Aldo Group Inc. v. Moneris Solutions Corp. et al.

• Jurisdiction: Ontario
• Judge: Blair, Juriansz and Tulloch, JJ.A.
• Date: 29 November 2013
• Citation: 2013 ONCA 725,(2013), 313 O.A.C. 122 (CA)
• Court: Court of Appeal (Ontario)

Aldo Group v. Moneris Solutions Corp. (2013), 313 O.A.C. 122 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. DE.004

The Aldo Group Inc. (plaintiff/respondent) v. Moneris Solutions Corporation and MasterCard International Inc. (defendants/respondent/ appellant )

(C55533; 2013 ONCA 725)

Indexed As: Aldo Group Inc. v. Moneris Solutions Corp. et al.

Ontario Court of Appeal

Blair, Juriansz and Tulloch, JJ.A.

November 29, 2013.

Summary:

MasterCard International Inc. brought a motion asking that The Aldo Group Inc.'s claim against it be stayed pursuant to s. 106 of the Courts of Justice Act on account of forum selection clauses in favour of New York in agreements to which Aldo was not a party.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 2581, dismissed the motion. MasterCard appealed.

The Ontario Court of Appeal dismissed the appeal.

Conflict of Laws - Topic 7286

Contracts - Jurisdiction - Choice of forum by parties - MasterCard signed Licence Agreements with Bank of Montreal (BMO) and Harris National Association (Harris) as "Acquiring Banks" - BMO and Harris entered into agreements with a third party processor, Moneris Solutions Corp. - Moneris entered a Third Party Processing Agreement with Mastercard - Moneris and BMO entered a contract with Aldo Group Inc., an international retailer (the Merchant Agreement) - The Merchant Agreement included a choice of law and choice of forum clause in favour of Ontario - Aldo brought a claim against Moneris and MasterCard arising from transactions at Aldo stores which allegedly resulted in fraudulent transactions - Aldo plead claims against MasterCard in tort and unjust enrichment and for declaratory relief - MasterCard moved for a stay of Aldo's action pursuant to s. 106 of the Courts of Justice Act on account of forum selection clauses in favour of New York in the License Agreements and the Third Party Processing Agreement, to which Aldo was not a party - MasterCard submitted that Aldo asserted its claims as an equitable subrogee of the Acquiring Banks and Moneris and it was therefore subject to the choice of forum clauses in the Licence Agreements and the Third Party Processing Agreement - The motion was dismissed - The motion judge found that Aldo's claims could not be reduced to claims by a subrogee against MasterCard - Rather, Aldo's primary claims against MasterCard were asserted as a stranger to the Licence Agreements and Third Party Processing Agreement - The Ontario Court of Appeal dismissed MasterCard's appeal - The motion judge did not err in his characterization of Aldo's claims - Aldo plead direct claims against MasterCard as a stranger to the Licence Agreements and Third Party Processing Agreement - Aldo did not assert any contractual claim against MasterCard - It did not bring its claim as an equitable subrogee - See paragraphs 31 to 37.

Conflict of Laws - Topic 7286

Contracts - Jurisdiction - Choice of forum by parties - MasterCard International Inc. asked that The Aldo Group Inc.'s claim against it be stayed pursuant to s. 106 of the Courts of Justice Act on account of forum selection clauses in favour of New York in agreements to which Aldo was not a party - The motion was dismissed - MasterCard appealed - The Ontario Court of Appeal reviewed the Canadian authorities relied on by MasterCard in support of its argument that Aldo was bound by the New York forum selection clauses - None of those authorities was dispositive of this case - The court stated that "these authorities 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" - See paragraphs 39 to 44.

Conflict of Laws - Topic 7286

Contracts - Jurisdiction - Choice of forum by parties - MasterCard International Inc. asked that The Aldo Group Inc.'s claim against it be stayed pursuant to s. 106 of the Courts of Justice Act on account of forum selection clauses in favour of New York in agreements to which Aldo was not a party - The motion was dismissed - MasterCard appealed - MasterCard relied on U.S. cases which set out a "closely related" test to determine whether a non-signatory to a contract was nevertheless bound by that contract's forum selection clause based on its foreseeable application to the non-signatory - The Ontario Court of Appeal stated that "Although the U.S. experience suggests that there may well be circumstances in which an Ontario court would seek to apply the 'closely related' doctrine to a non-signatory plaintiff, the present case is not one of them. In this case, the application of the 'closely related' doctrine would not assist MasterCard. Given the substance of its claim as pleaded, Aldo's interests are not completely derivative and directly related to the interests of any signatory to the New York forum selection clauses" - There was no reversible error in the motion judge's finding that it was not foreseeable to Aldo that MasterCard's New York forum selection clauses would apply to its claims - Accordingly, it was unnecessary at this juncture to determine the availability, in general, of the "closely related" doctrine - See paragraphs 45 to 50.

