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
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.
Held: Because of concurrent liability in
contract and tort, a claim is not necessarily grounded in contract
law even when it relates to a contractual relationship. Despite
that the underlying conduct giving rise to Aldo's claim
occurred in the context of a contractual relationship between
MasterCard, BMO, and Moneris, MasterCard did not establish that
this context transformed Aldo's pleading into an
"essentially contractual" claim.
Since no privity of contract existed between MasterCard and
Aldo, the New York choice of law clause was inapplicable.
Furthermore, because Aldo's claim was not contractual, it did
not require an exception to the doctrine of privity, such as
equitable subrogation, in order to bring the claim against
MasterCard. Aldo's claims against MasterCard were asserted as a
stranger to the licensing and processing agreements, not as a
subrogee; it need not wear any shoes but its own.
Trillium Power Wind Corporation v Ontario (Natural
Resources), 2013 ONCA 683
Facts: Trillium's proposed wind power
project was progressing under an Ontario provincial regulatory
structure when all such projects were cancelled by the Province
during a provincial election campaign. Trillium sought damages
against the Province for breach of contract, unjust enrichment,
taking without compensation (which it characterized
as expropriation), negligent misrepresentation, misfeasance,
and intentional infliction of economic harm. On a motion for
summary judgment the action was dismissed on the basis that it did
not disclose a reasonable cause of action. Trillium appealed.
Held: In granting the appeal, the Court of
Appeal held that while core policy decisions are immune to suit,
the exception is when governmental decisions are "taken in bad
faith" (for example for the specific purpose of injuring
someone, as alleged by Trillium). The Court reiterated the lower
Court's finding that decisions based on public policy
considerations are within the proper role of government and
therefore immune to suit. It upheld the dismissal of all of
Trillium's claims except its allegations of misfeasance,
specifically that the Province's decision to cancel the wind
power program was targeted at Trillium to injure it by crippling
its financial capacity.
The editor wishes to acknowledge the valuable
contributions of Elka Dadmand to these case notes.
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