[From the Ontario District's newsletter, The Trillium, issue 59-01, January - March, 2005 , Waldo Redekop, editor.]

Watch the small print

By Garth Manning, Etobicoke-Mississauga Chapter

The Etobicoke-Mississauga Chapter gives, on average, two outside performances a month throughout the year, invariably including carols and other Christmas type songs within the two municipalities. Harmonize For Speech is the ultimate beneficiary.

Some locations, particularly malls,  require signed Occupancy Agreements, and we look at them closely. Frequently they contain hidden time bombs in the small print concealed well back in a lengthy (and tedious) document.

Translated from legal into everyday language, a typical clause requires the chorus to assume all responsibility for any accidents occurring as a result of the chorus’ presence in the mall. We can have no objection to that as far as any negligent act or omission by the chorus is concerned. That remote possibility is covered by insurance.

The problem is that the typical clause is so widely and deliberately constructed that the chorus could be held liable for any problem which arose from the mall’s own negligence and not from anything that the chorus did or failed to do.

To give a hypothetical example. If a mall cleaner negligently left a damp cleaning rag in the vicinity of the chorus and a member of the audience slipped on it and broke her skull, the chorus could, under the clause wording, be held responsible for all her damages (which could be significant) even although the fault was that of a mall employee and had nothing at all to do with the chorus.

It could, and would be argued by the mall, that the accident would not otherwise have occurred except for the chorus’ “presence in the mall.” There would be a nightmare of disputes between the injured person, the mall, the chorus and everybody’s insurers and lawyers. In this increasingly litigious age, this is not a scenario into which any sensible chorus or its individual members should enter.

We always amend such clauses by wording that makes it clear that the chorus will not undertake any responsibility for any acts or omissions within the control of the mall, but only for our own for which we are covered by insurance. Usually our amendment is accepted without argument.

However, we recently ran into a mall where we had performed in previous years and which had formerly accepted our amended wording. On this occasion, they refused to do so as (they said) “Our lawyers now insist that no changes can be accepted in our standard agreement.”

As discussion got us nowhere, we withdrew as we were not prepared to accept either their adamant (and legally unreasonable) attitude or the risks involved, however remote the possibility of something like the example given above actually happening.

We were told by the mall that a prominent charitable organization and hundreds of public groups had appeared at the mall that year and none had taken objection to the wording as we did. We thought, and said, that this was not a convincing argument but rather a reflection of a “Show me where to sign” mentality without careful reading, or a willingness to accept risks that we were not willing to accept.

One might think that the risk of such an occurrence is slight and thus that it’s not worth making a fuss over the wording of such a clause. True, but if a mall thinks there’s a big enough risk to insist on the wording in question and not to permit any changes, who are we to disagree? After all, it’s the mall which is in the best position to analyze the risks and take steps to minimize or eliminate them.

Our bottom line, which we now share with other chapters, is read these types of agreements carefully. Make sure they do not impose any unfair responsibility or liability on you.

If you have a lawyer or an insurance type in the chapter, have them read the proposed agreement and advise you. If you or they don’t like it, don’t sign and look elsewhere to entertain the public with what we love and do best.      k