Deborah Louise Douez Appellant v. Facebook, Inc., 2017 SCC 33

SUPREME COURT OF CANADA Citation: Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751 Appeal heard: November 4, 2016 Judgment rendered: June 23, 2017 Docket: 36616 Between: Deborah Louise Douez Appellant and Facebook, Inc. Respondent - and - Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Information Technology Association of Canada and Interactive Advertising Bureau of Canada Interveners Coram: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ.

Joint Reasons for Judgment: (paras. 1 to 77) Karakatsanis, Wagner and Gascon JJ. Reasons Concurring in the Result: (paras. 78 to 118) Abella J. Joint Dissenting Reasons: (paras. 119 to 177) McLachlin C.J. and Côté J. (Moldaver J. concurring)

Douez v. Facebook, Inc., 2017 SCC 33, [2017] 1 S.C.R. 751 Deborah Louise Douez Appellant v. Facebook, Inc. Respondent and Canadian Civil Liberties Association, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Information Technology Association of Canada and Interactive Advertising Bureau of Canada Interveners Indexed as: Douez v. Facebook, Inc. 2017 SCC 33 File No.: 36616. 2016: November 4; 2017: June 23.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. on appeal from the court of appeal for british columbia Private international law — Courts — Jurisdiction — Choice of forum — Forum selection clauses — Consumer contract of adhesion — Company with head office in California operating online social network — Company’s terms of use containing forum selection clause in favour of California courts — Resident of British Columbia and member of company’s online social network bringing action against company in British Columbia relying on statutory tort pursuant to British Columbia’s Privacy Act — Whether action should be stayed on basis of forum selection clause contained in terms of use — Common law test for forum selection clauses applied in consumer context — Whether analysis of forum selection clauses should be subsumed under forum non conveniens test adopted in s. 11 of the Court Jurisdiction and Proceedings Transfer Act — Privacy Act, R.S.B.C. 1996, c. 373, s. 4 — Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28, s. 11.

Privacy — Courts — Jurisdiction — British Columbia’s Privacy Act providing that despite anything contained in another Act, actions under Privacy Act must be heard and determined by Supreme Court of that province — Statute silent on contractual provisions — Whether Privacy Act overrides forum selection clauses — Privacy Act, R.S.B.C. 1996, c. 373, s. 4 . Facebook, an American corporation headquartered in California, operates one of the world’s leading social networks and generates most of its revenues from advertising. D is a resident of British Columbia and has been a member of Facebook since 2007.

In 2011, Facebook created a new advertising product called “Sponsored Stories ”, which used the name and picture of Facebook members to advertise companies and products to other members. D brought an action in British Columbia against Facebook alleging that it used her name and likeness without consent for the purposes of advertising, in contravention to s. 3(2) of British Columbia’s Privacy Act . D also seeks certification of her action as a class proceeding under the Class Proceedings Act . The proposed class includes all British Columbia residents who had their name or picture used in Sponsored Stories.

The estimated size of the class is 1.8 million people. Under s. 4 of the Privacy Act , actions under the Act must be heard in the British Columbia Supreme Court. However, as part of the registration process, all potential users of Facebook must agree to its terms of use which include a forum selection and choice of law clause requiring that disputes be resolved in California according to California law. Facebook brought a preliminary motion to stay the action on the basis of this forum selection clause. The chambers judge declined to enforce the clause and certified the class action.

The British Columbia Court of Appeal reversed the stay decision of the chambers judge on the basis that Facebook’s forum selection clause was enforceable and that D failed to show strong cause not to enforce it. This rendered the certification issue moot and the court declined to address it. Held (McLachlin C.J., Moldaver and Côté JJ. dissenting): The appeal should be allowed . The forum selection clause is unenforceable. The chambers judge’s order dismissing Facebook’s application to have the Supreme Court of British Columbia decline jurisdiction is restored.

Per Karakatsanis, Wagner and Gascon JJ.: In the absence of legislation to the contrary, the common law test for forum selection clauses established in Z.I. Pompey Industrie v. ECU-Line N.V. , 2003 SCC 27 , [2003] 1 S.C.R. 450 , continues to apply and provides the analytical framework for this case. The forum non conveniens test adopted in the Court Jurisdiction and Proceedings Transfer Act (“ CJPTA ”) was not intended to replace the common law test for forum selection clauses. The analysis of forum selection clauses thus remains separate, despite the enactment of the CJPTA .

Forum selection clauses serve a valuable purpose and are commonly used and regularly enforced. However, forum selection clauses divert public adjudication of matters out of the provinces, and court adjudication in each province is a public good. Because forum selection clauses encroach on the public sphere of adjudication, Canadian courts do not simply enforce them like any other clause. Where no legislation overrides the forum selection clause, the two-step approach set out in Pompey applies to determine whether to enforce a forum selection clause and stay an action brought contrary to it.

At the first step, the party seeking a stay must establish that the

clause is valid, clear and enforceable and that it applies to the cause of action before the court. If this party succeeds, the onus shifts to the plaintiff who must show strong cause why the court should not enforce the forum selection clause and stay the action. At this second step of the test, a court must consider all the circumstances, including the convenience of the parties, fairness between the parties and the interests of justice. Public policy may also be a relevant factor at this step.

The strong cause factors have been interpreted and applied restrictively in the commercial context, but commercial and consumer relationships are very different. Irrespective of the formal validity of the contract, the consumer context may provide strong reasons not to enforce forum selection clauses. Thus, the Pompey strong cause factors should be modified in the consumer context to account for the different considerations relevant to this context.

When considering whether it is reasonable and just to enforce an otherwise binding forum selection clause in a consumer contract, courts should take account of all the circumstances of the particular case, including public policy considerations relating to the gross inequality of bargaining power between the parties and the nature of the rights at stake. As the Court recognized in Pompey , legislative provisions can override forum selection clauses. In the present case, s. 4 of the Privacy Act lacks the clear and specific language that legislatures normally use to override forum selection clauses .

While the legislature intended s. 4 of the Privacy Act to confer jurisdiction to the British Columbia Supreme Court to resolve matters brought under the Act, nothing suggests that it was also intended to override forum selection clauses. With respect to the first step of the Pompey test, the forum selection clause contained in Facebook’s terms of use is enforceable. At the second step of the test, however, D has met her burden of establishing that there is strong cause not to enforce the forum selection clause. A number of different factors, when considered cumulatively , support a finding of strong cause.

Most importantly, the claim involves a consumer contract of adhesion between an individual consumer and a large corporation and a statutory cause of action implicating the quasi-constitutional privacy rights of British Columbians. It is clear from the evidence that there was gross inequality of bargaining power between the parties. Individual consumers in this context are faced with little choice but to accept Facebook’s terms of use.

Additionally, Canadian courts have a greater interest in adjudicating cases impinging on constitutional and quasi-constitutional rights because these rights play an essential role in a free and democratic society and embody key Canadian values. This matter requires an

interpretation of a statutory privacy tort and only a local court’s

interpretation of privacy rights under the Privacy Act will provide clarity and certainty about the scope of the rights to others in the province. Overall, these public policy concerns weigh heavily in favour of strong cause. Two other secondary factors also suggest that the forum selection clause should not be enforced. First, even assuming that a California court could or would apply the Privacy Act , the interests of justice support having the action adjudicated by the British Columbia Supreme Court. The lack of evidence concerning whether a California court would hear D’s claim is not determinative.

The British Columbia Supreme Court, as compared to a California one, is better placed to assess the purpose and intent of the legislation and to decide whether public policy or legislative intent prevents parties from opting out of rights created by the Privacy Act through a choice of law clause in favour of a foreign jurisdiction. Second, the expense and inconvenience of requiring British Columbian individuals to litigate in California, compared to the comparative expense and inconvenience to Facebook, further supports a finding of strong cause.

