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'Jazzman' not dropping lawsuit against RMOW

Festival organizer plans to re-file with Supreme Court in New Year



Arnold Schwisberg can't help but think of what might have been had he been able to realize his long-term vision for an annual Jazz on the Mountain festival at Whistler (JOMAW).

It would have been coming up on his fourth year now, said Schwisberg wistfully as he sits overlooking Whistler Olympic Plaza, the main venue for his first, and only, jazz festival in 2011. Instead, he is mired in a legal battle with the Resort Municipality of Whistler (RMOW), which is set to ramp up again in the New Year.

"Every time I walk through the village, I think of it," he said, while here on vacation in December. "Every time I pass by the Whistler Olympic Plaza, I think of it. Every time I talk to so many of the friends I have here in Whistler who own businesses, or the merchants and restaurateurs, I think of it. I can never get away from it. But the vision got realized somewhere else because of an impasse between me and the staff, caused by the fact they do not want to be held accountable for their mistakes, by me or anybody."

Schwisberg initiated legal action against the RMOW in May 2012, claiming Whistler damaged the success of his inaugural festival after advertising it as part of the municipality's own Whistler Presents free-concert series. This allegedly impacted ticket sales. The lawsuit also alleges that the RMOW is in breach of a duty of care for compromising the festival's financial viability, and refusing to offer financial and conceptual support.

Schwisberg is seeking more than $700,000 in damages.

In August, however, a BC Supreme Court judge stayed the proceedings, taking issue with the content of Schwisberg's Notice of Civil Claim and giving him time to re-file his suit.

For the past five months he's been hoping for a meeting between the two sides to resolve the issue out of court, but to no avail.

"Again to be really frank, I always was hoping, and it's a foolish hope, I think perhaps it's the hope of a boyfriend whose girlfriend broke up with him and he's not facing reality, but I really always hoped that I'd get a call or an email returned from somebody, council. I never have."

The lawsuit, he added, will continue in the New Year.

When asked for comment on the issue this week, the municipal communications department said it could not address the issue as it is before the courts.

"They were given a right to file revised pleadings but usually that right is limited in time," said Mayor Nancy Wilhelm-Morden, who confirmed there has been no dialogue between the parties.

Schwisberg said his next move is on a "self-established timetable."

"I was always very reluctant to proceed with this... I love this place. Sue the council? What a predicament I've been put into. And I lost an awful lot of money. So, I did hesitate," said Schwisberg.

His decision, however, was spurred on after his request for $150,000 in "augmentation" funding from the municipality's Festivals, Events & Animation (FE&A) program was denied for the jazz festival's second year, and the municipality released a program of more free concerts on, and around, the Labour Day weekend proposed for JOMAW. At that point, he pulled the plug on a repeat festival and began the legal proceedings against Whistler.

Meanwhile, Schwisberg took his concept elsewhere and this summer he produced Jazz on the Mountain At Blue in Collingwood, Ontario. He has entered into a multi-year letter of intent there and it's similar to Whistler's — a multi-day jazz program with free and ticketed events.

On an "actual" basis, the numbers are the same — about 16,000 attributed to both festivals, he said. On scaled basis, however, Blue did four times the number of Whistler because Whistler is so much bigger.

He said they accomplished what they wanted to do — generate buzz and set the stage for bigger and better things to do.

"It's the ultimate ambivalence (in Whistler)... because I still love this place, you know?" said Schwisberg. "And it would have been great to have realized this event as it was conceived."