St-Arnaud c. Facebook inc.						2011 QCCS 1506
JD 2315    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF				MONTREAL
No:			500-06-000511-101
DATE:		April 1st, 2011
_____________________________________________________________________
BY:	THE HONOURABLE				MICHEL DÉZIEL, J.S.C.
_____________________________________________________________________
PATRICE ST-ARNAUD
Petitioner
v.
FACEBOOK INC.
Respondent
_____________________________________________________________________
JUDGMENT
_____________________________________________________________________

Introduction

[1]           On July 6, 2010, the Petitioner Patrice St-Arnaud («St-Arnaud») filed a Motion to Authorize the bringing of a Class Action and to Ascribe the status of representative («Motion for Authorization»).

[2]           On February 21^st, 2011, the Court granted a Motion for permission to amend St-Arnaud's Motion for Authorization.

[3]           St-Arnaud presented the motion principally to limit the proposed Class Action to  Quebec residents only, specifically the Group:

« All physical persons (including their estates, executors, or personal representatives), corporations, and other entities, in the Province of Québec, who were subject to either misrepresentatives, breach of privacy, invasion of privacy, breach of confidence, or other wrongful practices or misappropriations by the Respondent in regard to their personal information, including the loss of or unauthorized disclosure of said personal information by the Respondent to third parties, or any other Group to be determined by the Honourable Court, (hereinafter (…) Group Members are collectively referred to as "Petitioners", "Group Members", the "Group", or "Users");»

[4]           The Court is seized with a De Bene Esse Amended Motion for Declinatory Exception presented by Facebook Inc. («Facebook») based upon the lack of jurisdiction of the Superior Court of Quebec and upon the fact that the Superior Court is forum non conveniens.

The facts

[5]           St-Arnaud resides in the City of Montreal and has been a registered user of the website Facebook.com since 2007.

[6]           St-Arnaud describes the facts leading to an individual action by each of the members of the Group:[1]

« 5.      Facebook.com allows members to communicate and share information with friends, family, co-workers, classmates and other people who share similar interests. Facebook.com requires Users such as those in the position of the Petitioner to register an account to access these services.

6.      Registering an account requires a User to provide a name, gender, date of birth, and a valid e-mail address. After providing this information Users can create personal profiles and post messages, photos, and videos. To assist in the creation of their profiles Users are asked to provide personal information including, but not limited to, schools they attended, their home city, interests, and employers.

7.      Users can add friends and send them messages and may further update their profiles to notify friends about their activities and opinions. Users can also join "networks" or people with similar interests and backgrounds. Such network criteria may include, by way of example, users organized by city, school, workplace, and region.

8.      The Petitioner, as with other Users, is the owner of all of the content and information posted on his Facebook.com account and said content and information cannot lawfully be appropriated by the Respondent without the proper and informed consent of the Petitioner and other Users. As set forth below, Facebook (…) has disclosed and/or misappropriated said content and information for its benefit and gain.

9.      Because of the amount of personal information provided by the Petitioner and Group Members to the Respondent, it is vital that Users be provided with a high degree of control over the release of said information to third parties. The compromise of a User's personal information may leave the User open to such detrimental effects as, inter alta, identity theft, fraud, harassment, embarrassment, or threats to their personal and financial security.

10.    Facebook.com originally provided Users such as those in the position of the Petitioner with simple "one-click" methods by which Users could keep their information private. Prior to (…) recent privacy policy revisions enacted by the Respondent on or about November 9, 2009 and on or about December 9, 2009 and on or about January 20, 2010, the only categories of personal information made publicly available by Facebook.com were:

         i.           a User's name; and

         ii.          networks the User belonged to.

11.    On February 4, 2009, without proper communication to or agreement by its Users, Facebook revised its Terms of Service, asserting broad, permanent, and retroactive intentions to reveal User's information, even as to Users who deleted their Facebook.com accounts. The Respondent stated it could make public a User's "name, likeness and image for any purpose, including commercial and advertising." Having met with numerous objection by Users and threatened action by U.S. federal government regulators, Facebook withdrew the proposed changes and replaced them with changes announced variously on or about April 24, 2009, on or about November 19, 2009 and on or about December 9, 2009.