The chambers judge found it would be more convenient to have Facebook’s books and records made available for inspection in British Columbia than requiring D to travel to California to advance her claim. There is no reason to disturb this finding. Per Abella J.: This is an online consumer contract of adhesion. To become a member of Facebook, a consumer must accept all the terms stipulated in the terms of use, including the forum selection clause . No bargaining, no choice, no adjustments.

The automatic nature of the commitments made with online contracts intensifies the scrutiny for clauses that have the effect of impairing a consumer’s access to potential remedies. The operative test in Pompey for determining whether to enforce a forum selection clause engages two distinct inquiries. The first is into whether the clause is enforceable under contractual doctrines like public policy, duress, fraud, unconscionability or grossly uneven bargaining positions.

If the clause is enforceable, the onus shifts to the consumer to show “strong cause” why the clause should not be enforced because of factors typically considered under the forum non conveniens doctrine. Keeping the two Pompey inquiries distinct means that before the onus shifts, the focus starts where it should, namely on whether the contract or clause itself is enforceable based on basic contractual principles. In this case , the forum selection clause is unenforceable under the first step of the Pompey test applying contractual principles.

The burdens of forum selection clauses on consumers and their ability to access the court system range from added costs, logistical impediments and delays, to deterrent psychological effects. When online consumer contracts of adhesion contain terms that unduly impede the ability of consumers to vindicate their rights in domestic courts, particularly their quasi-constitutional or constitutional rights, public policy concerns outweigh those favouring enforceability of a forum selection clause.

Public policy concerns relating to access to domestic courts are especially significant in this case given that it deals with a fundamental right: privacy.

Section 4 of British Columbia’s Privacy Act states that the particular protections in the Act “must be heard and determined by the Supreme Court” despite anything contained in another Act. This is statutory recognition that privacy rights under the Act are entitled to protection in British Columbia by judges of the British Columbia Supreme Court. It would be contrary to public policy to enforce a forum selection clause in a consumer contract that has the effect of depriving a party of access to a statutorily mandated court.

Tied to the public policy concerns is the “grossly uneven bargaining power” of the parties. Facebook is a multi-national corporation which operates in dozens of countries. D is a private citizen who had no input into the terms of the contract and, in reality, no meaningful choice as to whether to accept them given Facebook’s undisputed indispensability to online conversations. The doctrine of unconscionability also applies in this case to render the forum selection clause unenforceable.

Both elements required for the doctrine of unconscionability to apply — inequality of bargaining power and unfairness — are met in this case. The inequality of bargaining power between Facebook and D in an online contract of adhesion gave Facebook the unilateral ability to require that any legal grievances D had could not be vindicated in British Columbia where the contract was made, but only in California where

Facebook has its head office. This gives Facebook an unfair and overwhelming procedural — and potentially substantive — benefit. Per McLachlin C.J. and Moldaver and Côté JJ. (dissenting): When parties agree to a jurisdiction for the resolution ofdisputes, courts will give effect to that agreement, unless the claimant establishes strong cause for not doing so. In this case, D has notshown strong cause for not enforcing the forum selection clause to which she agreed. Therefore, the action must be tried in California, asthe contract requires, and a stay of the underlying claim should be entered.

Section 11 of the CJPTA does not apply to oust forum selection clauses. Pursuant to Pompey, where the parties have agreedin advance to a choice of forum, there is no need to inquire into which of the two forums is the more convenient; the parties have settledthe matter by their contract, unless the contractual clause is invalid or inapplicable or should not be applied because the plaintiff hasshown strong cause not to do so. A unified test that would apply forum selection clauses as an element of the forum non conveniens testshould be rejected.

While the CJPTA is a complete codification of the common law related to forum non conveniens, it does not supplantthe common law principles underlying the enforcement of forum selection clauses. If the test in Pompey is satisfied and the forumselection clause is inapplicable, the result is a situation where there are two competing possibilities for forum. At this point, the CJPTAwhich codifies the common law provisions for forum non conveniens applies. In this case, the test in Pompey is not satisfied andtherefore s. 11 of the CJPTA does not assist D.

With respect to the first step of the Pompey test, Facebook has discharged the burden of establishing that the forum selectionclause is enforceable and applies in the circumstances: it is established that an enforceable contract may be formed by clicking anappropriately designated online icon; the contract on its face is clear and there is no inconsistency between a commitment to strive toapply local laws and an agreement that disputes will be tried in California; and finally, s. 4 of the Privacy Act grants the Supreme Courtof British Columbia subject matter jurisdiction over Privacy Act claims to the exclusion of other British Columbia courts but nothing inthe language of s. 4 suggests that it can render an otherwise valid contractual term unenforceable.

While the court can refuse to enforce otherwise valid contractual provisions that offend public policy, the party seeking toavoid enforcement of the clause must prove the existence of an overriding public policy that outweighs the very strong public interest inthe enforcement of contracts. No such overriding public policy is found on the facts of this case. Forum selection clauses, far from beingunconscionable or contrary to public policy, are supported by strong policy considerations. They serve an important role of increasingcertainty and predictability in transactions that take place across borders.

And, the fact that a contract is in standard form does not affectthe validity of such a clause. That is not to say that forum selection clauses will always be given effect by the courts. Burdens of distanceor geography may render the application of a forum selection clause unfair in the circumstances. However, those considerations arerelevant at the second step of Pompey, not the first. Here, the forum selection clause is valid and applicable and the first step of Pompeytest has been met.

As to the second step of the Pompey test, requiring the plaintiff to demonstrate strong cause is essential for upholdingcertainty, order and predictability in private international law, especially in light of the proliferation of online services provided acrossborders. In this case, none of the circumstances relied on by D show strong cause why the forum selection clause should not be enforced.She has not shown that the facts in the case and the evidence to be adduced shifts the balance of convenience from the contracted state ofCalifornia to British Columbia.

Further, the British Columbia tort created by the Privacy Act does not require special expertise and thecourts of California have not been shown to be disadvantaged in interpreting the Privacy Act as compared with the Supreme Court ofBritish Columbia. Nothing in D’s situation suggests that the class action she wishes to commence could not be conducted in Californiajust as easily as in British Columbia. There is also no suggestion that Facebook does not genuinely wish all litigation with users to takeplace in California.

Finally, D has not shown that application of the forum selection clause would deprive her of a fair trial. Applying the strong cause test in a nuanced manner or modifying the test to place the burden on the defendant in the contextof consumer contracts of adhesion would amount to inappropriately overturning the Court’s decision in Pompey and substituting newand different principles.

Nuancing the strong cause test by considering the factor of the consumer’s lack of bargaining power conflatesthe first step of the test set out in Pompey with the second step, in a way that profoundly alters the law endorsed in Pompey. It is at thefirst step that inequality of bargaining power is relevant. Inequality of bargaining power may lead to a clause being declaredunconscionable – something not argued by D. In this case, Facebook has demonstrated that the forum selection clause is enforceable andD has failed to establish strong cause why the forum selection clause she agreed to should not be enforced.

Cases Cited By Karakatsanis, Wagner and Gascon JJ. Applied: Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450; referred to: Momentous.ca Corp. v.Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722, 103 O.R. (3d) 467, aff’d 2012 SCC 9, [2012] 1 S.C.R. 359;Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321; Viroforce Systems Inc. v. R & D Capital Inc.,2011 BCCA 260, 336 D.L.R. (4th) 570; Armoyan v. Armoyan, 2013 NSCA 99, 334 N.S.R. (2d) 204; Hudye Farms Inc. v. CanadianWheat Board, 2011 SKCA 137, 377 Sask. R. 146; Frey v.

BCE Inc., 2011 SKCA 136, 377 Sask. R. 156; The Fehmarn, [1958] 1 All E.R.333; Preymann v. Ayus Technology Corp., 2012 BCCA 30, 32 B.C.L.R. (5th) 391; The “Eleftheria”, [1969] 1 Lloyd’s Rep. 237; HoltCargo Systems Inc. v. ABC Containerline N.V. (Trustees of), 2001 SCC 90, [2001] 3 S.C.R. 907; Donohue v. Armco Inc., [2001] UKHL64, [2002] 1 All E.R. 749; Aldo Group Inc. v. Moneris Solutions Corp., 2013 ONCA 725, 118 O.R. (3d) 81; GreCon Dimter inc. v. J.R.Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; Straus v. Decaire, 2007 ONCA 854; Expedition Helicopters Inc. v.

