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 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 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.

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.