12.    These changes announced variously on or about April 24, 2009, on or about November 19, 2009 and on or about December 9, 2009, and implemented by Facebook on or about said dates made the following categories or personal data "publicly available information":

         i.           Users' names;

         ii.          profile photos;

         iii.          Friend Lists;

iv.         pages Users are fans of, including controversial political causes, organizations, individuals, and products they support;

vi.         their geographic regions; and

vii.        networks they belong to.

13.    Said changes in making previously protected personal data "publicly available information" were made without proper and informed consent and authorization of Users, without proper or any consideration, in breach of Facebook's contractual obligations to Users to keep the Users' personal information private, and amounted to the misappropriation (…) of Users' personal information for the benefit of Facebook. Facebook intentionally or negligently misrepresented these changes as giving Users greater control over the release of their personal information and enhancing the privacy of its' Users, whereas said changes decreased Users' control over their personal information.

14.    The Respondent accordingly has made and continues to make public and otherwise shares, uses, and disseminates the personal information of its Users to third parties for commercial purposes or economic benefit.

15.    Without limiting the generality of the foregoing, at the time of the changes to its privacy policy as referred to in the paragraphs above, Facebook set the default privacy setting for certain types of information Users post on Facebook to "Everyone". Facebook allow the "publicly available information" set to "Everyone" to be: "accessed by everyone on the Internet (including people not logged into Facebook);" made subject to "indexing by third party search engines;" "associated with you outside of Facebook (such as when you visit other sites on the internet);" and "imported and exported by us and others without privacy limitations."

16.    At the time of the privacy policy changes, Facebook "pre-clicked" certain options which diminish the privacy of the User, a method known in the Internet and marketing industries as a "negative option." Accordingly many Users such as those in the position of the Petitioner had their information made publicly available even if they had previously selected that this information not to be made publicly available.

17.    Not only do the revised privacy settings result in the disclosure of the aforementioned personal information, impacting privacy directly, but the revelation of this data violates the privacy of Users and allows the unauthorized revelation of Users' personal and private information to third parties, and results in consequential damages and injury to the Users.

18.    The tools provided by Facebook to the Petitioner and Users in the position of the Petitioner are materially misleading and calculated to result in unauthorized breaches of Users' privacy and (…) misappropriation of their personal information, including but not limited to the breach of Personal Information Protection and Electronic Documents Act, S.C., 2000, c. 5. (hereinafter "PIPEDA") (…).

19.    Facebook intentionally or negligently designs its privacy policies in such a way as to mislead Users into pulling their personal information and privacy at further risk. Such design and dissemination constitutes a material misrepresentation of the effects of Facebook.com's privacy settings in such fashion to increase the damage to Users. The default privacy settings are all set at such fashion as to expose Users personal and private information to unauthorized third party access and appropriation.

20.    As a result, the privacy setting procedures are intentionally, or in the alternative negligently, designed such that the Petitioner and Group Members are misled on a Group wide basis into allowing Facebook to have their personal and private information easily accessed for commercial or other use. This process further exposes the Petitioner and Group Members to, inter alia, identity theft, fraud, date mining, harassment, embarrassment, intrusion, and all types of unauthorized use.

21.    The control mechanisms as provided by Facebook are materially deceptive, confusing, and ineffective, and permit third party application developers and websites to access more information than Facebook previously authorized.»

[7]           St-Arnaud alleges that Facebook violated the User's privacy and misappropriated their personal information through its application programming interface.

[8]           Under the revised policy setting, Facebook has eliminated the one-click option and substituted it with multiple check boxes that the Users must pre-select if they wish to refrain from sharing the corresponding information.

[9]           It is useful to quote the following paragraphs of the Amended Motion to Authorize the bringing of a Class Action and to Ascribe the status of representative:[2]

« 27.    The Facebook altered privacy rules do not properly or reasonably protect Users' personal information or present Users with realistic options to restrict third party access to all User information through the Facebook Platform. To block the more than 350,000 applications form accessing their information, Users would have to perform the steps described above (…) for every single application.

28.    The controls offered to the Petitioner and Group Members by the Respondent require Users to search the Application Directory and visit the application's "about" page. Even assuming a User has a limited number of applications, locating and correctly setting the myriad privacy settings of each such application is a daunting and formidable task.

[…]

33.    Facebook profits form their aforementioned misappropriation (…) of Users' personal information, and violation of Users' privacy. Such conduct generates revenue primarily through various types of advertisements which are targeted to Users based on their profiles and information. The data collected from its Users is the key commercial asset Facebook employs to sell advertising and drive traffic to the Facebook.com website.»