Honeywell Inc.,2010 ONCA 351, 100 O.R. (3d) 241; Stubbs v. ATS Applied Tech Systems Inc., 2010 ONCA 879, 272 O.A.C. 386; Welex A.G. v. RosaMaritime Limited (The “Epsilon Rosa”), [2003] EWCA Civ 938, [2003] 2 Lloyd’s Rep. 509; The “Bergen” (No. 2), [1997] 2 Lloyd’sRep. 710; Quinlan v. Safe International Försäkrings AB, [2005] FCA 1362; Incitec Ltd. v. Alkimos Shipping Corp., [2004] FCA 698, 206A.L.R. 558; Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494; R. v. Salituro, (SCC), [1991] 3 S.C.R. 654; 80Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., (ON CA), [1972] 2 O.R. 280; TCR Holding Corp. v.

Ontario, 2010ONCA 233, 69 B.L.R. (4th) 175; Kelly v. Human Rights Commission (P.E.I.), 2008 PESCAD 9, 276 Nfld. & P.E.I.R. 336; Seidel v.TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531; BG Checo International Ltd. v. British Columbia Hydro and PowerAuthority, (SCC), [1993] 1 S.C.R. 12; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002

SCC 53, [2002] 2 S.C.R. 773; Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417; Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R. 162; Vita Food Products, Inc. v.Unus Shipping Co., (UK JCPC), [1939] A.C. 277; Avenue Properties Ltd. v. First City Dev. Corp. Ltd. (1986), (BC CA), 7 B.C.L.R. (2d) 45. By Abella J. Applied: Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450; referred to: The “Eleftheria”,[1969] 1 Lloyd’s Rep. 237; Alberta (Information and Privacy Commissioner) v.

United Food and Commercial Workers, Local 401, 2013SCC 62, [2013] 3 S.C.R. 733; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401; Zi Corp. v. Steinberg, 2006ABQB 92, 396 A.R. 157; Gould v. Western Coal Corp., 2012 ONSC 5184, 7 B.L.R. (5th) 19; Ironrod Investments Inc. v. Enquest EnergyServices Corp., 2011 ONSC 308; Incorporated Broadcasters Ltd. v. Canwest Global Communications Corp. (2001), (ON SC), 20 B.L.R. (3d) 289, aff’d. (2003), (ON CA), 63 O.R. (3d) 431; Takefman v. Golden Hope Mines Ltd., 2015QCCS 4947; Nord Resources Corp. v.

Nord Pacific Ltd., 2003 NBQB 213, 37 B.L.R. (3d) 115; Tercon Contractors Ltd. v. BritishColumbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69. By McLachlin C.J and Côté J. (dissenting) Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, [2003] 1 S.C.R. 450; Preymann v. Ayus Technology Corp., 2012BCCA 30, 32 B.C.L.R. (5th) 391; Teck Cominco Metals Ltd. v. Lloyd’s Underwriters, 2009 SCC 11, [2009] 1 S.C.R. 321; ViroforceSystems Inc. v. R & D Capital Inc., 2011 BCCA 260, 336 D.L.R. (4th) 570; Frey v. BCE Inc., 2011 SKCA 136, 377 Sask. R. 156; HudyeFarms Inc. v.

Canadian Wheat Board, 2011 SKCA 137, 377 Sask. R. 146; Rudder v. Microsoft Corp. (1999), (ONSC), 2 C.P.R. (4th) 474; Berkson v. Gogo LLC, 97 F. Supp.3d 359 (2015); GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46,[2005] 2 S.C.R. 401; Tercon Contractors Ltd. v. British Columbia (Transportation and Highways), 2010 SCC 4, [2010] 1 S.C.R. 69;Donohue v. Armco Inc., [2001] UKHL 64, [2002] 1 All E.R. 749; Atlantic Marine Construction Co. v. U.S. Dist. Court for Western Dist.of Texas, 134 S.Ct. 568 (2013); The Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972); Akai Pty Ltd. v.

People’s Insurance Co. (1996),188 C.L.R. 418; Advanced Cardiovascular Systems Inc. v. Universal Specialties Ltd., [1997] 1 N.Z.L.R. 186; Carnival Cruise Lines, Inc.v. Shute, 499 U.S. 585 (1991); The “Eleftheria”, [1969] 1 Lloyd’s Rep. 237; Ledcor Construction Ltd. v. Northbridge IndemnityInsurance Co., 2016 SCC 37, [2016] 2 S.C.R. 23; Morguard Investments Ltd. v. De Savoye, (SCC), [1990] 3 S.C.R.1077; Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572; Tolofson v. Jensen, (SCC), [1994] 3 S.C.R.1022; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; R. v.

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APPEAL from a judgment of the British Columbia Court of Appeal (Bauman C.J.B.C. and Lowry and Goepel JJ.A.), 2015 BCCA 279 , 77 B.C.L.R. (5th) 116, 374 B.C.A.C. 56, 642 W.A.C. 56, 73 C.P.C. (7th) 87, 387 D.L.R. (4th) 360, [2016] 1 W.W.R. 287, [2015] B.C.J. No. 1270 (QL), 2015 CarswellBC 1671 (WL Can.), setting aside a decision of Griffin J., 2014 BCSC 953 , 313 C.R.R. (2d) 254, 53 C.P.C. (7th) 302, [2014] B.C.J. No. 1051 (QL), 2014 CarswellBC 1487 (WL Can.). Appeal allowed, McLachlin C.J. and Moldaver and Côté JJ. dissenting. Ward K. Branch , Q.C. , Christopher Rhone and Michael Sobkin , for the appellant.

Mark A. Gelowitz and W. David Rankin , for the respondent. Cynthia Kuehl and Meredith E. Jones , for the intervener the Canadian Civil Liberties Association. Paul J. Bates , Marina Pavlovic and Jeremy de Beer , for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. Matthew P. Gottlieb , Paul Michell and Ian C. Matthews , for the intervener the Information Technology Association of Canada. Derek J. Bell and Jason M. Berall , for the intervener the Interactive Advertising Bureau of Canada. The following are the reasons delivered by Karakatsanis, Wagner and Gascon JJ. — I.

Overview [ 1 ] Forum selection clauses purport to oust the jurisdiction of otherwise competent courts in favour of a foreign jurisdiction. To balance contractual freedom with the public good in having local courts adjudicate certain claims, courts have developed a test to determine whether such clauses should be enforced. This test has mostly been applied in commercial contexts, where forum selection clauses are generally enforced to hold sophisticated parties to their bargain, absent exceptional circumstances.

This appeal requires the Court to apply this test in a consumer context. [ 2 ] Deborah Douez is a resident of British Columbia and a member of the social network Facebook.com. She claims that Facebook, Inc. infringed her privacy rights and those of more than 1.8 million British Columbians, contrary to the Privacy Act of that province. Facebook is seeking to have the action stayed on the basis of the forum selection clause contained in its terms of use, which

every user must click to accept in order to use its social network. [ 3 ] The chambers judge refused to stay the action, concluding that the Privacy Act overrides the clause, and that it provides strong reasons not to enforce it. The Court of Appeal reversed her decision, concluding instead that the clause was enforceable and that Ms. Douez had failed to show strong cause not to enforce it. [ 4 ] Like our colleague Abella J., although for different reasons, we would allow the appeal. In our view, while s. 4 of the Privacy Act does not override forum selection clauses, Ms.

Douez has established strong reasons not to enforce the clause at issue here. The grossly uneven bargaining power between the parties and the importance of adjudicating quasi-constitutional privacy rights in the province are reasons of public policy that are compelling, and when considered together, are decisive in this case. In addition, the interests of justice, and the comparative convenience and expense of litigating in California, all support a finding of strong cause in the present case. II. Background [ 5 ] The respondent, Facebook, Inc., is an American corporation headquartered in California.

