Hidden Under Wraps: Validity of Online Terms and Conditions in Ontario
As the world continues to move further into the digital realm, traditional legal documents have also experienced a metamorphosis. Users often scroll through online agreements that require them to “click” to accept the terms – often without much thought. However, users should be mindful that these terms and conditions are generally valid and enforceable under Canadian law. As with any contract, users should be careful before agreeing.
Common online agreements often take one of two forms: clickwrap and browsewrap agreements. As the name suggests, clickwrap agreements require users to “click” a button or checkbox to accept the terms and conditions. Browsewrap agreements, on the other hand, require users to simply browse or access the website to implicitly agree to the terms and conditions through continued use of the website.
The common law rule established in Rudder v Microsoft Corp, 1999 CanLII 14923, confirmed the enforceability of clickwrap agreements. The court held that such agreements are not analogous to “fine print” and must be afforded the same sanctity as written agreements.[1] In Ontario, this principle is further codified in the Electronic Commerce Act, 2000, SO 2000, c. 17, which states that an offer may be expressed by touching or clicking on an appropriate icon.[2]
While the general rule is that clickwrap agreements are generally enforceable, they must still comply with general contract law requirements. Some of these include:
Offer and Acceptance: There must be an offer with clear and identifiable terms, demonstrating an intention to be bound. The communication of terms to the other party must be reasonable and sufficient.
Consideration: There must be a benefit to the promisor or a detriment to the promisee, and the consideration must be legally sufficient.
Canadian courts have also looked at the enforceability of browsewrap agreements, generally holding that they are enforceable as long as the consumer has the opportunity to read them before their use of the website can be considered acceptance.[3]
Moving into the digital realm requires exercising caution. A click is more than just a click. It can be a contract if the elements of contract law are complied with and consumers are given notice.
[1] Rudder v Microsoft Corp, 1999 CanLII 14923 at para 17 (Ont Sup Ct).
[2] Electronic Commerce Act, 2000, SO 2000, c. 17, s 19.
[3] Century 21 Canada Limited Partnership v Rogers Communications Inc, 2011 BCSC 1196 at para 108.
Last Updated: October 8, 2025
Disclaimer: This article is intended for general information purposes only. It is not intended as legal advice. It does not create a lawyer-client relationship and may not address your specific circumstances. You should consult with a qualified lawyer.