Gowlings Commercial Litigation Case Notes – December 2013

Aldo Group Inc v Moneris Solutions Corporation, 2013 ONCA 725 – privity of contract

Facts: In licensing and processing agreements between MasterCard, BMO and Moneris (a third-party credit card processor), MasterCard incorporated a forum clause in favour of New York State. Moneris & BMO contracted with Aldo, a shoe retailer, and that agreement included a choice of forum clause in favour of Ontario. Aldo was a victim of a cybercrime attack and brought an action against MasterCard asserting various tort claims.

MasterCard sought to enforce the New York forum clause and argued two main points:  1) Aldo's claim was essentially contractual and thus the New York forum clause was applicable; and 2) Aldo could only assert its claims as an equitable subrogee, and had to accept the original party's limitations including the forum clause. The motion judge rejected both arguments.