It operates Facebook.com, one of the world’s leading social networks, and generates most of its revenues from advertising. The appellant, Ms. Douez, is a resident of British Columbia and has been a member of Facebook since 2007. [ 6 ] In 2011, Facebook created a new advertising product called “Sponsored Stories”. This product used the name and picture of Facebook members, allegedly without their knowledge, to advertise companies and products to other members on the site and externally. [ 7 ] Ms.

Douez brought an action against Facebook when she noticed that her name and profile picture had been used in Sponsored Stories. She alleges that Facebook used her name and likeness without consent for the purposes of advertising, in contravention to s. 3(2) of the Privacy Act , R.S.B.C. 1996, c. 373:

(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf, consents to the use for that purpose. Ms. Douez also seeks certification of her action as a class proceeding under the Class Proceedings Act , R.S.B.C. 1996, c. 50. The proposed class includes all British Columbia residents who had their name or picture used in Sponsored Stories.

The estimated size of the class is 1.8 million people. [ 8 ] Facebook is free to join and use, but all potential users — including Ms. Douez — must agree to its terms of use as part of the registration process. These terms include a forum selection and choice of law clause requiring that disputes be resolved in California according to California law: 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 purpose of litigating all such claims. [A.R., vol. II, p. 138] [ 9 ] Facebook brought a preliminary motion to stay Ms. Douez’s action on the basis of this forum selection clause.

Alternatively, it argued that the action should be stayed because British Columbia is forum non conveniens under s. 11 of the Court Jurisdiction and Proceedings Transfer Act , S.B.C. 2003, c. 28 (“ CJPTA ”). In our Court, however, Facebook focused its submissions exclusively on the forum selection clause and did not argue that British Columbia is forum non conveniens . III. Decisions Below A. Supreme Court of British Columbia (Griffin J.), 2014 BCSC 953 , 313 C.R.R. (2d) 254 [ 10 ] The chambers judge declined to enforce the forum selection clause.

Although she found it to be prima facie valid, clear and enforceable, she held that s. 4 of the Privacy Act overrides forum selection clauses and provides a strong public policy not to enforce them. In her view, the British Columbia Supreme Court has exclusive jurisdiction under s. 4 to hear actions under the Act. As a result, she concluded that the plaintiff would be unable to bring her claim elsewhere if the claim was stayed. [ 11 ] While the chambers judge’s findings on s. 4 were sufficient to resolve the motion, she also found that there was strong cause not to enforce the forum selection clause.

Enforcing it would, in her view, exclude Facebook from liability because only the British Columbia Supreme Court had jurisdiction over the matter. Ms. Douez did not need to prove California courts would refuse to hear her claim. In addition, she found that the jurisdiction clause and purposes of the Privacy Act provide strong public policy reasons supporting a finding of strong cause. [ 12 ] Lastly, the chambers judge concluded on the basis of the factors in s. 11 of the CJPTA that the courts of California would not be more appropriate than the courts of British Columbia to hear the action.

She found that it would be more convenient to hear the matter in British Columbia than in California. Thus, the chambers judge refused Facebook’s request to stay the proceeding. B. Court of Appeal for British Columbia (Bauman C.J. and Lowry and Goepel JJ.A.), 2015 BCCA 279 , 77 B.C.L.R. (5th) 116 [ 13 ] The Court of Appeal reversed the decision of the chambers judge and ordered that the action be stayed on the basis of Facebook’s forum selection clause. It confirmed that the analysis of forum selection clauses is distinct from the analysis of the

appropriate forum under s. 11 of the CJPTA . [ 14 ] The Court of Appeal concluded that the chambers judge erred in her

interpretation of s. 4 of the Privacy Act . In its view, the chambers judge failed to give effect to the principle of territoriality, under which provincial legislation cannot regulate civil rights in another jurisdiction.

Section 4 concerns subject-matter competence, not territorial competence, and therefore it only confers jurisdiction to the Supreme Court of British Columbia to the exclusion of other courts in British Columbia. Had the legislature wanted to override forum selection clauses, it would have done so explicitly. [ 15 ] The Court of Appeal held that the forum selection clause was enforceable, and that Ms. Douez had failed to show strong cause. In finding strong cause, the chambers judge’s analysis was tainted by her erroneous

interpretation of s. 4 of the Privacy Act . The fact that a stay would extinguish a claim might provide strong cause, but Ms. Douez failed to provide evidence establishing that this would be the case here. Since the clause should be enforced, the Court of Appeal did not consider s. 11 of the CJPTA . IV. Issues [ 16 ] Facebook does not dispute that British Columbia courts have territorial jurisdiction. The main issue is whether Ms. Douez’s action should be stayed on the basis of the forum selection clause contained in its terms of use.

The parties also disagree on whether the analysis of forum selection clauses should be subsumed under s. 11 of the CJPTA , or whether they are distinct concepts. V. Analysis [ 17 ] As we shall explain, the forum non conveniens test adopted in the CJPTA was not intended to replace the common law test for forum selection clauses. In our view, this case should be resolved under the strong cause analysis established by this Court in Z.I. Pompey Industrie v. ECU-Line N.V. , 2003 SCC 27 , [2003] 1 S.C.R. 450. A.

The Interaction Between Forum Selection Clauses and the CJPTA [ 18 ] At common law, forum selection clauses and the forum non conveniens doctrine command different analyses: “Each class of case has its own onus, test and rationale” ( Momentous.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd. , 2010 ONCA 722 , 103 O.R. (3d) 467, at para. 37 , aff’d 2012 SCC 9 , [2012] 1 S.C.R. 359).

Our Court has confirmed that “the presence of a forum selection clause” is “sufficiently important to warrant a different test”, and that “a unified approach to forum non conveniens , where a choice of jurisdiction clause constitutes but one factor to be considered” may not be preferable ( Pompey , at para. 21). [ 19 ] Ms. Douez argues that the CJPTA provides a complete framework to determine the court’s jurisdiction, and that forum selection clauses should be considered as another factor within the forum non conveniens analysis under s. 11 . [ 20 ] In our view, the courts below rightly rejected Ms.

Douez’s proposed approach.

Section 11 of the CJPTA “constitutes a complete codification of the common law test for forum non conveniens [that] admits of no exceptions” ( Teck Cominco Metals Ltd. v. Lloyd’s Underwriters , 2009 SCC 11 , [2009] 1 S.C.R. 321, at para. 22 (emphasis added)). It was never intended to codify the test for forum selection clauses. Not only does s. 11 make no mention of contractual stipulations, the comments on the uniform act that served as a basis for the CJPTA are also silent on this point (Uniform Law Conference of Canada, Uniform Court Jurisdiction and Proceedings Transfer Act (online)).

The analysis of forum selection clauses thus remains separate, despite the enactment of the CJPTA . [ 21 ] Several Canadian provinces have adopted their own CJPTA , with identical or similar provisions. Their appellate courts have consistently held that the analysis of forum selection clauses remains distinct (see e.g. Viroforce Systems Inc. v. R & D Capital Inc. , 2011 BCCA 260 , 336 D.L.R. (4th) 570, at para. 14 ; Armoyan v. Armoyan , 2013 NSCA 99 , 334 N.S.R. (2d) 204, at para. 218 ).

Even the Court of Appeal of Saskatchewan, which held that forum selection clauses should be considered as part of the CJPTA analysis, held that “ Pompey continues to apply notwithstanding [its] enactment” ( Hudye Farms Inc. v. Canadian Wheat Board , 2011 SKCA 137 , 377 Sask. R. 146, at para. 10 ; see also Frey v. BCE Inc. , 2011 SKCA 136 , 377 Sask. R. 156, at paras. 112-14 ). [ 22 ] In short, the CJPTA was never intended to replace the common law test for forum selection clauses.

