Jazz on the Mountain organizers sue municipality 

Organizers are seeking $704,000 for several alleged breaches of a duty of care

click to enlarge PHOTO BY SCOTT BRAMMER/ COASTPHOTO.COM - jazz fest The Jazz on the Mountain at Whistler Society has launched legal action against the RMOW stemming from the 2011 festival.
  • Photo by Scott Brammer/ coastphoto.com
  • jazz fest The Jazz on the Mountain at Whistler Society has launched legal action against the RMOW stemming from the 2011 festival.

Jazz On the Mountain At Whistler Society has filed a notice of claim suing the Resort Municipality of Whistler for $704,000 plus damages and punitive damages, stemming from its 2011 summer festival.

Organizers allege that the RMOW is in breach of a duty of care for compromising the festival's financial viability, refusing to offer financial and conceptual support and allocating Resort Municipality Initiative (RMI) funds to other concerts slated to run around, or during, the festival's Labour Day weekend date. "RMOW... has made it impossible for JOMAW to continue to produce a JOMAW event in Whistler," the claim states.

Organizer Arnold Schwisberg, who underwrote the event, filed the claim with the B.C. Supreme Court on Feb. 28. "Let me emphasize I didn't want to do this," Schwisberg said in an interview. "I had no fewer than 12 meetings with the RMOW trying to resolve this. They don't want to resolve it. I'm taking this step because it's the only step left to me given that I'm dealing with a party on the other side that will not acknowledge they've done anything to be criticized (about) and will not discuss any resolution."

In the claim, he says that the RMOW breached its duty of care in several ways. For example, the document says that Schwisberg had been working with the

Globe and Mail to secure editorial coverage and arrange advertising for the festival when John Rae, the RMOW's manager of strategic alliances, "assumed control of the editorial content" and, as a result, the coverage barely mentioned the jazz festival.

JOMAW also alleges that the RMOW was in breach of duty of care when it didn't offer financial assistance to the festival, but allocated $100,000 to Wanderlust, a for-profit yoga and music festival, which would be in competition with Jazz on the Mountain. Furthermore, the RMOW added to the festival's competition when it decided to run a free concert series with big-name acts like the Barenaked Ladies and Tom Cochrane, organizers allege.

"Rae and (Jan) Jansen (RMOW's general manager of resort experience) were told specifically by industry experts that the concerts (planned) would seriously harm JOMAW and would materialistically and foreseeably compromise JOMAW ticket sales. RMOW proceeded recklessly and irrespective of this self-evident conclusions," the claim says.

On top of that, it reads, the RMOW took out ads in Vancouver media that caused festivalgoers to confuse the municipality's free concert series with JOMAW's ticketed events. "RMOW caused JOMAW to suffer a loss of revenue for ticket sales," the claim says. "Would-be concert-goers during Labour Day Weekend 2011 (presented) themselves at WOP (Whistler Olympic Plaza) believing that admission was free, and then declined to buy a ticket upon being informed that was not the case."

The claim also states that the RMOW breached the trademarks act by misrepresenting JOMAW, making false and misleading statements about the event and confusing the public. Organizers allege that they were misled about the RMOW being an expert event producer, particularly after they weren't informed that with the fence height at Whistler Olympic Plaza they would have to lower screens or take them down to keep people without tickets from being able to see them. They say the RMOW also reneged on promises to provide logistical support like fences and security.

In the end, ticket sales for the festival were less than nine per cent of the 9,000 to 15,000 people organizers expected, the claim says.

Schwisberg was willing to go ahead with plans for a 2012 installment, but when $100,000 of RMI funding was given to Wanderlust for its concerts and $175,000 allocated for another free concert series, both competitors of JOMAW, which didn't receive funding, he decided it wouldn't be commercially viable.

"If you had asked me, 'What do you hope to achieve by resolving things with the municipality?' before May 2012 I would say, 'I want to produce another Jazz on the Mountain at Whistler,"' Schwisberg said. "When the municipality decided we're not giving you any money, that's one thing. But then to say we're going to use more public money to have more free concerts on the Labour Day weekend, which is supposed to be the Jazz on the Mountain weekend, they rendered the event fundamentally non-viable. How can you sell tickets to a live music show when the municipality is using public funds to put on a free concert down the street?"

In the meantime, Schwisberg says he hopes the lawsuit will prompt Whistlerites to consider the future of ticketed concerts in town.

"The bigger problem you have now — I'm speaking to Whistler as a community — is that so much damage has been done to the market for live music I don't know whether any music festival that depends to any degree to ticketed events can succeed in Whistler," he says. "The municipality has built an expectation, and it's gone back a number of years, that live music is supposed to be free. And it continues to reinforce that expectation and as long as the market expects live music is for free then no music-first festival in Whistler can ever really succeed."

The RMOW must file a response within 21 days of receiving the notice. A spokesperson said the municipality does not comment on ongoing legal issues.

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