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COllrt File No, CV-12-18056

ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: HOCKEYFEST INCORPORATED
Plaintiff -and-

GRAND RNER CONSERVATION AurnORlTY

Defendant

STATEMENT OF DEFENCE
1, The Defendant, Grand River Conservation Authority (hereinafter "GRCA"), admits those allegations in paragraphs 2, J and 4 of the Statement of Claim,

2, The Defendant, the GRCA, denies those allegations in paragraphs 9, 11, 12, 13, 14, 15, 16,17,18,19,20,21 and 22 of the Statement of Claim.

3, The Defendant, the GRCA, has no knowledge of those allegations in paragraphs 5, 6, 7, 8 and 10 of the Statement of Claim.

4, On or about April 17, 2012, the ORCA and Hockeyfest Incorporated (hereinafter "Hockeyfest") executed a contract dated the 26 th day of March, 2012, The coniract provided Hockeyfest with exclusive use of portions of the Brant Conservation Area between 6:00 A.M. on June I, 2012 and continuing to 12:00 A.M. on June 4, 2012 subject to the conditions and in accordance with the covenants, obligations and agreernents contained in the contract.

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5. Pursuant to the contract, Hockeyfest was responsible for all advance planning and operation of a three day rock concert to be held in the Brant Conservation Area during the June 1, 2012 weekend. 6. In particular Hockeyfest provided the following contractual covenants to GRCA: "6. d. to comply with all federal, provincial and municipal statutes, laws, bylaws, regulations and ordinances as may be applicable to the use of the Event Site and the Conservation Area from time to time;
f to have available adequate and sufficiently trained volunteers to oversee control and order of the Event, including but not limited to the conduct and actions of all organizers, attendees and participants of the Event;

g. to be responsible for the retention and associated costs for paid-duty police officials to assist with management and control of the Event, and to ensure that these paid-duty police officials are present on site during the following times:
(i)

From 5:00 PM on June 1st, 2012 to 2:00 AM on June 2nd From 2:00 PM on June 2nd , 2012 to 2:00 AM on June
3'd

(ii) (iii)

From 2:00 PM 011 June 3'd, 2012 to 2:00 AM on June 4th

h. to be responsible for the retention and associated costs for qualified security staff for the Event, who will be on site at all times during the Term at numbers to be determined in consultation with the Authority." 7, The contract also contains a commitment by Hockeyfest to limit attendance at the Event to a maximum oftwenty-five thousand (25,000) individuals for anyone day. 8. Use of the Brant Conservation Area involves certain inherent risks for the operation of a three day rock concert. a, It is surr.ounded on three sides by the Grand River. b. It is the site of a weir darn. c. There is a very large swimming pool within the area.

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d. The' conservation area would also be open to general public use during the weekend. e. Access to the conservation area is achieved from two rural roads with limited visibility, no sidewalks, and no overhead lighting. This creates safety risks for persons leaving the area at night returning to vehicles parked offsite. Limited public roadway access also creates risks for ensuring emergency vehicle access to the conservation area. 9. It was fundamental to the contract that the three day rock concert be conducted safely, within the requirements of the law and with the involvement of dedicated Brantford Police SeIVices personnel. 10. At all material times, Hockeyfest's plans for the three day rock concert included the sale of alcohol. This required that Hockeyfest comply with the planning, approval and operational requirements imposed by the Alcohol and Gaming Commission of Ontario pursuant to the Liquor Licence Act. II. In order to comply with its contractual covenants, Hockeyfest needed, inter alia, to have the following arrangements concluded well in advance of the three day rock concert: a. It needed to have contractual agreement with a provider of private. security services for the entirety of a three day rock concert, b. It needed to have contractual agreement with a provider .of private emergency medical services for the entirety of a three day rock concert. c. It needed to have a security plan approved by the Brantford Police Service. d. It needed to have agreement with the Brantford Police SeIVice to provide paid duty police officers at the site during the times specified in the contract. e. It needed to have agreement with the Brant County OPP detachment to provide paid duty police officers at an offsite parking location as well
lIB

being in a

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position to deal with both vehicle and pedestrian traffic on the rural roadways accessing the Brant Conservation Area.