In the absence of legislation to the contrary, the common law test continues to apply and provides the analytical framework for this case. B. The Forum Selection Clause at Common Law: Pompey [ 23 ] We turn next to the common law test for forum selection clauses adopted by this Court in Pompey , and to how we propose to apply it in a consumer context. [ 24 ] Forum selection clauses serve a valuable purpose.

This Court has recognized that they “are generally to be encouraged by the courts as they create certainty and security in transaction, derivatives of order and fairness, which are critical components of private international law” ( Pompey , at para. 20). Forum selection clauses are commonly used and regularly enforced. [ 25 ] That said, forum selection clauses divert public adjudication of matters out of the provinces, and court adjudication in each province is a public good.

Courts are not merely “law-making and applying venues”; they are institutions of “public norm generation and legitimation, which guide the formation and understanding of relationships in pluralistic and democratic societies” (T. C. W. Farrow, Civil Justice, Privatization, and Democracy (2014), at p. 41). Everyone has a right to bring claims before the courts, and these courts have an obligation to hear and determine these matters. [ 26 ] Thus, forum selection clauses do not just affect the parties to the contract.

They implicate the court as well, and with it, the court’s obligation to hear matters that are properly before it. In this way, forum selection clauses are a “unique category of contracts” (M. Pavlović, “Contracting out of Access to Justice: Enforcement of Forum-Selection Clauses in Consumer Contracts” (2016), 62 McGill L.J. 389, at p. 396). [ 27 ] Of course, parties are generally held to their bargain and are bound by the enforceable terms of their contract.

However, because forum selection clauses encroach on the public sphere of adjudication, Canadian courts do not simply enforce themlike any other clause. In common law provinces, a forum selection clause cannot bind a court or interfere with a court’s jurisdiction.

Asthe English Court of Appeal recognized long ago, “no one by his private stipulation can oust these courts of their jurisdiction in a matterthat properly belongs to them” (The Fehmarn, [1958] 1 All E.R. 333, at p. 335). [28] Instead, where no legislation overrides the clause, courts apply a two-step approach to determine whether to enforcea forum selection clause and stay an action brought contrary to it (Pompey, at para. 39).

At the first step, the party seeking a stay basedon the forum selection clause must establish that the clause is “valid, clear and enforceable and that it applies to the cause of actionbefore the court” (Preymann v. Ayus Technology Corp., 2012 BCCA 30, 32 B.C.L.R. (5th) 391, at para. 43; see also Hudye Farms, atpara. 12, and Pompey, at para. 39). At this step of the analysis, the court applies the principles of contract law to determine the validity ofthe forum selection clause.

As with any contract claim, the plaintiff may resist the enforceability of the contract by raising defences suchas, for example, unconscionability, undue influence, and fraud. [29] Once the party seeking the stay establishes the validity of the forum selection clause, the onus shifts to the plaintiff.At this second step of the test, the plaintiff must show strong reasons why the court should not enforce the forum selection clause andstay the action. In Pompey, this Court adopted the “strong cause” test from the English court’s decision in The “Eleftheria”, [1969] 1Lloyd’s Rep. 237 (Adm. Div.).

In exercising its discretion at this step of the analysis, a court must consider “all the circumstances”,including the “convenience of the parties, fairness between the parties and the interests of justice” (Pompey, at paras. 19 and 30-31).Public policy may also be a relevant factor at this step (Holt Cargo Systems Inc. v. ABC Containerline N.V. (Trustees of), 2001 SCC 90,[2001] 3 S.C.R. 907, at para. 91, referred to in Pompey, at para. 39; Frey, at para. 115). [30] The strong cause factors were meant to provide some flexibility.

Importantly, Pompey did not set out a closed list offactors governing the court’s discretion to decline to enforce a forum selection clause. Both Pompey and The “Eleftheria” acknowledgedthat courts should consider “all the circumstances” of the particular case (Pompey, at para. 30; The “Eleftheria”, at p. 242). And theleading authority in England continues to recognize that the court in The “Eleftheria” did not intend its list of factors to becomprehensive (Donohue v.

Armco Inc., [2001] UKHL 64, [2002] 1 All E.R. 749, at para. 24). [31] That said, the strong cause factors have been interpreted and applied restrictively in the commercial context. Incommercial interactions, it will usually be desirable for parties to determine at the outset of a business relationship where disputes will besettled. Sophisticated parties are justifiably “deemed to have informed themselves about the risks of foreign legal systems and aredeemed to have accepted those risks in agreeing to a forum selection clause” (Aldo Group Inc. v.

Moneris Solutions Corp., 2013 ONCA725, 118 O.R. (3d) 81, at para. 47). In this setting, our Court recognized that forum selection clauses are generally enforced and to beencouraged “because they provide international commercial relations with the stability and foreseeability required for purposes of thecritical components of private international law, namely order and fairness” (GreCon Dimter inc. v. J.R.

Normand inc., 2005 SCC 46,[2005] 2 S.C.R. 401, at para. 22). [32] In Pompey, for example, our Court enforced a forum selection clause contained in a bill of lading concluded betweentwo sophisticated shipping companies. The parties were of similar bargaining power and sophistication, since they were “corporationswith significant experience in international maritime commerce. . . . [that] were aware of industry practices” (para. 29). The Court heldthat the “forum selection clause could very well have been negotiated” between the parties (ibid.).

This context manifestly informed theCourt’s application of the strong cause test. [33] But commercial and consumer relationships are very different. Irrespective of the formal validity of the contract, theconsumer context may provide strong reasons not to enforce forum selection clauses. For example, the unequal bargaining power of theparties and the rights that a consumer relinquishes under the contract, without any opportunity to negotiate, may provide compellingreasons for a court to exercise its discretion to deny a stay of proceedings, depending on the other circumstances of the case (see e.g.Straus v.

Decaire, 2007 ONCA 854, at para. 5 ).

And as one of the interveners argues, instead of supporting certainty andsecurity, forum selection clauses in consumer contracts may do “the opposite for the millions of ordinary people who would not foreseeor expect its implications and cannot be deemed to have undertaken sophisticated analysis of foreign legal systems prior to opening anonline account” (Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic Factum, at para. 7). [34] Canadian courts have recognized that the test may apply differently, depending on the contractual context (seeExpedition Helicopters Inc. v.

Honeywell Inc., 2010 ONCA 351, 100 O.R. (3d) 241, at para. 24; Stubbs v. ATS Applied Tech SystemsInc., 2010 ONCA 879, 272 O.A.C. 386, at para. 58). The English courts have also recognized that not all forum selection clauses arecreated equally. The underpinning of the transaction is relevant to the exercise of discretion under the strong cause test: “. . . a defendantwho cynically flouts a jurisdiction clause which he has freely negotiated is more likely to be enjoined than one who has had the clauseimposed upon him . . . .” (Welex A.G. v.

Rosa Maritime Limited (The “Epsilon Rosa”), [2003] EWCA Civ 938, [2003] 2 Lloyd’s Rep.509, at para. 48; see also The “Bergen” (No. 2), [1997] 2 Lloyd’s Rep. 710 (Q.B. (Adm. Ct.)), at p. 715; D. Joseph, Jurisdiction andArbitration Agreements and their Enforcement (2nd ed. 2010), at para. 10.13). Similarly, Australian courts have found “that in aconsumer situation [courts] should not place as much weight on an exclusive jurisdiction clause in determining a stay application aswould be placed on such a clause where there was negotiation between business people” (Quinlan v.

Safe International Försäkrings AB,[2005] FCA 1362, at para. 46 (AustLII); see also Incitec Ltd. v. Alkimos Shipping Corp., [2004] FCA 698, 206 A.L.R. 558, at para. 50). [35] As these cases recognize, different concerns animate the consumer context than those that this Court considered inPompey, where a sophisticated commercial transaction was at issue. Because of these concerns, we agree with Ms.

