Blyth Festival launches counterclaim against Factory Theatre in ongoing legal battle, alleging ‘overt unpreparedness and unwillingness to co-operate’

A bitter offstage dispute between two prominent theatre companies escalated this week as the Blyth Festival launched a counterclaim against Factory Theatre, alleging the Toronto arts organization breached its contract and displayed “overt unpreparedness and unwillingness to co-operate.”
The counterclaim, filed Wednesday with the Ontario Superior Court of Justice and obtained by the Star, comes after Factory sued Blyth last month for more than $115,000 in damages over a cancelled run of a new Canadian play. 
Neither Factory’s lawsuit nor Blyth’s counterclaim have been tested in court. When reached via email, Factory’s managing director Mark Aikman said the company “cannot comment on active litigation.” Rachael King, general manager of Blyth, said it would be “inappropriate for us to comment on matters that are before the court.”
The case primarily concerns a cancelled production of “The Waltz,” a new play by Marie Beath Badian that centres on two Filipino-Canadian youth who meet in rural Saskatchewan in the 1990s.
The production, slated to run from July 12 to 29, 2023, was to be produced by Factory Theatre, which would be responsible for rehearsing and mounting the show. Blyth, a performing arts festival located in the township of North Huron about two-and-a-half hours west of Toronto, planned to present Factory’s production at its own venue. 
The run, however, was pulled from Blyth’s lineup on June 5 last year. Factory alleged in its statement of claim, filed last month, that Blyth breached its presenting agreement by cancelling the show. 
“Blyth did not cite any basis for the termination by the terms of the presenting agreement itself,” Factory claimed in its court filings. “Its stated reason for the termination was that it no longer wished to engage in discussions with Factory Theatre about lighting design, even though its own stated deadlines for preliminary and final lighting design would not expire for another two and three weeks, respectively.”
Blyth, however, alleged in its statement of defence and counterclaim that it was Factory that reneged on the presenting agreement, forcing Blyth to cancel the production. 
The festival claimed that Factory breached its contract by not providing a complete technical rider, an important document that outlines the specific technical requirements needed for presenters like Blyth to host a touring production.
Blyth added that although the technical rider remained incomplete, it still worked with Factory to find a way to bring the production to Blyth.
“Numerous phone calls, e-mails, and Zoom meetings between and among various artistic directors, general and managing directors, and production managers took place, without success,” the festival said.
Though Factory noted in its statement of claim that there was a delay in the delivery of the technical rider, it said that Blyth was aware of it and acknowledged the new timeline. Factory also claimed that Blyth never objected to the timing of the document’s delivery nor highlighted any “deficiencies” with the technical rider that rendered Factory in breach of the presenting agreement. 
In the statement of defence and counterclaim, Blyth specifically cited issues with the production’s set design and lighting. The company alleged that Factory did not initially include set measurements in the technical rider sent in January 2023. When Factory eventually provided those specific details in March, Blyth said the measurements indicated that the set would not fit on its indoor stage.
The festival also claimed that Factory’s proposed schedule for installing the set “far exceeded the typical practice for touring shows” and was “untenable” because it required Blyth to shut down for one and a half weeks. 
Later, Blyth said it offered to modify the existing set or build a new one that could be more easily assembled. Despite what Blyth described as receiving “conflicting information” from Factory’s administrators, both parties ultimately agreed in early May to use a scaled-down version of the set that would be constructed by the festival, according to Blyth’s court filings.
Despite agreement between the two companies regarding the set, Blyth alleged that the technical rider for the show’s lighting elements remained incomplete and that it was still seeking approval from Factory for certain design requirements.
On May 31, Factory said their lighting designer may not be able to travel to Blyth as part of the process, according to Blyth’s court filings. The festival further alleged that on or around June 3, Factory sent them a list of 41 additional lighting requirements. 
Then, on June 5, Blyth said it told Factory it was cancelling the production due to their inability to agree on lighting designs and the lack of a complete technical rider. 
According to Blyth’s counterclaim, the festival is claiming $150,000 in damages for breach of contract. Blyth said it’s also entitled to a refund of the $15,000 deposit that it claims to have sent to Factory as part of the presenting agreement. Additionally, Blyth is claiming nearly $95,000 in damages stemming from lost revenue, employment costs and marketing costs. 
The cancellation of “The Waltz” last summer came after what appeared to be an already tenuous relationship between Factory and Blyth. 
Badian’s play, commissioned by Blyth in 2018, was supposed to premiere at the festival in 2022 but was cancelled due to a COVID-19 outbreak within the company. Factory said in its statement of claim that, unlike the planned 2023 production, the 2022 run was planned to be a joint production between Factory and Blyth, with both theatres splitting the pre-production costs.
Factory claimed in its court documents that Blyth didn’t uphold its end of the agreement, alleging that though Blyth had promised to build the sets, costumes and props for the production — and would later invoice Factory for 50 per cent of the cost — the festival failed to produce those elements, forcing Factory to build them “entirely at its own cost” for $34,000. Factory did not claim damages from Blyth for these specific items. 
Blyth, however, has maintained that the 2022 run was not a joint production, denying Factory’s claim that the two companies agreed to share production costs for the play. The festival noted in its statement of defence that according to the Canadian Theatre Agreement, companies intending to mount a joint production must notify the Canadian Actors’ Equity Association (CAEA) and the Professional Association of Canadian Theatres (PACT). Blyth said that such a notice was never filed. 
A spokesperson from PACT said in an email to the Star that it could not release information relating to member operations or productions, while a representative for CAEA said it cannot comment when there is a legal dispute. According an archived screenshot of Blyth’s webpage, the planned 2022 iteration of “The Waltz” was marketed as “produced in partnership with Toronto’s Factory Theatre.”