Submissions of the parties

a)         Jurisdiction of the Superior Court of Quebec

1-         The Respondent Facebook

[10]        All allegations made in the Amended Motion for Authorization arise out of St-Arnaud's use of the Facebook website.

[11]        The Users of the website agreed to be continually bound by Facebook's Terms of Use as existed in January 2007, as modified and as existed when the Motion for Authorization was filed.

[12]        A User could only gain initial access to the website by clicking on an icon labelled "sign-up" where immediately below it was written:[3]

« By clicking Sign Up, you are indicating that you have read and agree to the Terms of Use and Privacy Policy.»

[13]        As a result, Users agreed to remove the legal jurisdiction from the Superior Court of Quebec to the jurisdiction of the courts in Santa Clara County, California as provided by section 15.1 of the Terms:[4]

« 15.    Disputes

1.   You will resolve any claim, cause of Action or dispute ("claim") you have with us arising out of or relating to this Statement or Facebbok exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.»              

[14]        Facebook has no link to Quebec, other than the fact that the website is accessible through Internet Service Providers («ISP») of this province.

[15]        Any acts or omissions that form the basis of St-Arnaud's claim could only have been undertaken by Facebook in the state of California, the site of its corporate headquarters.

[16]        The Group Members did not suffer any injury in Quebec.

[17]        The Superior Court of Quebec is forum non conveniens.

[18]        Article 3149 Q.C.C. does not apply to the present case.

[19]        Facebook does not have a consumer relationship with its Users.

[20]        Even if the Group Members are considered to be consumers, the Superior Court of Quebec cannot assume jurisdiction over a Class Action unless it has jurisdiction over the claim of every single Group Member.

[21]        The proposed Group includes corporations: the Superior Court of Quebec does not have jurisdiction over the corporate Group Members.

[22]        The Superior Court of Quebec must decline jurisdiction through Article 3135 C.C.Q.

2.         The Petitioner St-Arnaud

[23]        The facts of the Motion for Authorization must be read as established.

[24]        There is no proof that the Users have agreed with the changes to the Terms of Use.

[25]        The default clause is a contract of adhesion under article 1379 C.C.Q. It is an abusive clause (Article 1437 C.C.Q.).

[26]        The parties are linked by a consumer contract (Article 1384 C.C.Q.).

[27]        The Superior Court of Quebec has jurisdiction to hear an action involving a consumer contract (Article 3149 C.C.Q.).

[28]        St-Arnaud agrees to limit the Group Members to physical persons or consumers.

Issues in dispute

[29]        The questions in litigation are as follows:

1-        What is the jurisdiction of the Superior Court of Quebec according to the jurisdiction and venue clause?

2-        Does Article 3149 C.C.Q. apply to the present dispute?

3-        What is the personal/territorial jurisdiction of the Superior Court of Quebec over the present dispute?

4-        Does the forum non conveniens apply?

Analysis and Decision

1-         What is the jurisdiction of the Superior Court of Quebec according to the jurisdiction and venue clause?

[30]        Facebook states that Quebec has no jurisdiction because St-Arnaud agreed to the jurisdiction clause. Therefore, the present suit should have been filed in California.

[31]        The Superior Court of Quebec must decline jurisdiction according to article 3148 C.C.Q. in fine:

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where

[…]

 

However, a Québec authority has no jurisdiction where the parties, by agreement, have chosen to submit all existing or future disputes between themselves relating to a specified legal relationship to a foreign authority or to an arbitrator, unless the defendant submits to the jurisdiction of the Québec authority.

[32]        St-Arnaud alleges that he never agreed to the jurisdiction clause.

[33]        On a declinatory motion, the Court must consider the allegations as recognized.[5]

[34]        However, the Court must consider all the facts as set out in the case.

[35]        It is obvious that all Users agreed to be continually bound by Facebook's Terms of Use.

[36]        St-Arnaud could only gain initial access to the website by clicking on an icon labelled "Sign Up" where immediately below it was clearly written.

[37]        By clicking Sign Up, Users indicate that they have read and agreed to the Terms of Use and Privacy Policy.[6]

[38]        As can be further seen from Exhibit R-2, the words "Terms of Use" are highlighted in blue and the user can access the full Terms by clicking on them.

[39]        At any time, a User may click the blue "Terms" icon at the bottom right of the page to reach the "Terms".