Douez and severalinterveners that the strong cause test must account for the different considerations relevant to this context. [36] In our view, recognizing the importance of factors beyond those specifically listed in The “Eleftheria” is anappropriate incremental response of the common law to a different context (Bhasin v. Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494, atparas. 33-34 and 40). Such a development is especially important since online consumer contracts are ubiquitous, and the global reach ofthe Internet allows for instantaneous cross-border consumer transactions.

It is necessary to keep private international law “in step withthe dynamic and evolving fabric of our society” (R. v. Salituro, (SCC), [1991] 3 S.C.R. 654, at p. 670).

[37] After all, the strong cause test must ensure that a court’s plenary jurisdiction only yields to private contracts whereappropriate. A superior court’s general jurisdiction includes “all the powers that are necessary to do justice between the parties” (80Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., (ON CA), [1972] 2 O.R. 280 (C.A.), at p. 282; TCR Holding Corp.v. Ontario, 2010 ONCA 233, 69 B.L.R. (4th) 175, at para. 26; Kelly v. Human Rights Commission (P.E.I.), 2008 PESCAD 9, 276 Nfld.& P.E.I.R. 336, at para. 8). [38] Therefore, we would modify the Pompey strong cause factors in the consumer context.

When considering whether itis reasonable and just to enforce an otherwise binding forum selection clause in a consumer contract, courts should take account of all thecircumstances of the particular case, including public policy considerations relating to the gross inequality of bargaining power betweenthe parties and the nature of the rights at stake. The burden remains on the party wishing to avoid the clause to establish strong cause. [39] Although the steps are distinct, some considerations may be relevant to both steps of the test.

For example, a courtmay consider gross inequality of bargaining power at the second step of the analysis, even if the circumstances of the bargain do notrender the contract unconscionable at the first step. Taking into account the fact that the parties did not negotiate on an even playing fieldrecognizes that the reasons for holding parties to their bargain carry less weight when there is no opportunity to negotiate a forumselection clause.

This is not to say that the gross inequality of bargaining power will be sufficient, on its own, to show strong cause.However, it is a relevant circumstance that may be taken into account in the analysis. [40] The two steps governing the enforcement of forum selection clauses ultimately play conceptually distinct roles.Professor Pavlović explains that at the first step, where the court determines the validity of the forum selection clause, “[c]ontract rulesprovide a core legal basis for the enforcement of jurisdiction agreements” (p. 402).

On the other hand, the strong cause test at the secondstep “limits contractual autonomy in order to protect the authority (jurisdiction) of otherwise competent courts” (ibid.). This second steprecognizes that there may be strong reasons to retain jurisdiction over a matter in the province. C. Application

(1) Section 4 of the Privacy Act [41] As this Court recognized in Pompey, legislative provisions can override forum selection clauses. In the present case,the chambers judge found that s. 4 of the Privacy Act had overtaken the forum selection clause in conferring exclusive jurisdiction to theSupreme Court of British Columbia. We disagree. [42]

Section 4 reads as follows: 4 Despite anything contained in another Act, an action under this Act must be heard and determined by the Supreme Court [of BritishColumbia]. [43]

Section 4 lacks the clear and specific language that legislatures normally use to override forum selection clauses.This Court referred to such overrides on at least two occasions. First, it found an override in s. 46(1) of the Marine Liability Act, S.C.2001, c. 6, which specifically mentions and sets aside contracts that purport to provide for the adjudication of claims in another forum(Pompey, at paras. 37-38). Second, it found that the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2, was intended tooverride arbitration clauses (Seidel v. TELUS Communications Inc., 2011 SCC 15, [2011] 1 S.C.R. 531, at paras. 5-7 and 31).

Section 3of that enactment specifically prevents consumers from contractually waiving their rights under the statute. [44] In contrast, although s. 4 of the Privacy Act expressly provides that it applies “[d]espite anything contained inanother Act”, it is silent on contractual provisions. If the legislature had intended to override forum selection clauses, it would have doneso explicitly. While the legislature intended s. 4 of the Privacy Act to confer jurisdiction to the British Columbia Supreme Court toresolve matters brought under the Act, nothing suggests that it was also intended to override forum selection clauses.

(2) The Pompey Test [45] As discussed above, the Pompey test involves a two-step analysis. At the first step, the court must be satisfied thatthe contract is otherwise enforceable, having regard to general principles of contract law. [46] In this regard, Ms. Douez argues that the clause is unenforceable primarily because it was made unclear byFacebook’s statement that it “strive[s] to respect local laws”. We disagree. This general statement, which is also contained in the terms ofuse, does not prevail over the clear and specific language of the forum selection clause.

Indeed, “where there is apparent conflict betweena general term and a specific term, the terms may be reconciled by taking the parties to have intended the scope of the general term to notextend to the subject-matter of the specific term” (BG Checo International Ltd. v. British Columbia Hydro and Power Authority, (SCC), [1993] 1 S.C.R. 12, at p. 24; see also G. R. Hall, Canadian Contractual

Interpretation Law (3rd ed. 2016), at p. 19).And as Facebook rightly notes, s. 15(1) of the Electronic Transactions Act, S.B.C. 2001, c. 10, permits offer and acceptance to occur inan electronic form through “clicking” online. [47] Our colleague Abella J. concludes that the clause is not enforceable at this first step based upon otherconsiderations. We prefer to address these considerations at the “strong cause” step of the test. [48] At the second step of Pompey — the strong cause test — Facebook argues that Ms.

Douez has failed to meet herburden because she did not provide any evidence that her contract with Facebook is the result of grossly uneven bargaining power or thata California court would be unable to hear her claim. For her part, Ms. Douez emphasizes the distinctions between a commercial contractamongst sophisticated parties and the consumer context.

She also stresses the importance of privacy rights and the public policyunderpinning the British Columbia legislature’s decision to enact a statutory cause of action to allow for vindication of these rights. [49] As we note above, in exercising its discretion at this step of the analysis, a court must consider “all thecircumstances”, including the “convenience of the parties, fairness between the parties and the interests of justice” (Pompey, at paras. 19

and 30-31). As we have said, public policy may also be an important factor at this step (Holt Cargo, at para. 91, referred to in Pompey, atpara. 39; Frey, at para. 115). [50] We conclude that Ms. Douez has met her burden of establishing that there is strong cause not to enforce the forumselection clause. A number of different factors, when considered cumulatively, support the chambers judge’s finding of strong cause.Most importantly, the claim involves a consumer contract of adhesion and a statutory cause of action implicating the quasi-constitutionalprivacy rights of British Columbians. We begin with these compelling factors, which are decisive in this case when considered together. (

a) Public Policy [51] There are strong public policy considerations which favour a finding of strong cause. As we have mentioned, thisCourt has emphasized party autonomy and commercial certainty in the context of contracts involving sophisticated parties. This usuallyjustifies enforcement of forum selection clauses in the commercial context (Pompey, at para. 20; GreCon Dimter, at para. 22). Facebookargues that there is no reason to depart from this balance in the consumer context.

We disagree. [52] There are generally strong public policy reasons to hold parties to their bargain and it is clear that forum selectionclauses are not inherently contrary to public policy. But freedom of contract is not unfettered. A court has discretion under the strongcause test to deny the enforcement of a contract for reasons of public policy in appropriate circumstances. Generally, such limitations fallinto two broad categories: those intended to protect a weaker party or those intended to protect “the social, economic, or political policiesof the enacting state in the collective interest” (C.

Walsh, “The Uses and Abuses of Party Autonomy in International Contracts” (2010),60 U.N.B.L.J. 12, at p. 15). In this case, both of these categories are implicated. It raises both the reality of unequal bargaining power inconsumer contracts of adhesion and the local court’s interest in adjudicating claims involving constitutional or quasi-constitutional rights. [53] First, the forum selection clause is included in a contract of adhesion formed between an individual consumer and alarge corporation.

