Canadian Journal of Law and Technology


Charles Morgan


case comment, e-contracts, e-commerce, online contract formation


It is trite to say that e-commerce has exploded over the last several years. Canadian individuals and businesses are entering into thousands and thousands of contracts online all the time. Yet, oddly enough, there is surprisingly little legal certainty or consistency regarding an essential legal question: what approach to online contract formation will create a binding legal contract? Such legal uncertainty is unfortunate, since buyers need to know when to ‘‘beware’’, merchants need to be able to manage risk, and courts need to have clear guidelines in order to be able to render informed, coherent decisions.

The issue of online contract formation was recently treated in the Quebec court decision Aspencerl.com v. Paysystems Corporation (Paysystems). The legal argument in the decision differs significantly from existing Canadian and Quebec jurisprudence on the subject of online contract formation. Accordingly, this case com- ment is intended to analyse and critique the Paysystems decision, to discuss and evaluate current approaches to online contract formation more generally, and to provide advice regarding how to mitigate the risk of a finding of non-enforceability.