[40]        Once St-Arnaud joined the website, every time he wanted to log into it, he would need to either remain logged in or access the website login page, which always includes a link to the Terms.[7]

[41]        Moreover, every time St-Arnaud would access the website, he would find a link to the Terms at the bottom of every page available on Facebook, including his own personal page.[8]

[42]        At section 15.1, the Terms provide (the "Jurisdiction Clause"):[9]

« You will resolve any claim, cause of action or dispute ("claim") you have with us arising out of or relating to this Statement or Facebook exclusively in a state or federal court located in Santa Clara County. The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims.»

 

 

 

[43]        The Jurisdiction Clause unequivocally signals the agreement of St-Arnaud - as well as every Member of the Group he defines at paragraph 1 of the Motion for Authorization - to provide the courts in Santa Clara County with exclusive jurisdiction over the present dispute.

[44]        The Jurisdiction Clause is binding upon St-Arnaud and the Members of the Group. It has the effect of removing jurisdiction from the Superior Court of Quebec over the dispute presented in the Motion for Authorization.

[45]        This jurisdiction clause is not an external clause as provided for by of the Civil Code of Quebec:

1435. An external clause referred to in a contract is binding on the parties.

In a consumer contract or a contract of adhesion, however, an external clause is null if, at the time of formation of the contract, it was not expressly brought to the attention of the consumer or adhering party, unless the other party proves that the consumer or adhering party otherwise knew of it.

[46]        The Supreme Court of Canada's judgment in Dell Computer Corp. v. Union des consommateurs[10] dealt with a Web page containing many links:

« 97       A Web page may contain many links, each of which leads in turn to a new Web page that may itself contain many more links, and so on.  Obviously, it cannot be argued that all these different but interlinked pages constitute a single document, or that the entire Web, as it scrolls down a user’s screen, is just one document.  However, it is difficult to accept that the need for a single command by the user would be sufficient for a finding that the provision governing external clauses is applicable.  Such an interpretation would be inconsistent with the reality of the Internet environment, where no real distinction is made between scrolling through a document and using a hyperlink.  Analogously to paper documents, some Web documents contain several pages that can be accessed only by means of hyperlinks, whereas others can be viewed by scrolling down them on the computer’s screen.  There is no reason to favour one configuration over the other.  To determine whether clauses on the Internet are external clauses, therefore, it is necessary to consider another rule that, although not expressly mentioned in art. 1435 C.C.Q., is implied by it.

98      Thus, a number of authors have stressed that, for an external clause to be binding on the parties, it must be reasonably accessible:  Lluelles and Moore, at p. 753; Baudouin et Jobin:  Les obligations, at p. 268.  A contracting party cannot argue that a contract clause is binding unless the other party had a reasonable opportunity to read it.  For this, the other party must have had access to it.  Where a contract has been negotiated and all its terms and conditions are set out in the contract itself, the problem of accessibility does not arise, since all the clauses are part of a single document.  Where the contract refers to an external document, however, accessibility is an implied precondition for setting up the clause against the other party.

99     The implied precondition of accessibility is a useful tool for the analysis of an electronic document.  Thus, a clause that requires operations of such complexity that its text is not reasonably accessible cannot be regarded as an integral part of the contract.  Likewise, a clause contained in a document on the Internet to which a contract on the Internet refers, but for which no hyperlink is provided, will be an external clause.  Access to the clause in electronic format should be no more difficult than access to its equivalent on paper.  This proposition flows both from the interpretation of art. 1435 C.C.Q. and from the principle of functional equivalence that underlies the Act to establish a legal framework for information technology.

100   The evidence in the record shows that the consumer could access the page of Dell’s Web site containing the arbitration clause directly by clicking on the highlighted hyperlink entitled “Terms and Conditions of Sale”.  This link reappeared on every page the consumer accessed.  When the consumer clicked on the link, a page containing the terms and conditions of sale, including the arbitration clause, appeared on the screen.  From this point of view, the clause was no more difficult for the consumer to access than would have been the case had he or she been given a paper copy of the entire contract on which the terms and conditions of sale appeared on the back of the first page.

101   In my view, the consumer’s access to the arbitration clause was not impeded by the configuration of the clause; to read it, he or she needed only to click once on the hyperlink to the terms and conditions of sale.  The clause is therefore not an external one within the meaning of the Civil Code of Québec.»

