June 23, 2017
By David Fraser, at McInnes Cooper
Statutory Invasion of Privacy. Only a handful of provinces have a statutory tort (private right of action for a civil wrong) for invasion of privacy like that under the B.C. Privacy Act, and only those of Newfoundland and Labrador and Saskatchewan include provisions conferring exclusive jurisdiction on a local court.
Negotiated Contracts. This decision was in the context of a “take it or leave it” consumer contract with unequal bargaining power between the parties, so its reasoning might not apply to a negotiated contract.
Clear Clause. The party seeking a stay in the Canadian court in favour of another venue (in this case, Facebook and California) must establish the clause is valid, clear and enforceable and applies to the lawsuit before the court. The majority of the Court decided Facebook’s choice of forum clause met this hurdle.
Strong Cause Not To Enforce. If the first hurdle is overcome, the onus then shifts to the plaintiff, who must show strong cause why the court should not enforce the contractual choice of forum clause – and in this case, the plaintiff did so:
- Essential Rights at Stake. Canadian courts have a greater interest in adjudicating cases impinging on constitutional and quasi-constitutional rights because they are essential in a free and democratic society and embody key Canadian values. This dispute requires an interpretation of a tort under privacy legislation – and only a local court’s interpretation will provide clarity and certainty about the scope of the rights to others in the province. Furthermore, a B.C. court is better placed to determine the scope and intent of the B.C. law, even if a California court would apply the B.C. privacy legislation in a lawsuit started there.
- Convenience. As an additional factor, the Court concluded that it’s more convenient for Facebook to defend the lawsuit in B.C. than to require the claimant to sue in California.
Please contact your McInnes Cooper lawyer or any member of the Privacy Team @ McInnes Cooper to discuss this topic or any other legal issue.
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