Rudder v. Microsoft Corp.

Rudder v. Microsoft Corp. O.J. No. 3778 (Sup. Ct. J.). is the leading decision on clickwrap licenses and forum selection clauses in Canada.

Background

Rudder brought a class action on behalf of MSN 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. 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 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...
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