f. It needed to have agreement with County of Brant Ambulance Service to provide

sufficient dedicated ambulance coverage for an event involving significant numbers of attendees. g. It needed to have a fire safety plan approved by the Brantford Fire Department. h. It needed to comply with conditions required by the Alcohol and Gaming Commission of Ontario. 12. Hockeyfest was involved in a meeting with the Alcohol and Gaming Commission of Ontario on February 10, 2012 to initiate discussion of Hockeyfest's plan to be a licenced event and what that would require. 13. Hockeyfest was involved in meetings with the Alcohol and Gaming Commission of Ontario as well as emergency service providers on April 10, 2012 and May 16, 2012. Hockeyfest was made fully aware of the requirements of each agency and of multiple deficiencies in the plans Hockeyfest was required to submit to these agencies. 14. Prior to May 25,2012, inquiries of the GRCA to Hockeyfest about these issues were met with non-specific assurances that the requirements would be complied with. IS. On Thursday. May 24, 2012, the security firm designated by Hockeyfest advised the Brantford Police Service and the GRCA of changes in Hockeyfest's security plan. Hockeyfest wrilaterally reduced the number of private security personnel and paid duty police provided for in its security plan. 16. On Friday, May 25, 2012, representatives of GRCA attended a meeting with representatives of the Alcohol and Gaming Commission of Ontario, the Brantford Police Service, the Ontario Provincial Police, the Brantford Fire Department and the City of Brentford. In this meeting the GRCA was advised that the revised securitY plan submitted by Hockeyfest was not satisfactory to the Brantford Police Department. Hockeyfest had

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not submitted a fire plan to the Brantford Fire Department. Hockeyfest had not submitted a plan. to the Alcohol and Gaming Commission of Ontario. Hockeyfest had not made arrangements with the Ontario Provincial Police -(0 deal with ofrnite parking nor were there any arrangements to move people or vehicles safely to or from the conservation area. 17. On Friday, May 25, 2012, the Brantford Police Service unequivocally withdrew its support and refused to provide paid duty officers. 18. By Friday, May 25, 2012, Hockeyfest's breach of contract with ORCA was inevitable. Hockeyfest was not capable of organizing and safely conducting a three day rock concert involving thousands of participants of all ages at the Brant Conservation Area 19. Hockeyfest's conduct was without legal excuse or practical justification. 20. The consequence of Hockeyfest's anticipatory repudiation of the' contract was to discharge ORCA from further contractual obligations. 21. On Friday, May 25, 2012, representatives of ORCA advised Hockeyfest that the three day rock concert would not proceed at the Brant Conservation Area. 22. On June I, 2012, many thousands ofpeople would arrive at the Brant Conservation Area expecting a rock concert. ORCA had an obligation to act promptly and publicly. On Saturday, May 26, 2012, ORCA issued a press release. 23. At all times, Hockeyfest was fully aware of the deficiencies in its plans and arrangements. Further notice from ORCA or time to rectify deficiencies was neither required by contract, nor reasonably required in the circumstances. 24. Following May 26, 2012, Hockeyfest continued to advertise and promote the concert. Hockeyfest entered into discussions with the Mayor of Brantford and the Brantford Police Service. The ORCA was not a party to those discussions.

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25, On Tuesday, May 29,2012, all public emergency organizations that would be involved in this three day rock concert met with the private security and paramedic :firms designated by Hockeyfest. 26, As of May 29, 2012, neither the private security, nor the private paramedic firms were under contract with Hockeyfest. Neither firm was prepared to commit their services for the entirety of the weekend. 27. As of May 29, 2012, the Brantford Police Service had not been contracted to provide officers dedicated to the event. 28. As of May 29, 2012, Brant County opp had not been contracted to provide traffic and safety services. No arrangement!; had been made to ensure the safety of pen;ons exiting the conservation area walking along rural roads to offsite parking. No arrangements had been made to ensure access to the conservation area by ambulance or fire department vehicles_ 29. As of May 29, 2012, no arrangements had been made with the CountY of Brant Ambulance services to provide sufficient dedicated ambulance coverage for an event involving significant numbers of attendees. 30. The Brantford Fire Department received Hockeyfes1:'. fire safety plan on Monday, May 28,2012. As of May 29,2012, the plan did not meet the requirements of the Ontario Fire Code. Also on May 29, 2012, the Brantford Fire Department placed the GRCA on notice that the GRCA would be liable for Hockeyfest's breach of the Fire Code. 31. GRCA issued a second press release late in the afternoon of Tuesday, May 29, 2012 confirming its decision that the contract was at an end and the three day rock concert would not proceed at the Brant Conservation Area. 32. GRCA denies that Hockeyfest hlUl suffered damages as claimed. GRCA denies that any damages were caused by it and in the further alternative such damages are excessive, remote and unmitigated.

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33. GRCA asks that this action be dismissed against it with full indemnity for costs.

July 26, 2012

PAVEY, LAW & WITTEVEEN LLP

Barristers & Solicitors 19 Cambridge Street P.O. Box 1707, Station Galt Cambridge, ON NIR 7G8 BrianR. Law LSUC No. 16912P Telephone: (519) 621-7260 Fax: (519) 621-1304 Lawyers for the Defendant

TO:

KiRWIN PAR.TNERS LLP

423 Pelissier Street Windsor, ON N9A 4L2 . DanteD. Gatti LSUC No. 332590 Gregory D. Wrigglesworth LSUC No_ 465330 Telephone: (519) 255-9840 Fax: (519) 255-1413 Lawyers for the Plaintiff