If this frivolous case is found in favour of the Quebec seller ebay will have only one option.
The simple solution would be to not allow any sellers from Quebec.
The overall impact to ebay would be very small.
if that was to happen then they would go back to court saying ebay is discriminating against them 
and here we go again
It's more likely eBay pulled the listing because of fraudulent bidding. Either the bidders who pushed it up so high were deadbeats with no intention of paying or there was suspicions of shill bidding going on.
Ruling that eBay users can launch a civil suit against eBay in Quebec instead of California is one thing, actually filing a civil suit and proving your case is an entirely different thing. eBay can just hire local legal representation and turn it into a very expensive proposition for the plaintiff with a slightly increased cost for eBay. In reality eBay can probably fight a suit in Quebec for a lot less than in California, Canadian lawyers work for chump change compared to their US counterparts.
I've been reading this discussion with great interest, and thought I'd jump in to perhaps clarify some details, correct some misinformation and debunk a few myths. As many here may know, I was a paralegal for over 20 years, in research, litigation and corporate/commercial at different times, so I thought I'd review the subject decisions (I'm fluent in French) and pass on some notes.
- First, the subject at hand isn't a matter of "common law" v. "Quebec civil law". There's no connection here. The Quebec Civil Code is an actual codified legal system. English common law is really just a collection of underlying legal doctrines that may help to bolster a case, but usually aren't decisive. Most modern court decisions in English system jurisdictions are based primarily and substantially on case law (i.e. precedents). Quebec courts also rely on case law, but lean heavily on the codified precepts. This is the biggest difference between Napoleonic code (which is essentially where Quebec derives its codified system from) and English law.
- That being said, there are many similarities in the ways court proceedings are followed in Quebec and the rest of Canada
- There is a higher court for Quebec Court of Appeal cases -- the Supreme Court of Canada -- and this is the kind of case that could get elevated
- The matter we're discussing, (Moko v. eBay), is an interlocutory application, on appeal by eBay from the decision on an application in the lower court. It isn't a "case" as the OP pointed out, but an application solely on a point of law, in this instance, the matter of jurisdiction and whether Moko et al can proceed with their application to have the matter heard in the Quebec Court of Appeal. They were granted this permission in the Court of Appeal decision.
- The next step will be submission of application briefs (i.e. written evidence, case law and -- at least in English Canada - affidavit material). But this is not a "case" in the sense most lay people imagine it, with live witness testimony, etc., although it's possible for a Court to order such testimony for an application hearing. It's essentially a battle of the lawyers in front of the tribunal, who will then make a decision based on the evidence presented in the briefs.
- I've read the reported decision from the lower court on this matter, and I can say that the tone of the decision was very emphatic, even scathing, that: (a) Moko was entirely under the protection of Quebec law as a consumer, on the basis that he was using eBay's computer as a consumer of services; (b) that eBay was in effect duping or coercing unsuspecting users into an agreement that was not a negotiated contract between "equals"; and (c) Ebay's insistence upon Santa Clara County, California as the sole jurisdiction was legally a nullity. This is what the Court said in the original decision on the question:
En fait, cette élection de for semble avoir été insérée pour prévenir, annuler et décourager, à toutes fins utiles, quelque recours contre eBay, même si la défenderesse ici est une compagnie canadienne. (« In fact, this choice of forum [California] seems to have been inserted to prevent, cancel out and discourage, by all practical means, any recourse at all against eBay, even if the defendant, as here, is a Canadian company.” [referring to eBay.ca].) - My translation
And further:
Et le tribunal croit pouvoir aller plus loin en qualifiant l'élection d'un for californien comme une disposition excessive et déraisonnable, abusive dans les circonstances, ce qui lui permet de considérer cette « élection » imposée à l'internaute comme nulle de nullité absolue. (art. 1437 et 1438 C.c.Q.) -- (“And the tribunal believes it can go further in qualifying the choice of a California forum as an excessive and unreasonable arrangement, abusive under the circumstances, which permits this “choice” imposed upon its internet users to be null and void absolutely [under Quebec law])
And rather sarcastically, referring to eBay’s defence, the tribunal added:
On a prétendu que la recherche d'un profit, tel qu'avoué par les demandeurs, était à elle seule suffisante pour que l'utilisateur perde son statut de « consommateur » en vertu de la Loi les protégeant ici. (« They claim that endeavouring to make a profit, as admitted by the Plaintiffs [i.e. Moko] was in itself sufficient for the user to lose his status as “consumer” under the law which protects him here [i.e. Quebec law].
I have to say you don’t often see such a harsh and unequivocal tone in most legal decisions. No wonder the ruling was upheld by the Quebec Court of Appeal. Obviously all three tribunal members were in agreement.
In terms of what the favourable appeal decision means (again, this is only a decision on a point of law, i.e. permission to present evidence on the question), there is a good possibility – as often happens – that a matter which is of interest to a large sector of the public may attract one or more intervenors, who generally have a big organization and deep pockets behind them to enable them to fight to the bitter end.
My area of expertise was in B.C. and Alberta law, and to some extent Ontario, so I don’t know whether intervenor status can be granted in Quebec, but if so – watch the fireworks!
This is quite different from a “class action” suit. In effect, if allowed to join in an application or action, the intervenor can present evidence on its own behalf, independent of the original Applicant or Plaintiff, although normally intervenors have a strong interest or tie to the issues in a case and their evidence converges with the other party's. Here, I can imagine a large consumer advocacy group requesting intervenor status, especially now that CBC has made the issue news.
