''Rudder v Microsoft Corp.''
999 999 or triple nine most often refers to:
* 999 (emergency telephone number), a telephone number for the emergency services in several countries
* 999 (number), an integer
* AD 999, a year
* 999 BC, a year
Books
* ''999'' (anthology) or ''999: T ...
OJ No 3778 (Sup Ct J). is an
Ontario Superior Court
The Superior Court of Justice (French: ''Cour supérieure de justice'') is a superior court in Ontario. The Court sits in 52 locations across the province, including 17 Family Court locations, and consists of over 300 federally appointed judges.
...
case that is the leading decision on
clickwrap A clickwrap or clickthrough agreement is a prompt that offers individuals the opportunity to accept or decline a digitally-mediated policy. Privacy policies, terms of service and other user policies, as well as copyright policies commonly employ t ...
licenses and
forum selection clause
A forum selection clause (sometimes called a dispute resolution clause, choice of court clause, jurisdiction clause or an arbitration clause, depending upon its form) in a contract with a conflict of laws element allows the parties to agree tha ...
s in Canada.
Background
Rudder brought a class action on behalf of
MSN
MSN (meaning Microsoft Network) is a web portal and related collection of Internet services and apps for Windows and mobile devices, provided by Microsoft and launched on August 24, 1995, alongside the release of Windows 95.
The Microsoft Net ...
subscribers in Canada for, among other things, improperly charging MSN subscriber's credit cards violating the terms of the contract.
Microsoft filed to dismiss the class action on the grounds of
forum non conveniens
''Forum non conveniens'' (Latin for "an inconvenient forum") (FNC) is a mostly common law legal doctrine through which a court acknowledges that another forum or court where the case might have been brought is a more appropriate venue for a legal ...
. They argued that the contract between them and the subscribers contained a forum selection clause which gave exclusive jurisdiction to Washington state to resolve any disputes.
Rudder argued that the particular clause was not valid as it was not adequately brought to the attention of the user. The provision was sufficiently important that it required special notice.
Opinion of the Court
Justice
Warren Winkler found in favour of Microsoft and held that the clause was enforceable. Winkler rejected Rudder's argument, stating that "Admittedly, the entire Agreement cannot be displayed at once on the computer screen, but this is not materially different from a multi-page written document which requires a party to turn the pages."
Winkler observed that users were required to click on the "I agree" button to accept the terms, and that the impugned clause was no harder to read than any of the others. The sign-up procedure itself required users to click "I agree" twice, where the second time the user was told that they would still be bound to the terms even if they do not read them all.
Winkler did not find it reasonable for Rudder to argue for the enforcement of all the other terms of the contract except for the forum clause. A finding in favour of the plaintiff, said Winkler, would not advance the goals of commercial certainty.
In concluding, Winkler held that "
click-wrap" agreements in general should be "afforded the
sanctity that must be given to any agreement in writing."
See also
*
List of notable Canadian lower court cases
A select number of decisions from the superior and inferior courts that have proven to be the leading case law in a number of fields and have subsequently been influential in other provinces, or else they are famous decisions in their own right. T ...
*
Caspi v. Microsoft Network – Similar US case
External links
text of decision
Canadian contract case law
1999 in Canadian case law
1999 in Ontario
Microsoft litigation
Ontario case law
{{Canada-law-stub