Court of Appeal for Ontario

Date: 20221221 Docket: C70440

Before: Pepall, van Rensburg and Benotto JJ.A.

Parties

BETWEEN Savanta Inc. Plaintiff (Appellant)

and

Thomas Hilditch and Teresa Hilditch Defendants (Respondents)

AND BETWEEN

Thomas Hilditch and Teresa Hilditch Plaintiffs by Counterclaim (Respondents)

and

Savanta Inc. and GEI Consultants, Inc. Defendants by Counterclaim (Appellants)

Counsel

For the appellants: Douglas D. Langley For the respondents: Erik Savas

Heard: December 14, 2022

On appeal from the order of Justice Janet E. Mills of the Superior Court of Justice, dated March 1, 2022, with reasons reported at 2022 ONSC 1384.

Reasons for Decision

1At the conclusion of oral submissions, we advised counsel that the appeal would be dismissed with reasons to follow. These are our reasons.

2The appellant, Savanta Inc. (an Ontario corporation), brought an action against the respondents. The respondents counterclaimed and added Savanta’s parent company, GEI Consultants, Inc. (a Massachusetts corporation), as a party. Savanta filed a defence to the counterclaim and moved for a stay of those portions of the action relating to a Share Purchase Agreement (SPA) signed by the parties. Savanta and GEI alleged that the forum selection clause of the SPA mandated that Massachusetts has exclusive jurisdiction.

3The relevant portion of the forum selection clause provides that any dispute contemplated by the agreement:

… must be brought in any state or federal court of competent jurisdiction in the Commonwealth of Massachusetts, and each Party irrevocably submits and agrees to attorn to the non-exclusive jurisdiction of such court. [Emphasis added.]

4The appellants argue here, as they did before the motion judge, that the clause conferred exclusive jurisdiction on Massachusetts because the phrase “non-exclusive jurisdiction of such court” meant non-exclusive as between state and federal court in Massachusetts.

5The motion judge found that the clause was ambiguous and, thus, could not confer exclusive jurisdiction on Massachusetts. She concluded that the wording of the clause did not meet the standard of “clear and express language … required to confer exclusive jurisdiction”: Sleep Number Corporation v. Maher Sign Products Inc., 2020 ONCA 95, at para. 7.

6In interpreting the clause, she rejected the appellants’ submission that the words “non-exclusive” related to courts within Massachusetts and concluded that Massachusetts had non-exclusive jurisdiction. Consequently, Ontario had jurisdiction.

7The appellants submit that the motion judge erred in law by failing to consider all the words of the clause. They submit that the motion judge concentrated on the meaning of “non-exclusive” and did not consider the words “of such court”. Had she done so, she would have found that the words “of such court” meant as between courts in Massachusetts.

8We dismiss this ground of appeal.

9The motion judge did consider all the words of the clause. At paras. 9 and 10 of her reasons, she articulated the appellants’ position:

Savanta and GEI submit this is an exclusive jurisdiction clause as any dispute “must be brought in any state or federal court of competent jurisdiction in the Commonwealth of Massachusetts” and that the subsequent use of the word “non-exclusive” is intended to refer narrowly to only the state or federal court in the Commonwealth of Massachusetts. The Hilditch defendants submit this is a non-exclusive jurisdiction clause requiring them to attorn to Massachusetts if an action is commenced in that jurisdiction, whether before the state or federal court, but not to the exclusion of any other court having jurisdiction.

It is not at all clear that the word “non-exclusive” was intended to refer only to the state or federal courts in Massachusetts despite the mandatory language of the clause.

10We do not agree that the motion judge failed to consider all the words of the clause in coming to her conclusion.

11The motion judge’s interpretation of this non-standard form clause is entitled to deference: Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 52. We see no palpable and overriding error requiring intervention.

12The appeal is dismissed, with costs in the agreed upon amount of $17,748 inclusive of disbursements and applicable tax.