Lastly, I should add that the decision in the appeal matter included an order that the lower court proceedings be stayed, so presumably the actual application will be heard in the Quebec Court of Appeal. The date set by the Court for the application was September 27, 2013, for a 90-minute hearing, and each party was ordered to submit a 20-page brief.
I tried to do a cross-cite to find a report on that hearing, but it may not yet have been published. At any rate, now this has got my interest, I’ll check once in a while and see if a case pops up. It is possible the hearing got adjourned to a later date, which happens in so many instances.
By the way, in the original lower Court decision, it’s stated that the bidding got up to $50,000 US, so I’m not sure where the higher figure came from – CBC reporter miscalculating?
Also it is recorded that Moko had managed to get, but not yet pay for, the shoes, when he listed them, but the Court didn’t record whether this was a consignment, or drop-ship or other arrangement, so it’s anybody’s guess. Here’s what was recorded in the decision:
[Moko et al] ont réussi à s'en procurer une paire qu'ils ont mis en vente sur le réseau de la défenderesse le 21 février 2012, même s'ils n'avaient pas encore acheté les chaussures à cette date.
I expect full details would have come out in the actual application on Sept. 27 (or whenever it gets heard).
This will be extremely interesting to follow up, especially if an intervenor gets involved, which could propel the whole thing up to the Supreme Court of Canada and set a clear precedent for eBay. I’ll try to keep this case on my radar and report back. It could be months before it goes anywhere though.
I guess you can tell I've done this sort of thing for a while (not any more, thank goodness, now I can do it as a hobby). 
" Having a jurisdiction-specific user agreement would be a huge win for the consumer, which is why I expect eBay is so actively defending this case. "
Win?
I am not so sure. Let's think about it.
Currently, eBay.ca does not really exist. When a seller purchases services from eBay.ca or eBay.com, the service is performed outside Canada - specifically by those servers in California. This lack of actual residence in Canada allows eBay to provide its services without charging Canadian sellers GST or HST.
Should a court decision change that and force eBay to actually "reside and provide a service" in Canada, could it potentially result in eBay having to charge GST/HST on the taxable services it provides?
Actual ownership of eBay.ca in Switzerland (where fee invoices come from) is irrelevant to that question. Taxes are not based on where the owner is located but where the service is provided.
@pierrelebel wrote:" Having a jurisdiction-specific user agreement would be a huge win for the consumer, which is why I expect eBay is so actively defending this case. "
Win?
I am not so sure. Let's think about it.
Currently, eBay.ca does not really exist. When a seller purchases services from eBay.ca or eBay.com, the service is performed outside Canada - specifically by those servers in California. This lack of actual residence in Canada allows eBay to provide its services without charging Canadian sellers GST or HST.
Pierre, apparently the Quebec court was under the impression (presumably from evidence given by the lawyer for eBay) that Moko was using "eBay's computer at Montreal". Here is the applicable text from the decision (the court is referring to the basis on which it has jurisdiction in Moko's claim), although I have to admit it's not crystal clear what is meant by "leur" ordinateur. I read "their computer" as meaning eBay's. I'll translate this below for those who are interested:
Ils ont donc introduit un recours devant la Cour supérieure du Québec, district de Montréal dont ils sont résidents, malgré que la défenderesse ait sa place d'affaires à Toronto. Sans le dire, ils semblent tenir pour acquis qu'en faisant appel aux services de vente/achat de eBay en utilisant leur ordinateur ici à Montréal, ce motif suffirait à donner juridiction au tribunal.
[Translation: "They (Moko et al) accordingly launched a claim before the Superior Court of Quebec, Montreal district, where they are residents, despite the fact that the Defendant (eBay) has its place of business in Toronto. Needless to say, it seems clear that in making use of eBay's selling/buying services by using their computer here in Montreal, this factor would be sufficient to give the tribunal jurisdiction."]
Now I do agree with you that paying HST/GST if eBay were a Canadian company would not be a happy development for most eBay users, particularly sellers. But having the matter of jurisdiction taken out of eBay's control might be a bigger advantage in the long run. Consider this -- there's nothing like the threat of a successful lawsuit to deter lawsuits and encourage corporations to become better corporate citizens.
In fact, deterrence is exactly what eBay has done in stipulating Santa Clara, CA as the sole competent jurisdiction -- they've stacked the deck (as the Quebec court stated) to insure themselves against lawsuits. The question of whether legal opinion in Quebec has any relevance outside that province aside, as the tribunal expressed, it's probably illegal, and certainly abusive, for eBay to be imposing jurisdiction on unwitting and unequal parties to its contract.
So no, I still think it would be a good day for consumers of all internet services were this case to go further. I'd happily pay the GST on my fees and consider it a consumer-support tax.
"leur ordinateur ici à Montréal"
I think "leur" (their in English) refers to the bother's computer, not eBay's.
@pierrelebel wrote:"leur ordinateur ici à Montréal"
I think "leur" (their in English) refers to the bother's computer, not eBay's.
Well, the details of the matter were sketchy in these two decisions because these were applications on a point of law, not a hearing on the facts. If the hearing does take place on the substance of the claim, I'm sure the issue of whose computer was being used for what will have to come out.
You no doubt know more about where eBay's computers actually are than I do...
I have seen them
Back in January 2002 I visited what they refer to as the "War Room" (control room) in San Jose. Very impressive and eBay was only a small fraction then of what it is today (14,000,000 listings then; hundreds of millions now).
The fact the computers are located in the USA, not in Canada, is what allows eBay to not collect and remit GST/HST as the "service" of listing items for sale is not provided within Canada.
