Glasco v. National Ballet of Canada

When the National Ballet of Canada informed Kimberly Glasco that her contract as a principle dancer would not be renewed after its expiry on June 30, 1999, she filed a grievance alleging that she had been wrongfully terminated, a complaint with the Ontario Labour Relations Board alleging that her termination was a reprisal for speaking out on behalf of dancers with the Ballet, and an action in the Superior Court of Justice alleging breach of her employment contract and defamation. The parties eventually agreed to consolidate all of Ms Glasco's claims and submit them to private binding arbitration under the Arbitration Act, 1991. Ms Glasco then brought an application for interim relief, seeking reinstatement pending the outcome of the arbitration.

The Ballet maintained that the 39-year old Ms Glasco was terminated because she no longer had the ability to perform at the level of a principle dancer. However, no person in authority at the Ballet had ever criticised or questioned Ms Glasco's abilities before, including Karen Kain, who swore an affidavit on behalf of the Ballet stating that she had observed a decline in Ms Glasco's dancing in recent years. During the same period, however, Ms Kain had sent a number of cards to Ms Glasco in which she praised Ms Glasco's performances in different ballets. Moreover, reviews of Ms Glasco's performances had been uniformly positive.

Ms Glasco believed she was terminated because, in her capacity as the dancers' representative, she expressed concern to the board of directors that the Ballet had proposed to cut dancers' paid working weeks from 52 weeks to 30 weeks per year while, at the same time, was planning to spend millions of dollars staging various ballets and tours. The Ballet and its new artistic director, James Kudelka, apparently chose to interpret Ms Glasco's concern for the plight of dancers as a lack of support for the artistic director and for his plans to stage a new production of Swan Lake, even though Ms Glasco attempted to assure them that this was not the case. Once Ms Glasco's termination became public, the Ballet made a number of public statements in which it denied that Ms Glasco had ever raised any financial concerns with the board of directors, even though the the board's minutes clearly showed that she did. Mr. Kudelka was also quoted in the press making negative statements about Ms Glasco.

In an interim decision dated March 16, 2000, arbitrator Christopher Albertyn ordered the Ballet to reinstate Ms Glasco as a principle dancer pending the outcome of the arbitration. The award required the Ballet to assign performances to Ms Glasco in the usual manner pending the outcome of the main action. The arbitrator found that Ms Glasco had met the required tests for interim relief, namely: that she had raised a serious question to be tried, that she would suffer irreparable harm if the order was not granted and that the balance of convenience favoured granting the order. On March 29, 2000, the Ballet brought a motion in the Superior Court of Justice to stay the interim award pending an appeal of the award in the courts.

On March 30th, Mr. Justice Dennis O'Leary dismissed the Ballet's motion. He rejected the Ballet's argument that it would suffer irreparable harm if a stay of the interim award was not granted. The Ballet had argued that Ms Glasco's reinstatement would imply that it had treated Ms Glasco improperly, which might undermine fundraising. Noting that this concern was mere speculation and that the return of Ms Glasco might just as easily increase donations, Justice O'Leary held that, in any event, the Ballet was the author of its own misfortune:

[T]he Artistic Director and other spokespersons for the Ballet have been imprudent in pronouncing that Ms. Glasco does not fit with the artistic director's vision for the Ballet, that she is deteriorating as a dancer, and hard to train. If harm flows to the Ballet from such statements it will not be the reinstatement that will have caused the harm but the unwise decision to carry on a public campaign against her.

Justice O'Leary further held that it would be Ms Glasco who would suffer irreparable harm if the stay was granted:

Glasco is a mature artist in the final stages of her career, performing at the highest level. Any further hiatus in her dancing is likely to prevent her from being able to resume her career. Such a loss to her is impossible to measure and cannot be adequately compensated for by monetary damages.

Justice O'Leary also held that the balance of convenience favoured Ms Glasco, holding that the Ballet's concern that Mr. Kudelka might quit if Ms Glasco returned "pales when compared to the ruin of Ms. Glasco's career if she is not reinstated."

Therefore, the Court refused to stay the arbitrator's interim award. However, when Mr. Kudelka refused to cast her in any roles, Ms Glasco asked the arbitrator to issue directions regarding the implementation of his interim award.

In a decision issued May 3, 2000, the arbitrator held that Mr. Kudelka was not required to cast Ms Glasco in any performances for the Spring season, since those casting decisions had been made in the usual manner before the interim award was released. However, the arbitrator was not impressed with Mr. Kudelka's testimony that, regardless of any arbitration or court order, he would not cast Ms Glasco in any future role, noting that, if Mr. Kudelka continued to place himself above the law, he would risk legal sanction.

The arbitrator also thought it important to reiterate what the case is, and is not, about:

[This case] is not about whether the Artistic Director is entitled to exercise his artistic discretion. There is no doubt that he can, and should. No party to the main action disputes that. In that vein, it is entirely inappropriate for a third party, such as an arbitrator like myself, to interfere in the bona fide exercise of the Artistic Director's artistic discretion.

[But], that is not what the main case is about. It is about the alleged exercise of a non-artistic discretion by the Artistic Director when he took the decision not to renew Ms. Glasco's employment contract ... Ms. Glasco and Equity contend that the Artistic Director took account of non-artistic considerations -- unlawful considerations in violation of Ontario statutes -- when he made his decision.

