352 THE ADVOCATE
VOL. 76 PART 3 MAY 2018
merits of the dispute is the function of the choice of law rules of the forum.
In Douez terms, the fact that the court decided that the litigation should be
heard in British Columbia does not necessarily mean that British Columbia
law will be applied to the merits of the action. Even in a class action, a court
will apply choice of law rules when required by the circumstances and it
may be directed by those choice of law rules to a foreign lex causae. Every
contract between Facebook and the 1.8 million class members will contain
a choice of law clause selecting either the law of California or, in the older
versions of the contract, the law of Delaware.
The common law choice of law rule for contracts that the British Columbia
court will apply is that contracts are governed by their proper law. The
proper law of a contract is defined as the law intended by the parties or, in
the absence of intention, the law with which the contract has its closest and
most real connection (or some similar formulation).33 In Vita Food Products
Inc. v. Unus Shipping Co.,34 the Privy Council approved express choice of law
clauses provided the intention expressed was “bona fide and legal, and
provided there is no reason for avoiding the choice on the ground of public
The contracts with Facebook, entered into by Ms. Douez and the 1.8 million
other class members, contained a choice of law clause as well as a
forum selection clause in the same paragraph of the contract. The choice of
law part reads:
The laws of the State of California will govern this Statement, as well as
any claim that might arise between you and us, without regard to conflict
of law provisions.
Each level of court adverted to the choice of California law in the contract
but, as the B.C. Court of Appeal held, the jurisdiction decision did not
require a final ruling on the applicable law and none was made.36 Nevertheless,
Facebook will most likely argue for the application of California law at
the trial on the merits and the comments that were made on the chambers
application and in the SCC may be relevant to the decision on that point.
The choice of law part of the clause is drafted very broadly. It refers to
“any claim that might arise between us” and that wording is broad enough
to include tort claims, as noted by the chambers judge.37 Undoubtedly,
therefore, the choice of California law extends to tort claims such as that
brought by Ms. Douez. The fact that the tort is created by statute in British
Columbia should make no difference to the interpretation and application
of the choice of law clause.
The chambers judge concluded that while a British Columbia court could
still decide to apply the law of California if British Columbia retained juris-