Douglas D. Langley

This appeal concerned the interpretation of a forum selection clause in a Share Purchase Agreement (SPA).

The appellants, Savanta Inc. and GEI Consultants, Inc., sought to stay portions of an action and counterclaim, arguing that the clause conferred exclusive jurisdiction on Massachusetts courts.

The clause stated disputes "must be brought in any state or federal court... in Massachusetts, and each Party irrevocably submits and agrees to attorn to the non-exclusive jurisdiction of such court." The motion judge found the clause ambiguous and thus non-exclusive, allowing Ontario to retain jurisdiction.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding error in her interpretation that the term "non-exclusive" applied to the jurisdiction generally, not merely between state and federal courts within Massachusetts.

The plaintiff, Savanta Inc., and co-defendant GEI Consultants, Inc. (GEI), brought a motion to stay portions of the defendants' counterclaim and for Savanta to discontinue parts of its statement of claim.

The motion was based on a forum selection clause in a Share Purchase Agreement (SPA) that Savanta argued required disputes to be adjudicated in Massachusetts.

The defendants, Thomas and Teresa Hilditch, contended that Savanta had attorned to the jurisdiction of the Ontario Superior Court.

The court found the SPA's jurisdiction clause to be "non-exclusive" meaning it did not preclude Ontario from adjudicating the disputes.

Applying the Muscutt factors for forum non conveniens, the court determined that Ontario was the most convenient forum for all issues, emphasizing the risk of multiplicity of proceedings and conflicting decisions if the matters were split between Ontario and Massachusetts.

The motion to stay or discontinue was denied, and the plaintiff and GEI were ordered to pay costs to the defendants.

The appellant appealed a trial judgment in a contractual dispute involving milestone-based payments for technical work.

The trial judge found that the appellant had repudiated the contract and awarded damages to the respondents.

The appellant raised three arguments on appeal: (1) that the trial judge failed to consider mutual repudiation; (2) that deficiencies in the respondent's work should have been considered as a set-off; and (3) that the trial judge was inconsistent in his treatment of a specific milestone payment.

The Court of Appeal dismissed all three arguments, finding that the trial judge had properly addressed the respondent's conduct, had correctly applied the milestone-based payment structure, and had made distinguishable findings regarding the specific milestone in question.

The appellants appealed a summary judgment finding them jointly and severally liable for commissions owing to the respondent under two financing engagement agreements.

The Court of Appeal upheld the motion judge's interpretation that the appellants' longtime lender, RBC, was a 'lender disclosed' by the respondent, entitling the respondent to commissions.

However, the Court allowed the appeal in part, finding the motion judge erred by double-counting $20,000 in commissions, improperly imposing joint and several liability across separate agreements, and awarding costs higher than claimed.

The respondent's cross-appeal was also allowed in part to set aside the dismissal of the action against the personal defendants, as they were not part of the summary judgment motion.

The appellants appealed a summary judgment decision that found the respondents successfully exercised a Put-Right option in an asset purchase agreement.

The option allowed the respondents to compel the appellants to purchase their shares for $3.00 a share.

The Court of Appeal dismissed the appeal, finding no palpable and overriding error in the motion judge's conclusions that the option was part of a bilateral contract, that the respondents substantially complied with notice provisions, and that the failure to provide section 116 Income Tax Act certificates was not a precondition to exercising the option.

The remedy of $600,000 and specific performance was upheld.

A court-appointed receiver sought an order compelling several service providers to remit commissions allegedly owed under license agreements following the receivership of a home services business formerly operating under a national retailer’s brand.

The respondents argued the receiver had repudiated the license agreements by shutting down the system that generated service leads and announcing it would not continue operations, thereby relieving them of contractual obligations.

The court held that the receiver’s conduct constituted repudiation of the agreements, which the respondents accepted.

As a result, the receiver could not enforce contractual payment obligations.

Claims based on unjust enrichment and quantum meruit were also rejected, particularly given the inequitable circumstances created by the receiver’s actions and the continued enforcement of stay provisions against the respondents.

The plaintiffs brought a motion for summary judgment against the defendants Sablo and Shamrock for failing to purchase their common shares in Crown William pursuant to a 'Put-Right' option in an Asset Purchase Agreement.

The defendants argued the plaintiffs did not properly exercise the option and that the action was premature.

The court found that the plaintiffs substantially complied with the notice requirements, that a prior release by one plaintiff did not bar her claim, and that the provision for a section 116 Income Tax Act certificate was not a condition precedent.

Summary judgment was granted in favour of the plaintiffs for $600,000.

The plaintiff, having succeeded on a summary judgment motion for unpaid consulting fees, sought costs on a substantial indemnity basis due to the defendants' alleged reprehensible conduct and a time-limited offer to settle.

The court found that the defendants' conduct, including evading service and failing to make any settlement offers, was not 'reprehensible' enough to warrant punitive costs.

Furthermore, the plaintiff's time-limited offer did not attract presumptive cost consequences under Rule 49.

Applying the factors in Rule 57.01, the court awarded the plaintiff costs on a partial indemnity basis fixed at $65,000, noting the importance of fostering access to justice and the defendants' failure to provide a costs outline.

Applicants sought rectification of a restated and amended trust deed governing an employee trust that held voting shares in a Canadian research and development corporation.

The wording of the deed permitted directions to the trustee from the CEO or President of the settlor, which the tax authority interpreted as giving a non-resident effective voting control and disqualifying the corporation from Canadian-controlled private corporation status under the Income Tax Act.

The applicants argued that the clause was mistakenly drafted and that the true intention was that only the board of directors would authorize directions to the trustee.

