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case does clarify the application of the CJPTA (or, rather, the nonapplication
of the CJPTA) to forum selection clauses, at least for jurisdictions
that have enacted that statute.8 Unfortunately, however, the majority
judgment of the KWG Panel also raises many questions about the proper
approach to forum selection clauses with which the profession will be
forced to struggle unless and until there is legislation in the province or the
SCC gets another opportunity to sit as a full court and reconsider forum
selection clauses. The split 3–1–3 decision may mean that the authority of
Douez has a short life as a precedent.
Both the certainties and the uncertainties arising from the decision are
WHAT DID DOUEZ DECIDE?
The decision in Douez provides clarity on two fronts.
First, the SCC explained the degree of explicitness required for a statutory
provision to override a forum selection clause. It is open to Parliament
or the provincial and territorial legislatures to override forum selection
clauses as they apply to particular types of claims, although there are relatively
few examples one can point to in Canada.9 However, the SCC decision
in Douez suggests that a legislative provision that specifically mentions and
overrides contractual provisions that purport to provide for the adjudication
of claims in another forum will suffice.10
While the chambers judge had found that s. 4 of the Privacy Act overrode
the forum selection clause, a majority of the SCC11 held that the language of
the provision was not sufficiently explicit. While the provision conferred
jurisdiction on the B.C. Supreme Court to hear actions brought under the
Act, it did not go further and negate a forum selection clause selecting
courts of another jurisdiction.
Second, a majority of the SCC confirmed where the application of the
common law strong cause test for assessing the enforceability of forum
selection clauses fits within a jurisdictional analysis under the CJPTA.
When the CJPTA was enacted in B.C. and a few other jurisdictions,12 there
was some debate about where the common law strong cause test for assessing
the enforceability of forum selection clauses fit in the analysis.13 The
CJPTA contains a provision under which discretionary jurisdiction is to be
assessed, effectively codifying the common law doctrine of forum non conveniens.
Section 11 requires the court to consider the circumstances relevant
to the proceeding and then lists five such circumstances.
In Teck Cominco Metals Ltd. v. Lloyd’s Underwriters,14 the SCC held that
s. 11 was intended to codify forum non conveniens principles, which led