On May 9, 2000, the Ballet brought both an application to have the interim award set aside and an appeal of the interim award before the Superior Court of Justice (the application and appeal were brought under different sections of the Arbitration Act, 1991). The Ballet argued that the arbitrator erred in refusing to allow the Ballet to cross-examine Ms Glasco with respect to the issue of mitigation of damages, especially with respect to other employment opportunities available to her; in ordering reinstatement in the absence of mutual confidence between the parties; and in ordering reinstatement when a court would not have done so. The Ballet further argued that the order of reinstatement was contrary to Charter values in that it violated the freedom of expression of the artistic director, James Kudelka.

On June 6, 2000, the Superior Court of Justice dismissed the Ballet's appeal and application. The Court rejected the Ballet's argument that it had been denied a fair hearing because it had been unable to cross-examine Ms Glasco on her affidavits. The Court agreed with the arbitrator that it was not necessary to make findings of credibility in order to determine the question of interim reinstatement, and therefore cross-examination was not necessary. The Court noted the arbitrator's concern about the significant delay which would result from the wide-ranging cross-examination proposed by the Ballet, and observed that the Ballet could have filed its own affidavit material to contradict Ms Glasco's statements, but chose not to do so. Moreover, the Ballet's own affidavit material supported Ms Glasco's assertions regarding other employment opportunities:

[T]he affidavits of Mr. Kudelka and Ms. Kain provide evidence from which the arbitrator could infer that Ms. Glasco would have significant difficulty finding comparable work elsewhere, at least in the short term, given their comments on her declining abilities, her difficulty in leaning roles, and the reluctance of other choreographers to use her in recent performances. As well, the arbitrator commented that Ms. Wilder and Mr. Kudelka had taken the public position that Ms. Glasco never raised financial concerns ot the Swan Lake production before the Board of Directors, and had never publically acknowledged that they were in error. There has since been an admission of error by their counsel in the hearing before Mr. Justice O'Leary. Again, the arbitrator could draw an inference from these facts about the likely difficulty of Ms. Glasco finding alternative employment as a principal dancer.

Finally, the Court held that, having agreed to a process of arbitration, the Ballet could not now complain that the arbitration procedure it accepted differs from the procedure which may have been available in the courts.

On the issue of mutual confidence, the Court noted that, while it is unusual for a court to order specific performance of an employment contract, there is no absolute rule against it, and concluded that the arbitrator applied the correct principles of law to the facts on this issue.

The Court also rejected the Ballet's argument that the arbitrator erred in ordering reinstatement when a court would not have done so, noting that a court might well be willing to grant interim relief pending arbitration, and concluding that, in any event, the arbitrator had no obligation to act in the same manner as a court:

[T]he Ballet errs in assuming that the arbitrator must act in the same way as a court. While he has been given the powers to a court to deal with aspects of the parties' dispute, he is not a court. Rather, he acts as an arbitrator under the Arbitration Act, 1991, with all the powers available to him under that Act. It is true that he must act according to law, and he did so, applying the correct legal principles respecting interlocutory injunctions. The grant of interlocutory injunctive relief is discretionary. While a judge might exercise his or her discretion in one manner, that does not prevent the arbitrator from exercising his discretion in another manner, as Arbitrator Albertyn did here, after considering the governing principles.

Once again, the Court noted that the Ballet had agreed to resolve the dispute under the Arbitration Act, rather than under the Labour Relations Act, 1995 which prohibits interim reinstatement, and now sought to challenge the jurisdiction of the arbitrator, even though it had expressly agreed not to do so in the arbitration agreement.

Finally, the Ballet's argument that the reinstatement of Ms Glasco somehow violated Mr. Kudelka's right to freedom of expression under the Charter was dismissed in short order. While the courts have held that "Charter values" may influence the development of the common law (notwithstanding that the Charter does not apply to disputes between private parties), the Ballet was unable to articulate the rule of common law it was seeking to influence. Moreover, the Ballet did not address the concept of reasonable limitations, which is inherent in any Charter analysis.

In the result, the Court dismissed the application and appeal, holding that the arbitrator had made no error of law and had not breached any rule of procedural fairness.

Postscript

On July 20, 2000, Ms Glasco and the National Ballet settled the dispute. The terms of the settlement are to remain confidential, but Ms Glasco was to receive a substantial monetary settlement. The parties agreed to make public the following statement:

AGREED PUBLIC STATEMENT

1. The National Ballet, Kimberly Glasco and Canadian Actors' Equity Association have agreed to a settlement of all outstanding legal proceedings between them. Some of the details of the settlement are to remain confidential, but the parties have agreed to make this public statement.

2. Ms. Glasco is an outstanding ballerina in both classical and contemporary ballets who has many years left in her career as a principal dancer. She is a widely acclaimed artist of unique abilities who has performed a broad range of ballets and will continue to do so in the future. Neither the National Ballet's original decision not to renew Ms. Glasco's contract nor any subsequent public statements regarding the matter by the Ballet's representatives were intended to reflect in any way on Ms. Glasco's fine qualities as a dancer. The National Ballet regrets any adverse effects caused to Ms. Glasco.

3. Ms. Glasco has dedicated her life to the National Ballet of Canada and believes in its importance as a Canadian cultural institution.

4. Ms. Glasco has had no artistic differences with James Kudelka as Artistic Director of the National Ballet. She has always acknowledged Mr. Kudelka as a leading choreographer in contemporary ballet. She has never questioned Mr. Kudelka's authority in artistic matters.

5. Under the terms of the parties' agreement, Ms. Glasco will receive a substantial settlement, which by agreement must remain confidential. Ms. Glasco's relationship with the Ballet ends effective immediately.

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Ms Glasco was represented by Jeffrey Sack, Jim McDonald, Steven Barrett and Doug LeFaive in the various proceedings.

Click here to read Justice O'Leary's decision

Click here to read Justice Swinton's decision

Click here to read the arbitration award