Corporate Transactions, Mergers & Acquisitions Archives

The Ontario Court of Appeal recently upheld the Superior Court’s decision in Savanta v. Hilditch, which considered ambiguous language regarding jurisdiction over disputes in a Shareholder Purchase Agreement. The dispute centred around whether the Shareholder Purchase Agreement conveyed exclusive jurisdiction to the courts of Massachusetts, or whether Ontario could adjudicate the dispute, as litigation had been commenced in both places.

Massachusetts Corporation (“GEI”) acquires Ontario Corporation (“Savanta”)

The Plaintiff, in this case, was Savanta. Savanta is a privately held Ontario corporation that provides environmental consulting services.

The other party in this case (a co-defendant), was GEI Consultants, Inc. (“GEI’”), which is a privately held corporation incorporated under Massachusetts law. GEI’s head office is in Massachusetts. GEI also offers environmental consulting in the United States.

GEI incorporated GEI Consultants Corporation to purchase Savanta’s shares under a Share Purchase Agreement which was signed in January 2019. After GEI Consultants Corporation acquired Savanta, it amalgamated with GEI, making GEI the sole shareholder of Savanta at the time of these proceedings.

Savanta commenced lawsuit in Ontario; GEI commenced lawsuit in Massachusetts

Savanta began a lawsuit in Ontario. GEI began a lawsuit in Massachusetts. The parties challenged the jurisdiction of the Ontario court to adjudicate certain matters which were in dispute. The other co-defendant, the Hilditch defendants, wanted the lawsuit to continue in Ontario. The Hilditch defendants were employees of Savanta. The Hilditch defendants were involved in a dispute over their employment agreements and non-competition agreement, which all parties agreed was properly dealt with in Ontario, and which formed part of the overall litigation.

Ambiguous language in the Share Purchase Agreement did not provide Massachusetts court with exclusive jurisdiction

The Share Purchase Agreement contained a section which provided that any dispute relating to that Agreement:

“[m]ust 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.”

Both Savanta and GEI argued that this was an “exclusive jurisdiction” clause. They argued that the word “non-exclusive” referred only to the state or federal court of Massachusetts.

The Ontario Superior Court disagreed with Savanta and GEI’s interpretation of this clause, holding that “the parties ought to have been more precise in their language by simply using the word exclusive.” By not doing so, they created ambiguity within the Share Purchase Agreement as to their intentions. The Share Purchase Agreement did not have the “clear and express language” that was required in order to convey exclusive jurisdiction to a particular court or place.

Ontario Superior Court determines that Ontario is the most convenient forum to adjudicate the dispute

The Superior Court found that the language of the Share Purchase Agreement did not oust its jurisdiction. Subsequent to this finding, the Court was then required to determine whether it was the most convenient forum to hear the dispute – that is, would it exercise its jurisdiction?

While Savanta had already consented to the jurisdiction of Ontario courts by starting its claim within Ontario, this was not determinative of whether Ontario would exercise its jurisdiction.

Several factors assessed to determine the most convenient forum

In a previous case of Muscutt at al. v. Courcelles, the Ontario Court of Appeal provided the factors to be considered when determining the most convenient forum for the hearing of a case. While not an exhaustive list, these factors are intended to assist a judge in deciding which jurisdiction has a real and substantial connection to the dispute. These factors include:

The location with the majority of the parties;
The location of key witnesses and evidence;
The contractual provisions that specify the law or jurisdiction;
The avoidance of having multiple proceedings;
The applicable law and its weight in comparison to the factual questions to be determined;
Geographical factors suggesting the best forum;
Whether declining jurisdiction would deprive the plaintiff of a legislative juridical advantage available in the domestic court.

The Superior Court also considered three additional factors, which are:

The threshold for displacing the plaintiff’s choice of jurisdiction is high;
Efficiency and convenience should be balanced against the fairness and justice of a particular forum;
At this stage, the court should be cautious about making findings of fact about the dispute itself.

Dispute had a stronger connection to Ontario

The Superior Court acknowledged that this was an “unusual motion” as it was the plaintiff and one co-defendant who sought to displace their own choice of jurisdiction. The burden was on the plaintiff, Savanta, to demonstrate that Massachusetts was the more appropriate place for the dispute to be determined.

The Superior Court considered that three of the four parties in the underlying proceeding were located within Ontario. The witnesses would all be from either Ontario or Massachusetts. There was also a risk of multiple proceedings, given that GEI had commenced a lawsuit on the same issues within Massachusetts. However, certain claims made concerning the Share Purchase Agreement would turn on the outcome of another aspect of this proceeding regarding the termination of employment of Mr. Hilditch. This aspect of the proceeding was one that all parties agreed was within the exclusive jurisdiction of the Ontario courts. While this was not considered “particularly compelling” it was one additional factor weighing in favour of Ontario.

Considering all the Muscutt factors, the Superior Court found that Ontario was the most convenient forum to hear all the disputes, holding that the dispute had a “much stronger connection with Ontario” than with Massachusetts.

Ontario upheld to be the most convenient forum

Savanta and GEI appealed the decision of the Superior Court to the Ontario Court of Appeal. Savanta and GEI argued that the judge did not consider the meaning of “of such court” found within the jurisdiction clause of the Shareholder Purchase Agreement. They argued that this made the clause clear that it was referring to only the courts of Massachusetts:

“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.”

