On March 10, 2016, the Supreme Court of Canada granted leave on a second recent case involving jurisdictional issues and the internet: Douez v. Facebook, Inc., 2015 BCCA 279.
Douez involved a BC resident plaintiff who sought to sue Facebook for a breach of privacy arising from the use of her name and her portrait without her consent. The proposed class action suit would be based on a claim that Facebook's practice of featuring the name and image of individuals in relation to certain advertisements amounted to a breach of s. 3 of BC's Privacy Act—a statutory cause of action which only applied within BC.
At first instance, the BC Supreme Court concluded that BC was a proper jurisdiction, was not forum non conveniens, and granted certification. However, on appeal that certification was dismissed.
The result on appeal arose from a forum selection clause in the Facebook Terms of Use. Applying the established test from Z.I. Pompey1, the BC Court of Appeal concluded that there was not "strong cause" to decline to enforce the forum selection clause, and therefore stayed the proceeding.
As with the recent leave to appeal granted in the Equustek case, the Douez decision explores an important aspect of court jurisdiction over disputes involving online conduct. Where Equustek examined cases not governed by binding terms of service, Douez will provide some parallel insight into situations where terms of service purport to limit the ability of Canadian courts to address online disputes, particularly where such terms may come into conflict with geographically limited causes of action.
Given the similar jurisdictional issues raised as between Douez and Equustek, and the proximity in time that the cases were granted leave, it is likely that the court will hear and consider both matters together.
Footnotes
1. Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27
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