Contracts of Adhesion

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	2096
Page Categories:	[Legal Principles]
Citation:	Contracts of Adhesion, CLNP 2096, <>, retrieved on 2024-11-23
Editor:	Sharvey
Last Updated:	2023/02/06

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Frankie Tomatto’s Woodbine Inc. v. Moneris Solutions Corporation, 2009 CanLII 28205 (ON SC)

[32] The Agreement is one of adhesion as admitted by all parties to the litigation. It is a one-way agreement on a standard pre-printed form prepared by Moneris which provided no choice or opportunity to negotiate the terms. Contracts of adhesion will be strictly construed against the maker in accordance with the contra proferentum rule. (See: Manulife Bank of Canada v. Conlin (1996), 1996 CanLII 182 (SCC), 30 O.R. (3d) 577 (S.C.C.) and Shelanu Inc. v. Print Three Franchising Corp. (2002), 2003 CanLII 52151 (ON CA), 64 O.R. (3d) 533 (C.A.).)

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[42] The Ontario Court of Appeal has held that, “Incorporation of terms into a contract by reference to an outside document should not occur unless notice of the terms to be incorporated has been provided in a manner that would lead the reasonable person to conclude that they were to be incorporated into the contract”. (See: Morgan Trust Co. of Canada v. Falloncrest Financial Corp. (2006), 2006 CanLII 38728 (ON CA), 218 O.A.C. 71 (C.A.) at para. 26.)

[43] In my view, there is far too much uncertainty with respect to which rules Frankie was to abide by. The Agreement provided that Frankie was required to abide by the “Card Association Rules and Regulations”. However, there was no document that bears that title in printed form or on any of the websites of Moneris, BMO or MasterCard. There was a Merchant Rules Manual on the MasterCard website, but even if that was what is referred to as the Card Association Rules and Regulations, Moneris did not comply with the Agreement by advising Frankie of the Merchant Rules Manual as it was required to do pursuant to the clause referred to in paragraph [34] above.

[44] Contracts of adhesion are strictly construed against their makers. As held by the Supreme Court of Canada, where there is any ambiguity in the terms used in the contract of adhesion, the words of the contract should be construed against the party that drew it by applying the contra preferentum rule. It stated that this is a sensible rule because “the lending institutions that normally draft these agreements can readily amend their documents to ensure that they are free from ambiguity”. (See: Manulife Bank of Canada v. Conlin (1996), 1996 CanLII 182 (SCC), 6 R.P.R. (3d) 1 (S.C.C.) at paras. 7-9.)