The court applied the rectification test from Performance Industries Ltd v Sylvan Lake Golf and Tennis Club Ltd and found that the parties had a consistent intention to preserve Canadian-controlled private corporation status to maintain eligibility for research tax credits.

The court concluded that the wording error misexpressed that intention and that the proposed amendment accurately reflected the original agreement.

Application under the Variation of Trusts Act seeking court approval of a variation to a family trust established in 1992.

The proposed variation would permit reorganization and distribution of trust assets to defer a significant capital gains tax liability arising from the Income Tax Act 21‑year deemed disposition rule.

All adult beneficiaries and trustees consented, and the Children’s Lawyer did not oppose the variation subject to a payment protecting contingent interests of minor and unborn beneficiaries.

The court applied the test from Finnell v. Schumacher Estate and related authorities, assessing whether the variation preserved the settlor’s intention and conferred a benefit on minor, unborn, unascertained, and incapable beneficiaries.

The court concluded that the variation preserved trust capital, benefited protected beneficiaries, and would be accepted by a prudent adult acting in self‑interest.

The applicants, a group of companies owned by Dondeb Inc., sought an Initial Order under the Companies' Creditors Arrangement Act (CCAA) to enable an orderly liquidation of their assets.

The application was opposed by approximately 75% of the secured creditors, who argued for individual receiverships due to a lack of confidence in the applicants' principal and the burden of CCAA administrative costs.

The court dismissed the CCAA application, finding it unlikely that a successful plan could be developed and approved by the creditors.

Instead, the court issued a Global Receivership Order, which was supported by the opposing creditors, to achieve an orderly liquidation at a lower cost.

Following a motion, the court determined the appropriate costs award between the parties.

The successful party sought costs on a substantial indemnity basis and relied on an earlier offer to settle under Rule 49 of the Rules of Civil Procedure.

The court rejected the argument that the motion had little chance of success and declined to award substantial indemnity costs.

It also found that the offer to settle related to the entire action rather than the summary judgment motion and therefore did not trigger Rule 49 cost consequences.

The plaintiff moved for summary judgment seeking payment of approximately $2.53 million under a promissory note issued as part of a share sale transaction.

The defendant argued that payment obligations under the note were conditional upon its compliance with financial covenants contained in a specific 2007 banking facility letter with its lender.

The court interpreted the promissory note and held that the relevant covenants were those contained in the specifically referenced 2007 facility letter, not later amendments.

Because the defendant could not make payment without breaching those original covenants, the condition precedent to payment had not been satisfied.

The motion for summary judgment was therefore denied.

The appellants appealed an order granting the respondent relief from forfeiture of a 10% interest in a land development project.

The respondent had acquired the interest from her former common-law husband through a matrimonial order, subject to the appellants' security interest for a loan.

After the husband defaulted, the respondent tendered full payment of the loan shortly after the deadline.

The Court of Appeal upheld the application judge's finding that the respondent met the three-part test for relief from forfeiture, noting her conduct was reasonable and there was a substantial disparity between the value of the forfeited property and the damage caused by the breach.

The appellant appealed a trial judgment awarding the respondent $143,755 plus costs and 18% interest for an unpaid account.

The appellant argued it was owed a $30,000 credit and that rebates should have been processed despite the overdue account.

The Court of Appeal dismissed the appeal, finding the evidence strongly supported the trial judge's conclusions that the appellant was in default, the respondent was entitled to terminate the agreement, and the applicable interest rate was 18%.

The plaintiffs sought leave to appeal to the Divisional Court from an order setting aside an ex parte Anton Piller order.

The motion judge had set aside the order due to material non-disclosure, including the failure of the plaintiff, a status Indian, to disclose that his undertaking as to damages was unenforceable under s. 89(1) of the Indian Act, and the failure to present a complete factual picture.

The Divisional Court found that while the failure to disclose the Indian Act provision might not alone justify setting aside the order, the overall material non-disclosure regarding the business relationship justified the motion judge's decision.

The motion for leave to appeal was dismissed.

The plaintiffs obtained an ex parte Anton Piller order, which was subsequently set aside by a Superior Court judge.

The plaintiffs sought to appeal the setting aside of the order and brought a motion before a single judge of the Court of Appeal for a stay pending appeal.

The Court of Appeal judge determined that the order setting aside the Anton Piller order was interlocutory, not final, because it did not determine the real matter in dispute between the parties.

Consequently, the appeal belonged in the Divisional Court, and the motion for a stay in the Court of Appeal was dismissed.

The appellant appealed the dismissal of its application for a declaration that it owned a Porsche purchased from a third party who fraudulently claimed to have bought it from the respondent dealership.

The Court of Appeal allowed the appeal, finding that the dealership's act of registering the vehicle in the appellant's name provided prima facie evidence of the third party's authority to sell.

The appellant was declared the true owner, and a cross-appeal was allowed on consent, ordering the dealership to pay a specified sum to a credit company.

The appellant employer appealed a trial judgment awarding the respondent 15 months' notice for wrongful dismissal.

The appellant argued the respondent was an independent contractor, that a release barred her claim, and that prior asset sales severed her employment history.

The respondent cross-appealed, seeking a longer notice period.

The Court of Appeal dismissed both the appeal and cross-appeal, upholding the trial judge's findings that the respondent was an employee, that her employment history carried over through asset sales, and that the 15-month notice period was within the acceptable range.

The debtor appealed a decision by Jarvis J. The Court of Appeal for Ontario dismissed the appeal, finding no error in the motion judge's factual findings, appreciation of the evidence, or application of the relevant law.

Costs were fixed at $7,500.