On October 8, 1999 Justice Warren Winkler of the Ontario Superior Court of Justice granted a motion by Microsoft Corporation to permanently stay a proposed Ontario class action brought by two lawyers on behalf of all Canadian residents who are members of the Microsoft Network. Deborah Glendinning and Joseph Starkman of Osler, Hoskin & Harcourt LLP acted as counsel for Microsoft on the successful motion. Previous counsel for Microsoft was Lloyd Hoffer, formerly of Morris/ Rose/Ledgett. Counsel for the plaintiff was originally J. Douglas Barnett of Barnett Litigation Associates. At the hearing the plaintiffs were represented by Craig M. Houle of Paroian, Raphael, Courey, Cohen & Houston. In staying the action Justice Winkler held that a choice of forum clause was part of the same agreement upon which the plaintiffs had based their claim.
The decision should provide comfort for technology companies and companies which rely on what is known as “click-wrap” license agreements. The decision is unique because it deals with the enforceability of these oft used types of agreements. As long as the terms are presented in a reasonable way and the consumer is directed to read them, they should be treated just like any other written contract.