Court File No. 16-58947 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: SEPTEMBER SEVENTH ENTERTAINMENT LIMITED -and- iste THE FELDMAN AGENCY, JANN ARDEN, J.A. TOURS INC., BRUCE ALLEN TALENT, JOHNNY REID, JOHNNY MAC ENTERTAINMENT INC. and WALKIN’ THE DOG LTD. f.s.0. COWBOY JUNKIES Defendants -and- JOHNNY REID Plaintiff by Counterclaim -and- SEPTEMBER SEVENTH ENTERTAINMENT LIMITED Defendant by Counterclaim STATEMENT OF DEFENCE AND COUNTERCLAIM 1. The defendants admit the allegations contained in paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19, 20, 21, 22 and 23 of the Statement of Claim. 2. The defendants deny the allegations as contained in paragraphs 1,.2, 3, 4, 5, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44 and 45 of the Statement of Claim. 3. The defendants deny that the plaintiff is entitled to the relief claimed, or any relief, and state that the amounts claimed are barred by the specific terms of contractsentered into between the plaintiff and Jann Arden, the plaintiff and Johnny Reid and the plaintiff and Cowboy Junkies (the “Contracts”. 4. With respect to the allegations asserted against the defendant the Feldman Agency (“Feldman”), Feldman specifically pleads and relies upon the express wording in the Contracts under the heading “Role of Agent Feldman Agency Inc.” and, in particular, the terms that state as follows: [Feldman] acts only as agent for ARTIST and assumes no liability here under and in furtherance thereof and for the benefit of the FELDMAN AGENCY INC,, it is agreed that neither PURCHASER nor ARTIST will name or join the FELDMAN AGENCY INC. or any of its officers, directors, principals, agents, employees and representatives as a party in any civil action or suit anywhere in the world, arising out of, in connection with, or related to any acts of commission or omission pursuant to or in connection with this agreement by either PURCHASER or ARTIST. 5. Feldman pleads that on the clear terms of the Contract entered into between the lst ond the defendant ans, fi li ay be! edhe or continued aginst 6. In the altemative, and in any event, the Contracts specifically address the limitations on liability of the artists under the heading “Limitation of Liability” and state: In no event shall ARTIST (nor any of their respective agents, representatives, principals, employees, officers, directors and affiliates) be liable to PURCHASER (or any third-party) or eny indirect, incidental, consequential, special, punitive (or exemplary), or any similar damages, including, without limitation, lost profits, loss of revenue or income, cost of capital, or loss of business reputation or opportunity, as to any matter under, related to, or arising out of the Engagement or the transactions contemplated by this Agreement, whether in contract, tort or otherwise, even if ARTIST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, UNDER NO CIRCUMSTANCES SHALL THELIABILITY OF ARTIST (OR ANY OF THEIR RESPECTIVE AGENTS, REPRESENTATIVES, PRINCIPALS, EMPLOYEES, OFFICERS, DIRECTORS OR AFFILIATES) EXCEED, IN THE AGGREGATE, AN AMOUNT EQUAL TO THE LESSER OF () THE AMOUNT OF REASONABLY NECESSARY OUT-OF- POCKET EXPENSES DIRECTLY INCURRED BY PURCHASER IN CONNECTION WITH THE ENGAGEMENT; OR (I) THE AMOUNT OF THE GUARANTEE WHICH ARTIST AND/OR PRODUCER HAVE ACTUALLY RECEIVED IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, PURCHASER AGREES THAT IT SHALL NOT (AND SHALL CAUSE ITS AFFILIATES NOT TO) SEEK INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE (OR EXEMPLARY), OR ANY OTHER SIMILAR DAMAGES AS TO ANY MATTER UNDER, RELATING TO, OR ARISING OUT OF THE ENGAGEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. (Hereinafter referred to as the “Limitation of Liability cleuse".) 7. Feldman pleads and relies upon all of the terms of the Contract and, in particular, the exclusion clause related to claims against Feldman and the Limitation of Liability clause. 8. In the further alternative, Feldman pleads thet the plaintiff has suffered no damages as a tesult of any of its alleged conduct as particularized in the Statement of Claim, which conduct is denied. 9. With respect to the claims pleaded in paragraphs 10-15, the defendant Jann Arden pleads and relies on the Limitation of Liability clause and states that no damages are recoverable against her for any of the claims asserted. 10. With respect to paragraph 13 and 14 of the Statement of Claim, the defendant Jann’Arden pleads thet she fll il and had to reluctantly withdraw her services, as she /11, The defendant Jann Arden pleads and relies upon the clause in her contract with the plaintiff under the heading “Excused Performance”. In particular, she was entitled to terminate the contract and have no obligations pursuant to the Contract in the event of a “Force-Majeure Event”. A Force-Majeure Event is defined in the Contract as including: Death, disability, illness, injury or other inability to perform of ARTIST, any of ARTIST’s musicians, other performers, crew, representatives or advisors, any of ARTIST’s family members, any of ARTIST’s key personnel or any other person personally known to ARTIST whose death, disability, illness or injury adversely impacts ARTIST ability to perform in connection with the Engagement. 12. The plaintiff does not allege that the defendant, Jann Arden, was not ill and was able to perform. Despite this, when Ms. Arden informed the plaintiff on August 24, 2016 that she was unable to perform due to illness, the plaintiff failed to announce this cancellation until August 27, 2016. This late disclosure was not a normal way to proceed in the music industry. 13. Pursuant to the terms of the Contract, no liability can attach to the defendant Ms. Arden as a result. 