A “drag-along” clause in a unanimous shareholder agreement covering a joint venture company will be enforced by an Ontario court despite the existence of a forum selection clause in a prior memorandum of understanding which would give New Zealand courts jurisdiction.
The case of 2072270 Ontario Inc. v. Dish Family Trust, 98 O.R. (3d) 198, explains why.
In the Dish case, four Canadian and four New Zealand individuals entered into a memorandum of understanding (“MOU”) covering the formation and operation of a joint venture company to carry on the business of manufacturing and distributing mobile and static shredding systems for the shredding and recycling industries in the Americas. The Canadian group was to own 50 per cent of the issued shares of the company, and the New Zealand group was to own the other 50 per cent. The Canadian group transferred its shares to a separate holding corporation which then paid a loan owed by the company to the New Zealand shareholders and which then became the holder of 95 per cent of the shares, with the New Zealanders holding the remaining 5 per cent.
The parties entered into a unanimous shareholder agreement (“USA”) containing a “drag-along” clause which required the New Zealand shareholders to sell their 5 per cent to any third party buying the shares of the holding corporation if requested to do so by the holding corporation. When the holding corporation agreed to sell its shares to a third party and requested the New Zealand shareholders to do so as well, the New Zealand shareholders refused. The holding corporation sought an order authorizing the sale to the third party. While the MOU contained a “choice of forum” clause selecting the courts of the jurisdiction of the defendant in any action brought under the MOU, the USA contained no such clause although it confirmed and incorporated the terms of the MOU.
In authorizing the sale to take place, the Superior Court declined to comply with the forum selection clause in the MOU, holding (at page 209) as follows:
I agree with the position of the applicant that the forum selection clause does not apply. The MOU was signed when [the company] AXO was owned equally by the Canadian principals and the New Zealand principals. The purpose of s. 28 of the MOU was to settle disputes over governance of the company among the two groups of principals – first by mediation, and if that was unsuccessful, by a lawsuit in the jurisdiction of the defendant. This is a reasonable clause, when the company is owned equally by parties in Canada and in New Zealand. It is not reasonable when 95 per cent of the owners are in Canada and only 5 per cent are in New Zealand. The unanimous shareholders’ agreement which contains the drag along provisions in s. 4 also states in s. 1 that where there are differences between the USA and the MOU, the USA shall prevail. Further, if the forum selection clause of the MOU is still in effect, in my view, the plaintiff has shown “strong cause” why it should not apply.
The Dish case is another reminder that courts will assume jurisdiction in a dispute if the circumstances warrant, despite a forum selection clause to the contrary.