On June 19, 2015, the British Columbia Court of Appeal stayed a proposed privacy class action in Douez v. Facebook, Inc. by enforcing a forum selection clause in favour of the courts of California. The plaintiff had sought certification of a class proceeding seeking class-wide damages against Facebook, Inc. for alleged breaches of the B.C. Privacy Act on behalf of a proposed class of B.C. residents whose name or photograph appeared in Facebook’s advertising feature, Sponsored Stories. In a narrow 4-3 judgment, the Supreme Court of Canada overturned the B.C. Court of Appeal’s decision. In reversing the stay, the Supreme Court addressed for the first time the enforceability of forum selection clauses in online agreements between individuals and businesses.
Osler partners, Mark A. Gelowitz and Tristram Mallett represented Facebook in this litigation and argued this appeals in the B.C. Court of Appeal and the Supreme Court of Canada.