Click-through agreements are enforceable in Canada. A 1999 decision of the Ontario Superior Court of Justice clarified what was an ambiguous legal position for Canadian e-commerce vendors and licensors.
In Rudder v. Microsoft Corp., Justice Winkler dealt with the question of whether the "forum selection clause" in the Microsoft Network (MSN) online "click-through" Member Agreement was enforceable.
The plaintiffs alleged that MSN breached the Member Agreement by charging certain amounts against member credit cards. The plaintiffs also alleged that Microsoft failed to provide reasonable or accurate information concerning accounts. The plaintiffs had sought to bring a class action lawsuit against the software giant in Ontario. Microsoft was successful in having the suit dismissed on the grounds that the Member Agreement expressly provides that all actions must be brought in Washington.
Justice Winkler based his finding that the clause – and in fact the entire agreement – is enforceable on the need for "commercial certainty" in online contracting. The ruling stated that "the Membership Agreement must be afforded the sanctity that must be given to any agreement in writing."
The lower court also said that the plaintiffs could not attempt to rely on certain parts of the Agreement while challenging the enforceability of others.Contact Jennifer Jannuska or any members of our Information Technology Group for more information on Online Contracts in Canada.