As we discussed above, even if a contract is not unconscionable, gross inequality of bargaining power is still a relevantfactor at the strong cause step of the analysis in this context. [54] Despite Facebook’s claim otherwise, it is clear from the evidence that there was gross inequality of bargainingpower between the parties. Ms. Douez’s claim involves an online contract of adhesion formed between an individual and a multi-billiondollar corporation. The evidence on the record is that Facebook reported almost $4.28 billion in revenue in 2012 through advertising onits social media platform.

It is in contractual relationships with 1.8 million British Columbian residents, approximately 40 percent of theprovince’s population. Ms. Douez is one of these individuals. [55] Relatedly, individual consumers in this context are faced with little choice but to accept Facebook’s terms of use.Facebook asserts that Ms. Douez could have simply rejected Facebook’s terms.

But as the academic commentary makes clear, in today’sdigital marketplace, transactions between businesses and consumers are generally covered by non-negotiable standard form contractspresented to consumers on a “take-it-or-leave-it” basis (Pavlović, at p. 392). [56] In particular, unlike a standard retail transaction, there are few comparable alternatives to Facebook, a socialnetworking platform with extensive reach.

British Columbians who wish to participate in the many online communities that interactthrough Facebook must accept that company’s terms or choose not to participate in its ubiquitous social network. As the intervener theCanadian Civil Liberties Association emphasizes, “access to Facebook and social media platforms, including the online communitiesthey make possible, has become increasingly important for the exercise of free speech, freedom of association and for full participationin democracy” (I.F., at para. 16).

Having the choice to remain “offline” may not be a real choice in the Internet era. [57] Given this context, it is clear that the difference in bargaining power between the parties is large. This distinguishesthe situation from Pompey, where the Court emphasized that the respondent in that case could have chosen to negotiate the forumselection clause in the bill of lading (para. 29). Nothing suggests in this case that Ms.

Douez could have similarly negotiated the terms ofuse. [58] Secondly, Canadian courts have a greater interest in adjudicating cases impinging on constitutional and quasi-constitutional rights because these rights play an essential role in a free and democratic society and embody key Canadian values. Thereis an inherent public good in Canadian courts deciding these types of claims. Through adjudication, courts establish norms and interpretthe rights enjoyed by all Canadians. [59] At issue in this case is Ms. Douez’s statutory privacy right.

Privacy legislation has been accorded quasi-constitutional status (Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, atparas. 24-25). This Court has emphasized the importance of privacy — and its role in protecting one’s physical and moral autonomy —on multiple occasions (see Lavigne, at para. 25; Dagg v. Canada (Minister of Finance), (SCC), [1997] 2 S.C.R. 403, atparas. 65-66; R. v. Dyment, (SCC), [1988] 2 S.C.R. 417, at p. 427).

As the chambers judge noted, the growth of theInternet, virtually timeless with pervasive reach, has exacerbated the potential harm that may flow from incursions to a person’s privacyinterests. In this context, it is especially important that such harms do not go without remedy. And since Ms. Douez’s matter requires aninterpretation of a statutory privacy tort, only a local court’s

interpretation of privacy rights under the Privacy Act will provide clarity andcertainty about the scope of the rights to others in the province. [60] Moreover, the British Columbia legislature’s creation of a statutory cause of action evidences an intention to createlocal rights and protections for the privacy rights of British Columbia residents.

As the chambers judge noted, local courts are betterplaced to adjudicate these sorts of claims: . . . local courts may be more sensitive to the social and cultural context and background relevant to privacy interests of BritishColumbians, as compared to courts in a foreign jurisdiction. This could be important in determining the degree to which privacy interestshave been violated and any damages that flow from this. [para. 75] [61] Similarly, the legislature’s creation of a statutory privacy tort that can be established without proof of damages

reflects the legislature’s intention to encourage access to justice for such claims. As well, British Columbia’s Class Proceedings Actprovides important procedural tools designed to improve access to justice (Endean v. British Columbia, 2016 SCC 42, [2016] 2 S.C.R.162, at para. 1). [62] Yet commentators recognize the practical reality that forum selection clauses often operate to defeat consumerclaims (E. A. Purcell, Jr., “Geography as a Litigation Weapon: Consumers, Forum-Selection Clauses, and the Rehnquist Court” (1992),40 UCLA L. Rev. 423, at pp. 446-49).

Given the importance of constitutional and quasi-constitutional rights, it is even more importantthat reverence to freedom of contract and party autonomy does not mean that such rights routinely go without remedy. [63] Overall, the public policy concerns weigh heavily in favour of strong cause. (

b) Secondary Factors [64] In addition to the strong public policy reasons favouring strong cause, two other secondary factors also suggest thatthe forum selection clause should not be enforced. These factors are the interests of justice and the comparative convenience andexpense of litigating in the alternate forum. (

i) Interests of Justice [65] The interests of justice (Pompey, at para. 31), support adjudication of Ms. Douez’s claim in British Columbia. Thisfactor is concerned not only with whether enforcement of the forum selection clause would unfairly cause the loss of a proceduraladvantage, but also with which forum is best positioned to hear the case on its merits.

Of course, unlike in the forum non conveniensanalysis, the burden is on the party resisting enforcement of the clause to show good reason why the parties should not be held to theirbargain. [66] The lack of evidence concerning whether a California court would hear Ms. Douez’s claim was a significant focus ofthe hearing before us. In front of the chambers judge, Facebook argued that the substantive law of California would defeat theapplication of the Privacy Act. Before this Court, Facebook emphasizes the lack of any expert evidence on whether this would in fact bethe case if the claim proceeded in California.

According to Facebook, the fact that Ms. Douez has not provided expert evidenceestablishing that a California court would not apply the British Columbia Privacy Act is decisive. Similarly, the British Columbia Courtof Appeal placed significant weight on this lack of expert evidence. [67] Yet, none of the leading authorities on the strong cause test, Pompey included, make proof that the claim would failin the foreign jurisdiction a mandatory element of strong cause (see e.g. The “Eleftheria”, Momentous and Pompey).

A plaintiff maychoose to rely on expert evidence to establish that the selected forum would be unable or unwilling to litigate his or her claim. Similarly,the defendant may provide his or her own expert evidence to show that the selected forum would be willing and able to litigate the claim.However, while such evidence may be helpful, its absence is not determinative. Under the Pompey analysis, there is no separaterequirement for the party trying to avoid the forum selection clause to prove that her claim would necessarily fail in the foreignjurisdiction. [68] In addition, Ms.

Douez’s claim is premised on a British Columbia cause of action. Yet, her contract with Facebookincludes a choice of law clause in favour of California: The laws of the State of California will govern this Statement, as well as any claim that might arise between you and us, without regardto conflict of law provisions. [69] We disagree with Facebook that the choice of law question is irrelevant.

Although we do not decide which body oflaw will apply, and how the choice of law clause might interact with the Privacy Act, in our view, the interests of justice are best servedif this question is adjudicated in British Columbia. [70] Generally, common law courts will give effect to choice of law clauses as long as they are bona fide, legal and notcontrary to public policy (Vita Food Products, Inc. v. Unus Shipping Co., (UK JCPC), [1939] A.C. 277 (P.C.), at p.290).

Furthermore, even if a choice of law clause is generally enforceable, local laws may still apply to a dispute if the local forumintends such laws to be mandatory and not avoidable through a choice of law clause (S. G. A. Pitel and N. S. Rafferty, Conflict of Laws(2nd ed. 2016), at p. 299). [71] Usually, courts consider laws of the local forum when determining whether the legislature intended there to bemandatory rules that supersede the parties’ choice of law (G. Saumier, “What’s in a Name? Lloyd’s, International Comity and PublicPolicy” (2002), 37 Can. Bus. L.J. 388, at pp. 395-97; J.

Walker, Castel & Walker: Canadian Conflict of Laws (6th ed. (loose-leaf)), at p.31-2). Whether courts in common law legal systems may similarly consider the intention of foreign legislatures, as set out in statutes likethe Privacy Act, is uncertain (ibid.). In Avenue Properties Ltd. v. First City Dev. Corp.

