CTA 38:04 - A Cautionary Tale For Canadian Actors

Last June I auditioned for a play.

I liked the script and I really liked the part, so I hopped on a bus for the hour-long commute. I’d not yet worked at this theatre nor had I met this director. A new frontier.

I related to this character. I loved the arc the writers had given him. Here was a bumbling fellow riddled with anxiety who, in a few short scenes, gets to work through his fears and ultimately triumph over them. Right up my alley!

The audition went well. The director liked me. My agent got the call offering me the role. Lovely! I’d go into rehearsals in February 2020 (almost seven months away) and the play would run through March.

Now, around this time -- summer 2019 -- there was also a TV series looming in my future. We weren’t yet sure of those dates -- they kept shifting! -- so my agent and I waited for as long as we could before signing the theatre contract. We had to be careful. We wanted to be sure about my TV job first, to avoid any conflicts.

After a few days we got a call from the theatre: “We need a signature from Mr. Petersen or we’re going to have to move on.”

So, nearly seven months before the start of rehearsals we were being pressured into signing a contract. In retrospect I wish we’d taken that as our cue to exit the offer. But we didn’t. Instead, we decided to commit. We signed the contract and sent it in.

We were in perfectly good shape for a while. Even with an ever-shifting TV schedule it looked like my February theatre commitment would still be okay. We’d probably shoot the TV series in the fall and be wrapped well before February. No problem.

Until, suddenly, a problem. When shooting dates were finally locked, my series would now shoot in February.

Gulp!

The very instant we recognized the conflict we got to work ironing things out, which meant calling the theatre with our regrets. In short: I was requesting to be released from a signed contract.

It was early October now. We were giving the theatre three months notice.

I’ve only ever heard of such a thing happening twice before. I’m sure it happens all the time, such is our lot as freelancers, but the two specific instances I know of personally are one involving a colleague of mine recently, and one involving me myself about twelve years ago. In both cases the scenario was identical: committed to a theatre contract, oops! along comes a TV series, gotta pull out of the theatre contract, sorry about that. On both of those occasions the response from the affected theatre director was the same: “What an awesome opportunity for you! It sucks for us, but it’s great for you! Of course we understand!” Simple, clean, friendly. I thought that was normal, we being Canadians and everything. We’re all in the same boat, doing our best, and we support each other.

Unfortunately, that friendly response was not the one that greeted me this time. Instead, this director decided to look up a clause in the Canadian Theatre Agreement and cite Breach of Contract.

I’d never even heard about this clause until now. People usually choose the gracious “farewell and a handshake” instead.

Not this time.

Clause 38:04 says the performer must pay the theatre two weeks salary. In the case of this particular A House two weeks salary is no small potatoes. I now owed them two thousand four hundred dollars.

Think of it. I audition for a play and now must pay an exit toll, because, during the nearly seven months from auditioning to actually starting work, something popped up. A life event.

My agent took matters into her own hands at first. She called the theatre and tried to reason with them. “We’re giving you three months notice, we have other actors right here at the agency who could audition for you, Mr. Petersen is integral to this TV project,” and so on. The director was having none of it. In my agent’s own words: “This person is not backing down!”

So I resigned myself to paying. If these are the rules, then so be it. I wrote the cheque and mailed it.

No sooner did the envelope drop into the mailbox then the thought suddenly occurred to me: Equity! I should talk to someone at Equity! This is the very reason we created you in the first place - you exist to protect actors!!

I called. I explained the situation. My Equity rep agreed that a fine of two thousand four hundred dollars was excessive. “It’s not like you’re leaving them high and dry the night before rehearsal or something. This is totally unfair.”

First, he advised me to call my bank and put a stop-payment on that cheque. “There’s no way you’re paying that!” Then he called the theatre to try to reason with them. He came back and said the same thing my agent had said: “This person is not backing down!”

That’s when my rep did a little digging. He checked the files - the theatre, the play, and the actors’ contracts which of course had long ago been sent in. Everyone’s signed contracts were indeed on file, as required. “But,” said my rep, “I don’t see yours in here, Mike. For whatever reason, they neglected to send us your contract. Are you sure it was signed and sent?”

“Absolutely! Signed and sent ages ago! My agent can verify that.”

“Well, the theatre had five business days to file your contract with us, but they’ve missed that deadline - by a long shot. Therefore, Equity will not recognize your contract, and as far as we’re concerned your name is not attached to this production and it never has been. This director doesn’t have a leg to stand on. They cannot cite breach of contract. Furthermore, they seem to have overlooked another clause in the CTA, a few pages before 38:04. It’s 35:05 article C.”

I didn’t know about this little detail in the CTA, either …

(C)  Deadlines for Filing
The Artist shall file with the Theatre the appropriate copies of the contract within forty-eight (48) hours of his/her signing same. The Theatre shall file with Equity and PACT the appropriate copies as above of the fully executed contract within five (5) business days (Saturday, Sunday, and holidays excluded) of receipt of same, and, in any event, no later than the date of the beginning of the engagement. Should the Theatre not do so, and the Artist has filed his/her contract with the Theatre as required above, then the Artist may, at any time, terminate his/her contract without notice, and the Theatre shall pay to the Artist such amount as he/she may be entitled to under the CTA for a breach thereof (see Article 11:00).

I rely on my agent to keep meticulous records. She had everything - the date the offer came in, the date we signed the contract, the date we sent it, and the date we called with regrets. We did everything perfectly and properly. It’s the theatre company itself that dropped the ball.

In other words, I’m not in breach of contract. The theatre is! And if we’re reading this clause correctly, the theatre in fact owes me two thousand four hundred dollars!!

My agent and I agreed that we would not use Clause 35:05 (C) to demand that the theatre pay us. It would be hypocritical in the extreme for us to lean on a clause in the CTA, considering I’d taken such umbrage at this director’s efforts to do just that.

So, there it rests. I may have burned a bridge with this director and their theatre, but at least I get to keep my money.

Still, I’m troubled by a few lingering thoughts. I’ve become suspicious. I wonder if this director thinks they’ve stumbled onto a system where they can bilk actors? I wonder if that’s why they demanded a signature so far in advance? Seven months is a long time, from signing to starting. Any number of mitigating life events can pop up during that time. The fact that my life event was a television series is entirely beside the point. What if I’d had a car accident? A cancer diagnosis? A death in my family? Would this director have still used this clause and demanded payment?

If the answer to that hypothetical question is “yes, we still would” then this person reveals themselves to be mean, petty, and vindictive.

If the answer is “no, of course we wouldn’t” then I’m left with an even more troubling thought: they must have the opinion that since I work in television, obviously I can afford a measly couple of thousand bucks. They were trying to extort me, like a resource to be tapped.

So be careful folks. We can’t rest assured that good old Canadian kindness thrives in all corners of all work places. There are mean, mercenary minds out there, even in the arts.

I would treat with suspicion any company that pressures an artist for a signature so many months before the beginning of a job, but then allows no wiggle room during those months for any number of life events that might prevent that artist from fulfilling their contract. Such companies might be trying to secure another income stream for themselves by deliberately laying a trap and pointing to a clause in the rule book. That’s certainly what this felt like: a trap designed to squeeze me of my money. (They might still be in the process of perfecting this system; their failure to file my contract with Equity is a mistake they’ll not make again!)

I’ll be having my own conversation with Equity regarding my opinion of Clause 38:04. No actor wants to renege on a contract. We take our responsibilities very seriously. We are not cavalier with our commitments. I believe it’s always going to be an exceptional circumstance that forces an actor to make the difficult decision to leave a show, and I do NOT believe we should be penalized financially for making that decision.