[47]        Even Justice Bastarache, the dissenting judge in this case, concluded that the hyperlink to the Terms and Conditions was evident to the User:

« 238   It is true, as noted by the Court of Appeal, that the hyperlink to the Terms and Conditions of Sale was in smaller print, located at the bottom of the Configurator Page.  The evidence was that Dell places a hyperlink to its Terms and Conditions of Sale at the bottom of every shopping page on its site.  This is consistent with industry standards.  In fact, this is the placement that was at the time recommended by Industry Canada’s Office of Consumer Affairs (Your Internet Business: Earning Consumer Trust — A guide to consumer protection for on-line merchants (1999), at p. 10).  It is proper to assume, then, that consumers that were engaging in e-commerce at the time would have expected to find a company’s terms and conditions at the bottom of the Web page.  In light of this, we conclude that the hyperlink to the Terms and Conditions was evident to Dumoulin.  Furthermore, the Configurator Page contained a notice that the sale was subject to the Terms and Conditions of Sale, available by hyperlink, thus bringing the Terms and Conditions expressly to Dumoulin’s attention.»

[48]        It is therefore obvious that St-Arnaud and all Users are bound by the changes.

[49]        Therefore, according to article 3148 C.C.Q., the Superior Court of Quebec must decline its jurisdiction.

2-         Does Article 3149 C.C.Q. apply to the present dispute?

[50]        To answer this question, we must refer to the following articles of the Civil Code of Quebec:

1379. A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.

Any contract that is not a contract of adhesion is a contract by mutual agreement.

1384. A consumer contract is a contract whose field of application is delimited by legislation respecting consumer protection whereby one of the parties, being a natural person, the consumer, acquires, leases, borrows or obtains in any other manner, for personal, family or domestic purposes, property or services from the other party, who offers such property and services as part of an enterprise which he carries on.

3149. A Québec authority also has jurisdiction to hear an action involving a consumer contract or a contract of employment if the consumer or worker has his domicile or residence in Québec; the waiver of such jurisdiction by the consumer or worker may not be set up against him.

[51]        Although, there exists an adhesion contract, Facebook does not have a consumer relationship with its Users.

[52]        Access to the Facebook website is completely free.[11]

[53]        Therefore, there exists no consumer contract when joining and accessing the website, because it's always free.

[54]        A consumer contract is premised on payment and consideration. It must be an onerous contract as written by the Author Nicole L'Heureux.[12]

«          Le mot «service» n'est pas défini dans la L.p.c., on doit lui donner son sens courant d'exercice d'une activité, d'un travail, acheté ou loué pour le bénéfice d'une personne, ou d'une prestation fournie en relation avec la vente ou la réparation d'un bien. Le service se classe dans la catégorie des biens meubles incorporels. On le définit en effet comme «toute prestation qui peut être fournie à titre onéreux mais qui n'est pas un bien corporel. (…)»

[55]        Users pay Facebook nothing at all. In joining and accessing the website, Users:

« (a)     do not pay Facebook;

(b)     do not undertake to pay Facebook at a later date;

(c)     do not undertake to remain Users for any period of time;

(d)     do not undertake to post anything on the Website;

(e)     do not undertake to encourage friends or family to join the Website; and

(f)      do not undertake to promote the Website in any way.»

[56]        Article 3149 C.C.Q. is clearly not applicable to the present case given that we are not dealing with a consumer contract.

3-         What is the personal/territorial jurisdiction of the Superior Court of Quebec over the present dispute?

[57]        Notwithstanding the answers given to the first two questions, the Court will still answer this question.

[58]        Facebook states that the Superior Court of Quebec does not have jurisdiction given article 3148 C.C.Q.:

3148. In personal actions of a patrimonial nature, a Québec authority has jurisdiction where

(1) the defendant has his domicile or his residence in Québec;

(2) the defendant is a legal person, is not domiciled in Québec but has an establishment in Québec, and the dispute relates to its activities in Québec;

(3) a fault was committed in Québec, damage was suffered in Québec, an injurious act occurred in Québec or one of the obligations arising from a contract was to be performed in Québec;

(4) the parties have by agreement submitted to it all existing or future disputes between themselves arising out of a specified legal relationship;

(5) the defendant submits to its jurisdiction.

[59]        With respect to paragraph 3 of article 3148 C.C.Q., the grounds that a damage was suffered in Quebec would have given jurisdiction to the Superior Court of Quebec.

