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Former Ballet BC director wins in court

The Globe And Mail
Shannon Rupp

A court has granted Ballet British Columbia's former artistic director the right to add his cancelled contract to the company's list of debts.

In a June 19 decision, Madam Justice Carol Ross of the Supreme Court of British Columbia ruled thatthe bankruptcy trustee, E. Sands and Associates, was wrong to disallow John Alleyne's claim for$142,784.92. The claim was based on his employment contract, which required 12 months notice orpayment in lieu of notice. The trustee argued that when Ballet B.C. terminated and rehired Mr. Alleyne,his damages were mitigated.

But Judge Ross ruled that the trustee erred by treating Mr. Alleyne's claim as a bid for damagesfollowing a wrongful dismissal, rather than an attempt to recover a debt.

“The amount claimed by Mr. Alleyne is a contractual entitlement owing as a debt upon termination.Accordingly, mitigation … has no application,” she said in the decision.

Originally, Mr. Alleyne was contracted until June 30, 2011, at an annual salary of $143,325. He wasterminated on Nov. 24, 2008, when the company laid off 38 dancers and staff. Ballet B.C. placed itselfin receivership because of about $600,000 in debt on its $3.2-million budget. The companyrestructured and, in late December, the trustee filed a proposal offering creditors, including Mr.Alleyne, 22 cents on the dollar. The proposal was approved.

Mr. Alleyne, who had been artistic director since June of 1992, was rehired by the restructuredcompany from Jan. 12 to June 30, 2009, at a lower salary of $64,500. On April 16, the trustee notifiedMr. Alleyne that his claim based on his previous contract would be disallowed. On April 30, thecompany notified Mr. Alleyne that his new six-month contract was not being renewed. Mr. Alleyne'sappeal of the trustee's decision was heard on May 13.

Judge Ross also noted that the trustee could not rely on the contract's force majeure clause, because itwas not mentioned in the termination letter. The clause allowed either party to terminate theemployment contract due to events beyond their control, including things such as insolvency andsevere economic recession.

Mr. Alleyne's lawyer, Naz Mitha, said his client's position is that he is entitled to compensation for legalcosts, and he is in negotiations with the trustee.Graeme Barrit, chair of Ballet B.C.'s board of directors, said he worries the dispute makes it appear thecompany was in a fight with its artistic director, which is not the case “I've had some people come to me and say, ‘Well, you lost to John.' But we didn't lose to John. I'mhappy for John that he was able to correct what was the trustee's decision,” Mr. Barrit said.Ballet B.C. is operating with a skeleton staff of five, including interim artistic director Emily Molnar, 36,a former dancer with the company. Fourteen of the previously laid-off dancers will return to work onAug. 24.Since reorganizing, Ballet B.C.'s budget is “in flux,” according to Andrew Wilhelm-Boyles, interimexecutive director.“A final budget has yet to be achieved,” he said, adding that the company is still developing projects forthe coming season.

17 Jul 2009