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diction, a California court could not apply the British Columbia Privacy
Act if she deferred to the forum selection clause and stayed the British
Columbia action.38 That conclusion weighed “heavily” in favour of British
Columbia as the forum.
The KWG Panel cited Vita Foods as approving choice of law clauses, but
noted that mandatory laws of the forum may be applied even if the choice
of law clause is enforceable.39
Abella J. focused exclusively on the forum selection clause and its invalidity
and, therefore, did not comment on the choice of law clause.
It is difficult to determine what the dissent thought about the choice of
law clause. Their primary focus was on the complete absence of evidence
adduced by Ms. Douez:
A court should not be put in the position of having to speculate as to
whether a California court would exercise its discretion to assume jurisdiction
over a matter, whether that court would apply the laws of British
Columbia, whether privacy laws in California are analogous to those in
British Columbia, whether the procedural rules in California parallel
those in British Columbia, or whether the remedies available in California
would be capable of providing Ms. Douez with comparable remedies
to what she might obtain in British Columbia.40
It is likely that Ms. Douez will rely on the Vita Foods limitations on
express choice of the proper law to negate the choice of California law.
Because the contract between Facebook and its users is a standard form contract
and is used in every jurisdiction, an argument that the choice is not
bona fide is unlikely to succeed. Lack of bona fides suggests an intention to
avoid the application of particular laws,41 and Facebook is unlikely to have
had the Privacy Act in mind in drafting a contract to be entered into on a
worldwide basis.
Could the choice be found to be illegal or contrary to forum public policy?
Illegality seems to be a long shot in light of the way in which s. 4 of the Privacy
Act is drafted. The provision does not render any contract clauses void,
as the dissent in the Supreme Court pointed out. But in light of the KWG
Panel’s description of the Privacy Act as “quasi-constitutional”,42 there is a
good chance that Ms. Douez might succeed in having the choice of law
clause nullified on grounds that it is contrary to forum public policy. It is
difficult to conceive of any Canadian court disagreeing with the characterization
of the Privacy Act as quasi-constitutional or holding that constitutional
or quasi-constitutional values do not represent forum public policy.
If the forum selection clause is held to be contrary to forum public policy,
then the Privacy Act will apply directly as a matter of forum public policy
and the action against Facebook will be determined by the domestic law