Supreme Court

Conflict of Laws


Choice of law

Privacy Act lacking clear language needed to override forum selection clause

Defendant was American corporation headquartered in California operating social networking site which generated most of its revenues from advertising. Plaintiff was resident of British Columbia who was member of social networking site since 2007. As part of registration process, plaintiff had agreed to defendant’s terms of use, which included forum selection and choice of law clause requiring that disputes be resolved in California according to California law. Defendant created new advertising product which used name and picture of site members to advertise companies and products to other members of site and externally. Plaintiff brought action against defendant when she noticed that her name and profile picture had been used in advertising product, alleging that her name and likeness was used without consent for purposes of advertising in contravention of s. 3(2) of Privacy Act. Plaintiff also sought certification of her action as class proceeding under Class Proceedings Act. Defendant brought preliminary motion to stay plaintiff’s action on basis of forum selection clause. Chambers judge refused to stay action, finding that Privacy Act overrode clause and that it provides strong reasons not to enforce it. Court of Appeal reversed this decision, finding that clause was enforceable and that plaintiff failed to show strong cause not to enforce it. Plaintiff appealed. Appeal allowed. Forum non conveniens test adopted in Court Jurisdiction and Proceedings Transfer Act was not intended to replace common law test for forum selection clauses. Case was to be resolved under strong cause analysis, and analysis was to take into account different considerations relevant to consumer context. Section 4 of Privacy Act lacked clear language needed to override forum selection clauses. Plaintiff met burden of establishing that there was strong cause not to enforce forum selection clause. There was gross inequality of bargaining factors between parties and case involved plaintiff’s statutory privacy right, which had quasi-constitutional status. Public policy concerned weighed heavily in favour of strong cause, as did secondary factors of interests of justice and comparitive convenience and expense of litigating in alternate forum. Forum selection clause was unenforceable and chambers judge’s order dismissing defendant’s application to have British Columbia Supreme Court decline jurisdiction was restored.

Douez v. Facebook, Inc. (2017), 2017 CarswellBC 1663, 2017 CarswellBC 1664, 2017 SCC 33, 2017 CSC 33, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., and Côté J. (S.C.C.); reversed (2015), 2015 CarswellBC 1671, 2015 BCCA 279, Bauman C.J.B.C., Lowry J.A., and Goepel J.A. (B.C. C.A.).

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