Saving Paper Could Cost You– Potential Perils Of Incorporating Terms By Reference: Razar Contracting Services Ltd v. Evoqua Water

Why this decision matters

In Razar Contracting Services Ltd. v Evoqua Water, 2021 MBQB 69 ("Razar Contracting"), the Manitoba Court of Queen's Bench refused to give effect to an arbitration clause located on the Defendant's website, which the Defendant referenced in the purchase order it issued. Razar Contracting tells a cautionary tale about attempting to incorporate standard terms and conditions into a transaction merely by referencing where those terms can be found.

Businesses who rely on incorporating terms and conditions to their transactions without specifically including the terms themselves in the exchanges with the counterparty will want to consider what steps they can take to ensure that they can demonstrate their terms and conditions (i) have been brought to the other party's attention; and (ii) were knowingly accepted.