The Ontario Court of Appeal rejected this argument and noted that the threshold that Savanta and GEI needed to meet was that of “palpable and overriding error” on the part of the motions judge. They did not meet that threshold.

The Court awarded costs of $18,390 and $17,748 against Savanta and GEI.

The Lawyers at Bader Law in Toronto advise clients on contracts, corporate organization, and shareholder disputes

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In a recent Ontario decision, the court addressed the impact of the COVID-19 pandemic on a commercial transaction after one party tried to use the pandemic as a reason to terminate the deal.

Party Attempts to Terminate Transaction in Wake of COVID-19

On February 18, 2020, Fairstone Financial Holdings Inc. and its subsidiaries signed a share purchase agreement with the Duo Bank of Canada pursuant to which Duo agreed to purchase Fairstone’s business. Closing was scheduled for June 1, 2020.

However, on May 27, 2020 Duo advised Fairstone that it would not be closing on June 1 as planned. Duo took the position that four covenants in the share purchase agreement allowed it to avoid closing: the material adverse event covenant, the ordinary course covenant, the amortization event covenant and the access to information covenant.

Duo claimed that the first three covenants had been triggered by events that occurred or were expected to occur as a result of the COVID-19 pandemic. As such, Duo took the position that it was entitled to terminate the transaction.

In response, Fairstone brought an application for specific performance.

Relevant Terms of the Share Purchase Agreement

The material adverse event covenant– In the share purchase agreement, Fairstone covenanted that no material adverse effect should have occurred between the date of signing and the date of closing. In the agreement, material adverse effect was defined so as to exclude effects that were caused by:

worldwide, national, provincial or local emergencies;
changes in the markets or industry in which Fairstone operates; or
the failure of Fairstone to meet any financial projections.

The ordinary course covenant– The ordinary course covenant required Fairstone to act between signing and closing in a manner that was consistent with its past practices and that was in the ordinary course of normal day-to-day operations, to the extent it was lawfully able to do so.

The amortization event covenant– Pursuant to the amortization event covenant, Fairstone agreed, among other things, that its losses within its loan portfolios would not exceed a certain trigger point.

The access to information covenant – The access to information covenant required Fairstone to furnish Duo with such financial and operating data as was reasonably necessary for Duo to consummate the transaction.

Court Orders Specific Performance

First, the court found that, while a material adverse effect did occur as a result of the COVID-19 pandemic, the three carveouts from the material adverse effect clause took Duo’s complaints outside of the scope of the clause, stating:

“Here the adverse effect was clearly caused by the pandemic which falls into the definition of the first carveout. In addition, the changes of which Duo complains are changes to the entire market and industry in which Fairstone operates. They are not changes unique to Fairstone. Third, Duo’s fundamental complaint is that Fairstone failed to meet the projections contained in its financial plan. The first two carveouts have the added nuance that they apply only to the extent that Fairstone has not been disproportionately adversely affected relative to other persons in the industries or markets in which Fairstone operates. I have concluded that Fairstone has not been disproportionately affected.”

With regard to the ordinary course covenant, the court found the steps Fairstone had put into place after the pandemic had been declared were consistent with steps it had put into place during past recessions and/or were steps that one would expect a business to put into place as part of its ordinary course operations during a recession. The court stated that, to the extent that Fairstone had taken steps that it had not taken in the past, it had been required to do so by law. As such, the court held that Fairstone’s behaviour fell within ordinary course operation principles.

Addressing the amortization event covenant, the court stated that the issue turned on whether, in the language of the agreement, a circumstance had existed that “would reasonably be expected to result in an amortization event .” The court held:

“The short answer to Duo’s complaint is that simply because a financial model might project an amortization event does not mean that it will occur. The whole point of obtaining those projections is to enable management to recalibrate the business to avoid the projected amortization event from ever occurring.”

Finally, the court dismissed Duo’s complaints under the access to information covenant, finding that they amounted to a fishing expedition and an attempt on Duo’s part to not close.

The court therefore concluded that none of the material adverse effect, ordinary course, amortization event or access to information covenants had been breached and none provided Duo with any basis for refusing to close the transaction.

As a result, the court ordered Duo to perform the share purchase agreement and close the transaction.

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Purchasing or selling a business is a complicated matter that can result in significant risk and liability if not handled correctly. Corporate transactions involve a variety of legal issues to consider, from employment contracts to real estate matters. If you are a business owner considering a purchase, sale, merger, acquisition, or other transaction, having the right legal team behind you can help you ensure the best outcome.

At Bader Law, our team provides business services that address every element of a merger or acquisition. We have been advising businesses and business owners for over a decade and have built a reputation for trusted guidance and overall excellence.

With more than two decades of collective merger and acquisition experience, Bader Law has the expertise to identify and flag potential trouble spots before they become problems. Our goal is to eliminate as many unknown elements in the process, so transactions move as smoothly as possible and our clients are not exposed to any unnecessary risk.

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At Bader Law, we always provide advice that is in your best interests and the best interests of your venture. Our lawyers consider the complete picture to identify and mitigate potential risks while protecting your business’ continued growth and success. Contact us online or at (289) 652-9092.