For those more interested in the Private International Law issues, an excellent post by my colleague Stephen Pitel can be found here:  http://conflictoflaws.net/2017/law-on-jurisdiction-clauses-changes-in-canada/.

 

Sincerely,

 

 

 

Dear Colleagues:

 

The SCC has just released its decision in Douez v Facebook, 2017 SCC 33 where it has found that Facebook’s forum selection clause (for California) is inapplicable to consumers in British Columbia in relation to their “quasi-constitutional” rights under the Privacy Act.  Three of the judges (Karakatsanis, Wagner and Gascon JJ) thought that the clause was enforceable as a matter of common law but unenforceable as a matter of private international law given that the plaintiff had demonstrated a “strong cause” why Canadian courts should not respect the parties’ autonomy (ie, an inequality of bargaining power and the quasi-constitutional nature of privacy).  Abella J thought that the clause was unenforceable at common law for reasons of public policy and unconscionability, even though unconscionability was not apparently argued before the court. The dissenters (McLachlin CJ and Moldaver and Cote JJ) would have enforced the clause on the basis that: (1) there was no common law reason to impeach it and (2) the plaintiff had adduced no evidence to suggest that she would not get a fair hearing in California dealing with the substance of her claim.

 

Congratulations to the many ODGers who were cited by the various judgments (approximately 10 by my count).  For what it's worth, the dissenters seem to have the most compelling judgment given the state of the pleadings, the state of the prior law and the evidence that the plaintiff actually adduced.  Given the right pleadings and evidence, however, I could be persuaded that these clauses are not part of the contractual relationship between the parties since blanket assent to a standard form contract might require some reasonableness in the terms imposed (in order to comply with the rules of contract formation) and for the reasons given by Abella J there are arguments that these are unreasonable in consumer contracts of adhesion.

 

As always, I would be interested in what others thought.

 

Sincerely,    

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)