Canada: Douez v Facebook: Supreme Court Refuses To Enforce Choice Of Forum Clause Against Consumer Class Action

Last Updated: July 14 2017
Article by Michael Shortt

In Douez v Facebook,1 a badly-divided Supreme Court declined to enforce the forum selection clause in Facebook's website terms of use. In the course of its decision, a majority of the Supreme Court called into question the routine enforcement of forum selection clauses in consumer contracts. However, the majority judges differed sharply over the grounds which justified this refusal to enforce, so the Douez case likely heralds significant uncertainty going forward.


Facebook is a well-known and immensely successful social network. In order to join that social network, users must agree to the website's terms of use. The terms of use contain a choice of forum clause conferring exclusive jurisdiction on California courts for all litigation involving Facebook.

The enforceability of that clause was litigated all the way to the Supreme Court of Canada because Ms. Douez wanted to start a class action in British Columbia, not California. Ms. Douez proposed class action complained that Facebook's use of users' names and picturea in its "sponsored stories" program violated the BC Privacy Act, which forbids use of a person's name or likeness in advertising without their consent.

Facebook moved to stay the class action based on the choice of forum clause, failing before the BC Supreme Court, but succeeding in the Court of Appeal. This set the stage for the Supreme Court's consideration of the issue.

Choice of Forum Clauses in the Supreme Court

The seven judges who heard the case agreed that the main issue was whether the Pompey test was satisfied. Under this test, a forum selection clause will be enforced if it satisfies a two-step test:

  1. As a matter of contract law, is the forum selection clause valid and applicable to the dispute at hand?
  2. Even if the clause is valid and applicable, is there nonetheless a "strong cause" to refuse enforcement?

Unfortunately, the applicable test was about the only thing that the justices could agree on in the course of their decisions.

Three judges held that Facebook's forum selection clause was valid as a matter of contract law, thereby satisfying the first step of the Pompey test, but went on to hold that it failed the second step.2 These judges found a "strong cause" to refuse enforcement through the combined effect of two facts. First, the forum selection clause was found in a consumer contract of adhesion. This meant that the clause was not negotiated, and thus the usual policy reasons for holding parties to their bargains were less compelling: "we would modify the Pompey strong cause factors in the consumer context."3 Second, Ms. Douez was asserting quasi-constitutional privacy rights. According to these judges, there is a strong public interest in having constitutional and quasi-constitutional claims adjudicated in local courts. This favoured allowing the class action to proceed in British Columbia, since "only a local court's interpretation of the privacy rights under the Privacy Act will provide clarity and certainty about the scope of the rights to others in the province."4

Justice Abella concurred in holding that Facebook's forum selection clause unenforceable, but gave very different reasons for doing so. In her opinion, the clause didn't even pass the first step in the Pompey test, since it was unenforceable at common law due to unconscionability and violation of public policy. Justice Abella also relied on the consumer context and quasi-constitutional nature of the rights at stake to justify these conclusions. Interestingly, Justice Abella raised these issues of her own motion, since neither unconscionability nor public policy had been pleaded below. She also declined to comment on the second step of the Pompey test.

Finally, three justices would have found the clause valid and enforceable.5 According to these justices, there was no unconscionability or breach of public policy, so the clause passed the first step of the Pompey test. Turning to the second step, these judges refused to treat consumer and commercial contracts differently, ruling that certainty and predictability in private international law required that forum selection clauses be enforced in all but exceptional circumstances. The clause was thus valid, and Ms. Douez should be required to sue in California.

Because four judges found the clause invalid, albeit for different reasons, the appeal was allowed.


The Douez case creates considerable uncertainty about the enforcement of forum selection clauses in Canada, especially since there was no majority position on the "strong cause" step of the Pompey test. On the presence or absence of a strong cause, the court split 3-3, and Justice Abella declined to break the tie by casting her vote for either side.6

However, there were at least two points which did attract a majority opinion:

  • Four of seven justices felt that the Pompey test requires different application in a consumer context, and showed themselves less willing to enforce forum selection clauses in consumer contracts. However, these justices gave very different legal reasons for their conclusions, which makes it difficult to predict what precedential effect the Douez case is likely to have on lower courts. Until this uncertainty is resolved, international entities doing business in Canada should be prepared to face increased challenges to the enforceability of their forum selection clauses in a consumer context.
  • Six of seven justices ruled that statutory provisions conferring exclusive jurisdiction on a specific court to determine an issue will not, without more, preclude litigating that issue in a foreign court. Here, the motion judge and Justice Abella had held that section 4 of the Privacy Act invalidated choice of forum clauses, since it gave exclusive jurisdiction to the BC Supreme Court to hear actions based on the Privacy Act. The other six judges rejected this contention, stating that clear language was required before courts will find a legislative intention to strike down forum selection clauses.7

Given the deep divisions in the Supreme Court, it is difficult to give concrete advice on drafting enforceable consumer forum selection clauses post-Douez. Until this uncertainty is resolved, whether by additional judicial decisions or legislative reform,8 the enforceability of forum selection clauses in Canadian common-law consumer contracts will be difficult to predict.


1. 2017 SCC 33.

2. Douez at paras 1-77 (Karakatsanis, Wagner, and Gascon JJ).

3. Douez at para 38.

4. Douez at para 59.

5. Douez at para 119-177 (McLachlin CJ, Moldaver and Côté JJ).

6. Traditionally, an evenly-divided Supreme Court is considered to affirm the decision below, but the affirmation is not precedential (see Rider v Snow (1891), 20 SCR 12 at 20, Tascherau J; MNR v The Royal Trust Co, [1931] SCR 485 at 489). Here however, the 3-3 split was on a sub-issue, while a 4-3 majority voted to allow the appeal, so the precedential status of Douez remains uncertain.

7. Douez, at paras 41-44 (per Karakatsanis, Wagner, Gascon JJ), 141-144 (per McLachlin CJ, Moldaver and Côté JJ).

8. In Quebec civil law, choice of forum clauses are unenforceable and consumers retain the option of suing in Quebec: Civil Code of Québec, article 3149.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions