Canada: Aldo Can Sue MasterCard In Ontario, Court Rules

Last Updated: March 12 2014
Article by W. Michael G. Osborne

A choice of forum clause will generally not be enforced against a non-party to the contract containing the clause, the Ontario Court of Appeal held in a recent decision arising in the context of credit card payment systems.

Aldo (a shoe retailer) sued MasterCard International in tort to recover US$4.87 million that was debited by its payment processor, Moneris, to reimburse certain banks for assessments made by MasterCard International. MasterCard made the assessments after taking the position that Aldo was responsible for a cybercrime attack on its systems because it failed to comply with its data security obligations. Aldo also sued Moneris.

MasterCard International moved for a stay of the action, arguing that the choice of law and forum clause in its licence agreements with the relevant acquiring banks, Bank of Montreal and its subsidiary Harris. That clause invoked the laws and exclusive jurisdiction of the State of New York.

Interestingly, the merchant agreement between Aldo and Moneris also contained a choice of law and forum clause in favour of Ontario. Moneris joined with Aldo in opposing the stay.

Aldo was not a party to the MasterCard-BMO agreement; nor was MasterCard a party to the Aldo-Moneris agreement.

The issue before the court was whether the choice of forum clause in the MasterCard-BMO agreement should bind Aldo as a non-party.

MasterCard took the position that because Aldo's claim arose in the context of a contractual relationship between MasterCard, BMO, and Moneris, to which it was not a party, its claim could only be asserted as an equitable subrogee of BMO, making it subject to the choice of law and forum clause.

Both the motion judge (Justice David Brown) and the Court of Appeal disagreed, holding that the essential character of the claim was not one of equitable subrogation. Although the underlying context of the case involved the contractual relationship between MasterCard, BMO, and Moneris, it was not limited to that relationship. Aldo pleaded its case in tort against MasterCard as a stranger to the underlying agreements; it did not assert any contractual claim against MasterCard.

The court then considered whether Aldo should nevertheless be bound by the choice of forum clause. The existing Canadian authorities prevent parties from attempting to escape choice of forum clauses that they have agreed to by pleading causes of action other than in contract or adding other parties. But those cases do not compel the conclusion that a plaintiff is bound by a forum selection clause to which it did not agree simply because its claim arises in the context of another party's contractual relationship that includes the clause.

The court went on to examine the US "closely related" doctrine. This doctrine would apply a choice of forum clause to non-signatories where they are so closely related to the dispute that it is foreseeable that they would become bound by the clause. Writing for a unanimous panel, Tulloch JA explained:

The "closely related" doctrine operates to bind non-signatories to a forum selection clause where they are so closely related to the dispute that it is foreseeable that they would become bound by the clause. A non-party is "closely related" to a dispute if its interests are completely derivative of and directly related to, if not predicated upon, the signatory party's interests or conduct: Weingrad.

Tulloch JA noted that "there are good reasons to limit the scope of forum selection clauses to those parties who have bargained for their application". While the foreseeability requirement attempts to accommodate this concern, this inquiry is uncertain and injects flexibility into the scope of application of choice of forum clauses. This, he held, "it runs contrary to well-established policy rationales for enforcing forum selection clauses, including certainty and security in commercial transactions".

The court refrained from rejecting the closely related doctrine wholesale, citing a number of US cases where the doctrine has been sensibly applied, for example in the case of guarantors whose interests are completely derivative. That was not the case here, the court held; Aldo's interests are not completely derivative and directly related to the interests of any signatory to the contract containing the New York choice of forum clause.

The court also noted that MasterCard exercised significant control over the contractual terms governing issuance and processing of its credit cards, and even required that certain terms be included in merchant contracts. It was open to MasterCard to do the same for the choice of forum clauses, yet it did not.

This decision confirms that non-parties to a choice of forum clause will not be bound by the clause, except in narrow circumstances (for example, a derivative or subrogated claim). The same result would likely obtain for arbitration clauses.

This decision may have broader implications for payment systems. Credit card transactions seem simple enough. Yet credit card payment systems are governed by a complex web of contracts between credit card networks, issuing banks, acquirers, payment processors, merchants, and consumers. The system is made more complex by the fact that these agreements are a series of bilateral or trilateral contracts. That is, not all parties to a credit card transaction are parties to all of the agreements. This decision suggests that courts will not enforce rules found in one contract in this web against a non-party to that contract, unless the rules are not explicitly adopted in a contract to which the person is a party.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

W. Michael G. Osborne
Events from this Firm
4 Nov 2016, Seminar, Toronto, Canada

Michael Osborne will co-chair The Advocates’ Society’s new program Interviewing Skills: Gathering the Best Evidence for Your Case, on Friday, November 04, 2016.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.