Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

Civil procedure — Courts — Contracts — Characterization of claims —Jurisdiction — Forum chosen in contracts between MasterCard, Bank of Montreal, Harris National Association and Moneris Solutions Corporation — Alternate forum chosen in contract between Moneris and The Aldo Group Inc. — Whether the appeal court erred in finding that Aldo is not bound by the forum selection clause contained in MasterCard’s contracts with BMO and Harris and/or MasterCard’s contract with Moneris — Whether the appeal court erred in articulating and applying the “closely related” doctrine — Whether the appeal court erred by concluding that Aldo is not a “closely related party” to whom that forum selection clause should apply — Whether the appeal court erred in concluding that Aldo’s claims were not contractual in nature — Whether the appeal court erred in articulating and applying the doctrine of equitable subrogation — Whether the appeal court erred by concluding that Aldo was not asserting its claims against MasterCard by way of equitable subrogation — Whether the appeal court erred by introducing asymmetry to the doctrine of privity by permitting a non-signatory to a contract to accept and invoke some of the contract’s terms while rejecting and disregarding others.

MasterCard entered into licensing agreements with the Bank of Montreal and Harris National Association and a Third Party Processing Agreement with Moneris which included choice of law and choice of forum clauses in favour of New York. Moneris then entered into a Merchant Agreement with The Aldo Group Inc. for itself and BMO which included a forum selection clause in favour of Ontario. MasterCard, which was not a party to the Merchant Agreement, required certain clauses in merchant agreements, but did not specify forum selection clauses.

When Moneris identified a potential breach of Aldo’s computer system that allegedly led to fraudulent transactions, MasterCard took the position that Aldo had failed to comply with its data security obligations, and debited the Acquiring Banks’ account for the assessed financial liability. In turn, Aldo’s account was debited. Aldo initiated an action against MasterCard and Moneris pleading multiple tort claims. MasterCard moved to stay the statement of claim on the grounds that the New York forum selection clause applied to the action. The motions judge denied the stay, and the Court of Appeal dismissed MasterCard’s appeal.