-day hearing represented an attempt by Mr. Snow’s counsel Lawrence Theall to get Judge Matlow to force the Festival Tower partners to pay his client, among other costs, $671,000 “less any savings determined by the court.” The $671,000 is the estimated gross value of the tower art work, which was conceived as a way for the developer to meet a public-art obligation under Ontario’s Planning Act. In exchange for increases in height and density, a developer can agree to bankroll a site-specific artwork with a “suggested” value equal to “1 per cent of the gross construction costs of the project.”
The dispute dates to the spring of 2006, when Mr. Snow’s counsel says the artist accepted a commission from Festival Tower to prepare an installation to meet its public-art criterion. Mr. Snow and his agent Ian McCallum allege this acceptance was instrumental in Toronto city council approving Festival Tower’s public-art plan and its building permit. The artist’s original conception was to create a large sculptural ribbon that would snake around the height of the tower. But after concerns were expressed about safety and the technology required to make the artwork, it was abandoned and more modest proposals, including one involving holographic imagery, were pursued.
Both sides last December agreed that no formal, binding agreement was ever drafted between Mr. Snow and King & John. However, Mr. Theall argued that Mr. Snow’s continual involvement in the project between mid-2006 and mid-2008 constituted “a contractual relationship.” He pointed to largely “encouraging” e-mails, letters and meetings involving, at various times, all the principals in the project.
Mr. Theall criticized Daniels Corp. executive vice-president Niall Haggart for allegedly “taking over the process” in the spring of 2008 by demanding that Mr. Snow and his agent prepare “a more fully realized mockup” of Tower of Film to present to an art advisory committee for approval before moving to full contract. The committee never got to decide the matter because, Mr. Theall alleged, Mr. Haggart unilaterally pulled the plug on the process, informing Mr. Snow that Daniels Corp. would now have to look elsewhere to realize the building’s public-art component. The committee is made up of artists, representatives of the developer and a City of Toronto official,
Mr. Cohen countered that Mr. Haggart was only acting as a responsible corporate executive. Mr. Cohen said that Mr. Snow had failed to meet the “terms of reference” King & John and art consultant Catherine Williams had prepared earlier. Among these terms was to provide “firm costs … for all phases of the project.” “No sensible notion” of this ever came forward, Mr. Cohen said.
The lawyer noted that King and John had given Mr. Snow a total of $25,000 between 2006 and 2008. But this money wasn’t “on account of contract,” Mr. Cohen said. It was “development money,” paid “out of high regard for [Mr. Snow’s]acumen and talent” and because the developer was “desperate” to have an artist of his fame and stature “on-board.”
Mr. Cohen also said that if Mr. Snow and his associates believed Mr. Haggart had short-circuited the process, they could have appealed to the art advisory committee – whom Mr. Cohen characterized as ‘the ultimate decider” – or asked to appeal to it. But no action was taken in this regard, Mr. Cohen said.
In his decision, Judge Matlow noted that there was “much evidence before [him] supporting Mr. Snow’s position and “much evidence that is contradictory and supports the position of [King & John]” As a result, the judge said, “it would be unsafe for me to attempt to resolve the conflicts in the evidence regarding whether or not a binding final contract was ever made by the parties,” even though no formal contract was inked. “I cannot confidently make findings of reliability of the witness’ evidence or confidently draw reasonable inferences from the evidence.”Report Typo/Error