14, Further, the defendant Jann Arden pleads and relies upon the Limitations of Liability clause and states that none of the damages claimed against her are recoverable at all pursuant to the terms thereof. 15. In the further alternative, the defendant Jann Arden pleads that the radius clause contained in the Contract is overly broad and restrictive and is therefore void and of no effect and is severable from the Contract.16. In the further alternative, the defendant Jann Arden pleads that the plaintiff has suffered no damages as a result of any breach of the radius clause, which breach is denied, 17. With respect to the allegations'in paragraphs 16, 17, 18, and 19 of the Statement of Claim, the defendant Cowboy Junkies pleads that it performed pursuant to the terms of its Contract with the plaintiff and fulfilled its obligations pursuant to the terms of the Contract. 18. The defendant Cowboy Junkies pleads and relies upon the Limitations of Liability clause and states that the plaintiff is barred from seeking any of the damages as outlined in the Statement of Claim against this defendant. 19, Fue, and in he aerate, tant Cowboy Tonkes pled tat iheraius ERT TD UT a TTAB on 20. In the further alternative, the defendant Cowboy Junkies pleads that the plaintiff 21. Cowboy Junkies adopt and rely upon the Limitation of Liability clause in its contract with the plaintiff and state that all damage claimed as set out in the Statement of Claim are not recoverable as a result. 22. With respect to the allegations contained in paragraphs 20-24 of the Statement of Claim, the defendant Johnny Reid pleads that, as required pursuant to the terms of theContract, he performed on Sunday, August 28, 2016 at the Harvest Picnic. He was paid plaintiff breached the contract when it refused to pay the balance owed following Reid’s performance. 23... The plaintiff claims damages as a result of an alleged breach of the radius clause in the Contract entered into between Reid and the plaintiff as justification for refusing to honour the terms of the Contract. 24. Reid pleads thatthe radius clause contained in the Contract islOvely broad and. ‘Sstristive and is therefore void and of no effect and is severable from the Contract. 25. In the alternative, Reid pleads that any breach of the radius clause, which is denied, did not result in any damages to the plaintiff and the plaintiff is put to the strict proof thereof. 26. Reid adopts and relies upon the Limitation of Liability clause in its contract with the plaintiff and states thet all damage claims as set out in the Statement of Claim are not recoverable as a result. 27. With respect to the claims against the defendants, J.A. Tours Inc., Bruce Allen Talent and Johnny Mac Entertainment Inc., these defendants deny that they are liable to the plaintiff for the claims as set out in the Statement of Claim as they were not parties to the Contracts entered into between the various artists and the plaintiff. 28. Further, pursuant to the language of the Limitation of Liability clause, the claims as against any of the artists’ agents, representatives, principals, employees, officers, 6directors and affiliates are precluded by the specific wording of the Limitation of Liability clause. 29. All of the defendants plead that the claims as against them are frivolous and ‘vexatious, are excessive and remote and are not recoverable at law. 30. All of the defendants plead that the plaintiff is impecunious and ask that this Honourable Court require that the plaintiff post security for cost of this proceeding. In particular, there are numerous artists who have not been paid for their performances at the Harvest Picnic, including various artists represented by Feldman but also other artists. Further, the principle of the plaintiff, Mr. Gauthier, has sworn an affidavit on October 12, 2016 wherein he states in paragraph 8 that the plaintiff “is unable to afford a lawyer and I am seeking to represent September Seventh individually.” AND BY WAY OF COUNTERCLAIM: 32. The plaintiff by counterclaim, Johnny Reid, claims as follows against the plaintifi/defendant by counterclaim: & Damages in the sur of $110,250.00 (inclusive of HST): b. Pre-judgment and post-judgment interest pursuant to the Courts of Justice Act; c. His costs of this counterclaim on a substantial indemnity basis; and d. Such further and other relief as this Honourable Court deems just. fo33, Reid adopts and relies upon his allegations as set out in the Statement of Defence ‘herein. 34. Reid pleads that he performed pursuant to the terms of the Contract and the defendant by counterclaim failed to pay 50% of the agreed upon Contract price. 35. Reid pleads that the defendant by counterclaim is in breach of its Contract with Reid and is liable for all damages flowing therefrom. 36. | Reid pleads thatthe amounts outstanding to him are 50% ofthe Contract price or » $110,250.00 (nelusive of HST). | 37. Reid proposes that this counterclaim be tried together with the main action. October 19, 2016 RUBY & SHILLER Barristers 11 Prince Arthur Avenue Toronto, ON MSR 1B2 Brian Shiller (LSUC#34407G) Tel: (416)964-9664 Fax: (416) 964-8305 Lawyers for the Defendants/Plaintiff by Counterclaim TO: September Seventh Entertainment Limited Fiddlers Green Postal Outlet Box 81069 Ancaster, ON L9G 4X1 Jean-Paul Gauthier Tel: (905) 719-9612 Email: jpe@hamiltonmusicawards.comSEPTEMBER SEVENTH ENTERTAINMENT LIMITED -and- ‘THE FELDMAN AGENCY ct al. Defendants No. 16-58947 ONTARIO SUPERIOR COURT OF JUSTICE, Proceeding commenced at Hamilton STATEMENT OF DEFENCE AND COUNTERCLAIM RUBY & SHILLER Barri 11 Prince Arthur Avenue Toronto, ON MSR 1B2 Brian Shiller (LSUC#34407G) Telephone: (416) 964-9664 Facsimi (416) 964-8305 Email: bshiller@rubyshiller.com JUSTICE, OF AT HAMILTON Lawyers for the Defendants/Plaintitf by ‘SUPERIOR COU!