4-         Does the forum non conveniens apply?

[60]        Article 3135 C.C.Q. provides that a Quebec Court may decline jurisdiction in favour of a foreign authority:

3135. Even though a Québec authority has jurisdiction to hear a dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that the authorities of another country are in a better position to decide.

[61]        In Spar Aerospace Ltd. v. American Mobile Satellite Corp.,[13] Justice LeBel cited with approval the ten factors set out by this Court in Lexus Maritime Inc. v. Oppenheim Forfait GmbH,[14] none of which is individually determinative:

« 20.1        the parties' residence, that of witnesses and experts;

20.2        the location of the material evidence;

20.3        the place where the contract was negotiated and executed;

20.4        the existence of proceedings pending between the parties in another jurisdiction;

20.5        the location of the Defendant's assets;

20.6        the applicable law;

20.7        advantages conferred upon a Plaintiff by its choice of forum, if any;

20.8        the interest of justice;

20.9        the interest of the parties;

20.10      the need to have the judgment recognized in another jurisdiction.»

[62]        Recently, Justice Guy Cournoyer stated the following in Acasti Pharma Inc. v. US Nutraceuticals, I.I.c. (Valensa International) on forum non conveniens:[15]

« [136]    At the outset, given the clear forum election by the parties, it is even doubtful whether the Spar analysis should be undertaken. 

[137]        One has also to remember "the two key parts of art. 3135 C.C.Q. include its exceptional nature and the requirement that another country be in a better position to decide".

[138]        Further, where "there is no single forum that is clearly the most convenient or appropriate for the trial of an action", as in this case, it would seem that "in such cases there is a presumption in favour of the forum selected by the plaintiff, which wins by default if there is no clearly preferable alternative".

[139]        Finally, Lebel J. underlined the exceptional nature of the forum non conveniens doctrine in the following terms:

I emphasize the exceptional quality of the forum non conveniens doctrine. As the authors J. A. Talpis and S. L. Kath point out in their article “The Exceptional as Commonplace in Québec Forum Non Conveniens Law:  Cambior, a Case in Point” (2000), 34 R.J.T. 761, by ignoring the “exceptionality” requirement, courts may unwittingly create uncertainty and inefficiency in cases involving private international law issues, resulting in greater costs for the parties.  In my opinion, such uncertainty could seriously compromise the principles of comity, order and fairness, the very principles the rules of private international law are set out to promote. 

[140]        One would think that these principles apply with even greater force in the presence of broad forum election clause.

[141]        This having been said, a detailed Spar analysis also the Plaintiffs.

[142]        At best, for Valensa’s, it is possible to conclude that the two jurisdictions are equally capable to decide the matter. Indeed, the study of most criteria reveals advantages and disadvantages to the respective parties and therefore results in a draw.

[143]     The only criteria clearly favouring the courts of Florida would appear to be the need for a judgment, on some aspects, to be recognized in another jurisdiction.  But this criterion is not paramount and cannot overcome the presumption that Valensa will respect the Court’s judgment.

[144]     Thus, in the end, the Court must be give full force to the forum election clause.

[145]        Despite the required US patent filing, Valensa nevertheless clearly accepted and submitted to Québec courts jurisdiction.»

[63]        Therefore, Justice Cournoyer denied the motion for declinatory exception because of the forum election clause in favour of the Quebec Court's jurisdiction.

[64]        This Court concludes that California and Quebec are equally capable to judge the present case.

[65]        The need for a Quebec judgment that is recognized in a Santa Clara California Court favours California.

[66]        Despite the small amount claimed by St-Arnaud, he, nevertheless, accepted and submitted to the Santa Clara Court's jurisdiction.

[67]        The Court concludes that the forum non conveniens does not apply.

FOR THESE REASONS, THE COURT:

GRANTS the De Bene Esse Amended Motion for Declinatory Exception;

DISMISSES the Amended motion to authorize the bringing of a Class Action and to Ascribe the status of representative filed by the Petitioner Patrice St-Arnaud;

THE WHOLE WITH COSTS.

		__________________________________ MICHEL DÉZIEL, J.S.C.
Me David Assor
IMERCHANT LAW GROUP LLP
Attorney for Petitioner
Me David Grossman & Me Carine Bouzaglou
OSLER, HOSKIN & HARCOURT
Attorney for Respondent
Date of hearing:	February 21st, 2011