Ltd. (1986), (BC CA), 7B.C.L.R. (2d) 45 (C.A.), at pp. 57-58, McLachlin J.A. (as she then was) recognized the likelihood that a foreign court would be unable toconsider the public policy evidenced in the local statute as a reason why the local court should refuse a forum non conveniensapplication. [72] But even assuming that a California court could or would apply the Privacy Act, the interests of justice (Pompey, atpara. 31) support having the action adjudicated by the British Columbia Supreme Court.

This court, as compared to a California one, isbetter placed to assess the purpose and intent of the legislation and to decide whether public policy or legislative intent prevents partiesfrom opting out of rights created by the Privacy Act through a choice of law clause in favour of a foreign jurisdiction. (ii) Comparative Convenience and Expense of Litigating in the Alternate Forum [73] Another consideration in the strong cause analysis is the comparative expense and convenience of litigating in thealternate forum (Pompey, at para. 31; The “Eleftheria”, at p. 242).

Therefore, related to the concerns about fairness and access to justice

discussed above, the expense and inconvenience of requiring British Columbian individuals to litigate in California, compared to thecomparative expense and inconvenience to Facebook, further supports a finding of strong cause. [74] Although Facebook argued its relevant books and records were located in California, the chambers judge found itwould be more convenient to have Facebook’s books and records made available for inspection in British Columbia than requiring theplaintiff to travel to California to advance her claim.

There is no reason to disturb this finding. [75] While these secondary factors might not have justified a finding of strong cause on their own, they nonethelesssupport our conclusion that Ms. Douez has established sufficiently strong reasons why the forum selection clause should not be enforcedand the action should proceed in British Columbia. VI. Conclusion [76] We would allow the appeal with costs to the appellant. Ms.

Douez provided strong reasons to resist the enforcementof the clause: most importantly, the gross inequality of bargaining power between her and Facebook and the quasi-constitutional privacyrights engaged by her claim. The forum selection clause is unenforceable. [77] As a result, the chambers judge’s order dismissing Facebook’s application to have the British Columbia SupremeCourt decline jurisdiction is restored. The following are the reasons delivered by [78] Abella J. — Anyone who wants to use Facebook’s service must register as a member and accept Facebook’s termsof use.

The issue in this appeal is the enforceability of the forum selection clause in Facebook’s terms of use, whereby all disputes arerequired to be litigated in Santa Clara County in California. [79] In Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27 , [2003] 1 S.C.R. 450, this Court held that a partyrelying on a forum selection clause must first show that it is enforceable applying a contractual approach.

If it is, the onus shifts to theother party to show that there is “strong cause” for the court to decline to apply the forum selection clause based on considerationsgrounded in forum non conveniens principles. [80] In my view, Facebook’s forum selection clause is not enforceable under the first step of the Pompey test. Background [81] When a Facebook user “liked” a post associated with a business, Facebook occasionally displayed the user’s nameand portrait in an advertisement on the newsfeeds of the user’s friends.

These advertisements were referred to as “Sponsored Stories”.One of those users whose name and portrait were used in a Sponsored Story was Deborah Louise Douez. [82] Ms. Douez claims that she gave no consent to having her name or portrait used in Sponsored Stories. As a result, shebrought proceedings in the Supreme Court of British Columbia alleging that Facebook violated her rights contrary to s. 3(2) of theBritish Columbia Privacy Act, R.S.B.C. 1996, c. 373: 3 . . .

(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another for the purpose of advertising orpromoting the sale of, or other trading in, property or services, unless that other, or a person entitled to consent on his or her behalf,consents to the use for that purpose. [83] Under s. 4, actions under the Privacy Act must be heard in the Supreme Court of British Columbia: 4 Despite anything contained in another Act, an action under this Act must be heard and determined by the Supreme Court. [84] Ms.

Douez also brought a class action proceeding under the Class Proceedings Act, R.S.B.C. 1996, c. 50. Theproposed class consisted of approximately 1.8 million British Columbia residents whose names or portraits had been used by Facebookin a Sponsored Story. [85] Facebook applied for a stay of the proceedings based on the forum selection clause in its terms of use, which statesin part: You will resolve any claim, cause of action or dispute (claim) you have with us arising out of or relating to this Statement or Facebookexclusively in a state or federal court located in Santa Clara County.

The laws of the State of California will govern this Statement, aswell as any claim that might arise between you and us, without regard to conflict of law provisions. You agree to submit to the personaljurisdiction of the courts located in Santa Clara County, California for purpose of litigating all such claims. [Emphasis added.] [86] In the Supreme Court of British Columbia, Griffin J. declined to enforce the forum selection clause and certified theclass action.

She found that s. 4 of the Privacy Act grants exclusive jurisdiction to the Supreme Court of British Columbia to hear claimsunder that Act, overriding any forum selection clause. As such, it was unnecessary for Ms. Douez to show “strong cause” why the forumselection clause should not be applied.

[ 87 ] The Court of Appeal for British Columbia allowed the appeal and granted Facebook’s request for a stay of proceedings based on the forum selection clause. Analysis [ 88 ] Pompey involved a bill of lading between sophisticated commercial entities. This is the first time the Court has been asked to consider how Pompey applies to a forum selection clause in an online consumer contract of adhesion. [ 89 ] In concluding that the forum selection clause in Pompey should be enforced, Bastarache J. set out the following test, based on the 1969 decision in The “Eleftheria” , [1969] 1 Lloyd’s Rep. 237 (Adm.

Div.) : Once the court is satisfied that a validly concluded bill of lading otherwise binds the parties , the court must grant the stay unless the plaintiff can show sufficiently strong reasons to support the conclusion that it would not be reasonable or just in the circumstances to require the plaintiff to adhere to the terms of the clause.

In exercising its discretion, the court should take into account all of the circumstances of the particular case. [Emphasis added; para. 39.] [ 90 ] He also framed it as follows: . . . once it is determined that the bill of lading otherwise binds the parties ( for instance, that the bill of lading as it relates to jurisdiction does not offend public policy, was not the product of fraud or of grossly uneven bargaining positions ), [the “strong cause” test] constitutes an inquiry into questions such as the convenience of the parties, fairness between the parties and the interests of justice . . . . [Emphasis added; para. 31.] [ 91 ] The Court found that the forum selection clause in the bill of lading was enforceable at the first step because the parties were experienced commercial entities who were aware of industry practices and were also, notably, in a position to negotiate the forum selection clause.

As a result, there was no “grossly uneven bargaining power”: Bills of lading are typically entered into by sophisticated parties familiar with the negotiation of maritime shipping transactions who should, in normal circumstances, be held to their bargain. . . . The parties in this appeal are corporations with significant experience in international maritime commerce. The respondents were aware of industry practices and could have reasonably expected that the bill of lading would contain a forum selection clause. A forum selection clause could very well have been negotiated with the appellant . . . .

There is no evidence that this bill of lading is the result of grossly uneven bargaining power that would invalidate the forum selection clause contained therein. [Emphasis added; para. 29.] [ 92 ] The Court went on to conclude that strong cause had not been shown and that a stay should therefore be granted. [ 93 ] It is clear that the Pompey test engages two distinct inquiries. The first is into whether the clause is enforceable under contractual doctrines like public policy, duress, fraud, unconscionability or grossly uneven bargaining positions, tools for examining the enforceability of contracts.

If the clause is enforceable, the onus shifts to the consumer to show “strong cause” why the clause should not be enforced because of factors typically considered under the forum non conveniens doctrine. Those factors were set out in The “Eleftheria” as including: (

a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts. (

b) Whether the law of the foreign Court applies and, if so, whether it differs from English law in any material respects. (

c) With what country either party is connected, and how closely. (

d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (

e) Whether the plaintiffs would be prejudiced by having to sue in the foreign Court because they would (

i) be deprived of security for that claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in England; or

(iv) for political, racial, religious or other reasons be unlikely to get a fair trial. [p. 242] [ 94 ] Unlike my colleagues in dissent, I think, with respect, that a compelling argument ca

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