Anne of Green Gables goes to court
by Robert Fulford

(The National Post, 8 November 2003)

Somehow, Anne Shirley must have fallen down a rabbit hole. She's left her original home in Anne of Green Gables, that masterpiece of juvenile realism, and landed among the eccentrics and grotesques who populate Alice in Wonderland. This week she found herself wandering around in chapter six, the part where Humpty Dumpty says, "When I use a word, it means just what I choose it to mean -- neither more nor less."

In Ontario Superior Court, where they are fighting over payment for TV rights to Anne's story, word meanings are crucial, and the spirit of Humpty Dumpty hovers over the courtroom. To visit this trial is to learn anew the infinite slipperiness of "bottom line" and "equity" and, above all, "recoup."

Usually a humble sort of verb, "recoup" has emerged as the star of the trial. The multi-volume Oxford English Dictionary defines it in a few crisp paragraphs, but the Ontario Superior Court has now heard thousands of words about what it means, so far to no avail. Much of one day was spent trying to find a definition, and the next morning it was obvious that the two sides still didn't agree on the meaning.

This is a libel action, and ostensibly about the defamation of Sullivan Entertainment Group Inc. But most of the testimony deals with money, specifically what Kevin Sullivan's company does or does not owe to the heirs of Lucy Maud Montgomery, Anne's creator.

Lucy's heirs, a daughter-in-law and grandchildren, made an agreement in 1984 that allowed Sullivan to produce his admirable Anne of Green Gables and, later, many related TV films. They believe they are owed far more money than they have received. But they don't know how much, because, they say, Sullivan won't reveal financial details.

During the 1990s the heirs and their lawyer, Marian Hebb, were expecting a percentage of profits; after all, the two Anne TV films had been the most popular ever made in Canada. But word came back from Sullivan's company that there were no profits. Was this Hollywood accounting, a byzantine method of hiding profits, or was it legitimate? The heirs had no way to tell.

In 1999, when Sullivan was about to sell shares in his company, the heirs held a press conference disclosing their unsatisfied claims. By Sullivan's account, this event destroyed his plan to go public. He brought a libel action against the heirs, Hebb, and the PR man who organized the press conference. Sullivan Entertainment Group claimed $54.75-million in damages, plus a mountain of court costs and interest.

Since then, the case has been chugging slowly through the legal system, eating money at every turn. In court this week it required the services of 14 people: a judge, five court personnel, two law clerks, and six lawyers, three of them in the $350-an-hour class.

As it stands now, the suit seems as fictional as anything Montgomery ever concocted. A prosperous film producer is suing five people of modest means for a fortune they do not possess. He has thrown them off balance, but otherwise the best he can hope for (should the judge totally accept his argument) is a judgement he won't be able to collect. The worst he can fear, on the other hand, is that the judge will find against him and order him to pay the costs of the trial, which will amount to far more money than he would ever have had to pay the heirs.

By now Sullivan must be considering the possibility that he's fallen into his own trap. Has he, like Oscar Wilde, initiated one of those libel suits that turn around and bite the plaintiff, making a once-eager litigant wish he had never heard the word "libel"? On the stand he seems remarkably unhappy, as if someone were suing him. Giving testimony for more than six days, he made a strange witness. Even when questioned sympathetically by his own counsel he answered in tiny, grudging phrases, as if determined to surrender financial information only under extreme duress.

Cross-examined, he grew even more taciturn. It seemed to be an agony for him to endure questioning from someone who clearly didn't understand his excellent reasons for doing whatever it was he did. Julian Porter, acting for Hebb, suggested that for years Sullivan had relentlessly stonewalled the heirs on financial issues. Porter asked, "You just didn't want to pay them another penny, did you?" Sullivan answered with consummate blandness: "I don't remember that being the issue." Memory failure played a large part in his testimony: "I don't recall... I'm not sure exactly... I don't recall, to be honest... "I can't remember his exact words. "

Sullivan's favourite phrase was "to be honest."

Porter several times asked when the costs of the original film had been recouped, since that's when profit might flow to the heirs. "Your position was that Anne had not recouped," Porter said at one point, but Sullivan couldn't remember whether that was in fact the position. A minute later he was saying, "I don't know what the definition of recouped is." By that time, neither did anyone else.

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