Contracts - Topic 9000

Rights and liability of strangers to contract - General - Privity of contract - [See all Conflict of Laws - Topic 7286 ].

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 21].

Aguas Lenders Recovery Group LLC v. Suez, S.A. (2009), 585 F. 3d 696 (2nd Cir.), refd to. [para. 25].

Coastal Steel Corp. v. Tilghman Wheelabrator Ltd. (1983), 709 F.2d. 190 (3rd Cir.), refd to. [para. 26].

Navionics Inc. v. Nautical Data International Inc., [2006] O.J. No. 5397 (Sup. Ct.), refd to. [para. 30].

BTR Global Opportunity Trading Ltd. et al. v. RBC Dexia Investor Services Trust et al., [2011] O.A.C. Uned. 478; 2011 ONCA 518, refd to. [para. 30].

Haig v. Bamford et al., [1977] 1 S.C.R. 466; 9 N.R. 43, refd to. [para. 34].

Edgeworth Construction Ltd. v. Lea (N.D.) & Associates Ltd. et al., [1993] 3 S.C.R. 206; 157 N.R. 241; 32 B.C.A.C. 221; 53 W.A.C. 221, refd to. [para. 34].

Alberta (Treasury Branches) v. Baker et al. (2002), 323 A.R. 213; 2002 ABQB 781, refd to. [para. 36].

Ontario New Home Warranty Program v. Grant et al., [2001] O.T.C. 579; 10 C.L.R.(3d) 230 (Sup. Ct.), affd. (2002), 167 O.A.C. 386; 4 R.P.R.(4th) 56 (C.A.), refd to. [para. 36].

Weingrad v. Telepathy, Inc., 2005 WL 2990645 (S.D.N.Y.), refd to. [para. 38].

Kates v. Wyant et al., [2002] O.T.C. 96; 27 B.L.R.(3d) 273 (Sup. Ct.), dist. [para. 40].

Crown Resources Corp. S.A. et al. v. National Iranian Oil Co. (2006), 273 D.L.R.(4th) 65 (Ont. C.A.), leave to appeal denied (2007), 367 N.R. 396; 233 O.A.C. 400 (S.C.C.), dist. [para. 41].

Momentous.ca Corp. et al. v. Canadian American Association of Professional Baseball Ltd. et al. (2010), 270 O.A.C. 36; 103 O.R.(3d) 467; 2010 ONCA 722, affd. [2012] 1 S.C.R. 359; 428 N.R. 141; 290 O.A.C. 202; 2012 SCC 9, dist. [para. 42].

Donaldson International Livestock Ltd. v. Znamensky Selekcionno-Gibridny Center LLC et al., [2008] O.A.C. Uned. 638; 305 D.L.R.(4th) 432; 2008 ONCA 872, dist. [para. 43].

Dalimpex Ltd. v. Janicki et al. (2003), 172 O.A.C. 312; 64 O.R.(3d) 737 (C.A.), dist. [para. 43].

ECS Educational Consulting Services Canada Ltd. v. Sheikh Al Nahyan et al., [2000] O.T.C. Uned. 137 (Sup. Ct.), affd. [2000] O.A.C. Uned. 274; 3 C.P.C.(5th) 76 (C.A.), refd to. [para. 46].

Pompey (Z.I.) Industrie et al. v. Ecu-Line N.V. et al., [2003] 1 S.C.R. 450; 303 N.R. 201; 2003 SCC 27, refd to. [para. 48].

Firefly Equities LLC v. Ultimate Combustion Co. (2010), 736 F. Supp. 2d 797 (S.D.N.Y.), refd to. [para. 49].

Lipcon v. Underwriters at Lloyd's, London (1998), 148 F.3d 1285 (11th Cir.), refd to. [para. 49].

Harster Greenhouses Inc. v. Visser International Trade & Engineering B.V. et al., [2011] O.T.C. Uned. 2608; 334 D.L.R.(4th) 481; 2011 ONSC 2608, refd to. [para. 51].

Expedition Helicopters Inc. v. Honeywell Inc. (2010), 262 O.A.C. 195; 100 O.R.(3d) 241; 2010 ONCA 351, refd to. [para. 51].

Counsel:

Chris G. Paliare and Robert A. Centa, for the appellant;

George J. Pollack and Michael H. Lubetsky, for the respondent, The Aldo Group Inc.;

Peter H. Griffin and Melanie K. Baird, for the respondent, Moneris Solutions Corporation.

This appeal was heard on April 11 and 12, 2013, before Blair, Juriansz and Tulloch, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Tulloch, J.A., and was released on November 29, 2013.