2013 QCCQ 6208, 2013 QCCQ 6208

Ye c. Forex Capital Markets, l.l.c. 2013 QCCQ 6208 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL TOWN OF LONGUEUIL Civil Division No: 505-32-029919-124 DATE: June 19, 2013 ______________________________________________________________________ BY THE HONOURABLE CLAUDE LAPORTE, J.C.Q. ______________________________________________________________________ QIANG YE Plaintiff v.

FOREX CAPITAL MARKETS LLC Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from defendant Forex Capital Markets LLC ( Forex ) an amount of $ 6,999.00 in damages. [ 2 ] He contends that Forex withheld necessary legal information when he opened a trade account with it. [ 3 ] He further adds that when he discovered this, he requested that he be refunded but that his request was denied. [ 4 ] Forex alleges that Ye contractually agreed to "submit all dispute to arbitration before the National Futures Association (NFA)" and, thus, that the Quebec Court has no jurisdiction to entertain the present matter. [ 5 ] In a May 1, 2013 affidavit, Joshua Slomich, assistant in-house counsel at Forex, claims that the Plaintiff, when he opened up his trading account through the www.fxcm.com website, agreed to be bound by the October 17, 2008 client agreement version. [ 6 ] Moreover, Forex contends that the Plaintiff specifically agreed to be bound by the arbitration agreement (contained in the client agreement) which reads as follows : «BY AGREEING TO THIS ARBITRATION PROVISION, TRADER MAY BE WAIVING CERTAIN RIGHTS, INCLUDING THE RIGHT TO A JURY TRIAL.

TRADER NEED NOT AGREE TO THIS ARBITRATION PROVISION IN ORDER TO OPEN AN ACCOUNT WITH FXCM. Trader agrees and, by opening one or more accounts for Trader, FXCM also agrees, that any and all disputes, controversies, or claims arising out of this Client Agreement, or the relationships or activities contemplated thereby, including whether or not any such dispute, controversy, or claim is arbitrable, shall be resolved by an Arbitration Panel selected by the National Futures Association ("NFA"), pursuant to the NFA's Code of Arbitration.

The award of the NFA Arbitrators, or of the majority of them, shall be final, and judgment upon the award may be entered in any court of competent jurisdiction.» [ 7 ] Plaintiff denies having opened his account through the said website.

He claims, rather, that the account was opened in Hong Kong in a chinese online version and that he never answered "yes" to the arbitration link. [ 8 ] He deposited more than 30 000,00 $ in the account. [ 9 ] However, he was later on informed that he could not open the account because he was a resident of the province of Quebec. [ 10 ] Ye alleges that the Defendant knew that he could not open an account but did it nevertheless. Had he known, he adds, that he could not open an account, he would not have done so.

He claims that "all trades should be cancelled". [ 11 ] Ye could not provide the Court with the document he used to open the account with the Defendant. [ 12 ] He claims that he lost almost all of his investment. DECISION

[ 13 ] Forex had the burden of proving that Ye accepted to be bound by the arbitration clause. [ 14 ] Forex did not succeed. [ 15 ] The Plaintiff did not convince the Court that there were mispresentations by Forex when his account was opened. [ 16 ] Even if there had been mispresentations, these were not the cause of Plaintiff's losses over the years. [ 17 ] The Defendant is not accountable for Ye's loss which appears to be the result of his high risk trading. [ 18 ] As Forex has expressed its willingness to reimburse Ye his outstanding balance, judgment will be rendered in Plaintiff's favour in the amount of $ 79.88.

FOR THESE REASONS, THE COURT : [ 19 ] CONDEMNS the Defendant Forex Capital Markets LLC to pay the Plaintiff Qiang Ye the sum of $ 79.88 together with interest at the legal rate of 5% per annum and the additional indemnity as provided for in

article 1619 C.c.Q. calculated from the date of the service of the proceedings. [ 20 ] WITH COSTS ($ 163.00) __________________________________ CLAUDE LAPORTE, J.C.Q.