358 THE ADVOCATE
VOL. 76 PART 3 MAY 2018
Although Douez raises many questions, it does confirm the interpretation
of s. 11 of the CJPTA given by the British Columbia courts. Section 11 of the
CJPTA codifies the doctrine of forum non conveniens, the judicial discretion
to stay local actions over which a British Columbia court had territorial competence,
but assessment of the applicability and enforceability of a forum
selection clause falls outside of that provision, as a discrete inquiry. This
interpretation of the British Columbia CJPTA may pose problems in
Saskatchewan. That province also adopted the CJPTA, but Saskatchewan
courts have interpreted the equivalent provision65 as incorporating forum
The SCC decision did not, of course, dispose of Ms. Douez’s proposed
class action. The Douez litigation, which could include a proceeding in California
by Facebook, will continue to influence Canadian conflict of laws
principles on issues including:
• the relationship between choice of law and choice of forum
• the availability of damages for breach of a forum selection clause;
• the impact of a forum selection clause on recognition and enforcement
1. Douez v Facebook, Inc, 2014 BCSC 953 at para 21
2. Privacy Act, RSBC 1996, c 373.
3. Douez BCSC, supra note 1 at para 88.
4. Court Jurisdiction and Proceedings Transfer Act, SBC
2003, c 28 CJPTA.
5. Douez v Facebook, Inc, 2015 BCCA 279 Douez
6. Douez v Facebook, Inc, 2017 SCC 33 Douez SCC.
7. Of the seven justices who sat on Douez SCC, only
Abella J held that the forum selection clause was
8. Non-CJPTA provinces employ the common law.
9. See e.g. Marine Liability Act, SC 2001, c 6, s 46(1).
10. By reference, in part, to the Marine Liability Act provision.
Provisions in consumer protection statutes that
prevent consumers from waiving their rights under
such statutes were also referred to by the SCC. Such
provisions are, in the view of the authors, substantively
11. The KWG Panel plus the dissenting justices.
12. The CJPTA originated as a Uniform Act of the Uniform
Law Conference of Canada. It has been
enacted in BC (CJPTA, supra note 4), Saskatchewan
(The Court Jurisdiction and Proceedings Transfer Act,
SS 1997, c C-41.1 SK CJPTA), Yukon (Court Jurisdiction
and Proceedings Transfer Act, SY 2000, c 7)
and Nova Scotia (Court Jurisdiction and Proceedings
Transfer Act, SNS 2003 (2nd Sess), c 2).
13. See e.g. Preymann v Ayus Technology Corporation,
2012 BCCA 30 and Microcell Communications Inc v
Frey, 2011 SKCA 136 Microcell.
14. 2009 SCC 11 Teck.
15. As opposed to an approach that considered the
forum selection clause as part of the forum non convenien
s analysis, under the CJPTA factor “the fair
and efficient working of the Canadian legal system
as a whole”.
16. 2003 SCC 27 ZI Pompey.
17. 1969 1 Lloyd’s Rep 237 (Adm Div) The “Eleftheria”.
18. Brandon J listed the following factors at page 242:
(a) In what country the evidence on the issues of
fact is situated, or more readily available, and
the effect of that on the relative convenience and
expense of trial as between the English and foreign
Courts. (b) Whether the law of the foreign
Court applies and, if so, whether it differs from
English law in any material respects. (c) With
what country either party is connected, and how
closely. (d) Whether the defendants genuinely
desire trial in the foreign country, or are only
seeking procedural advantages. (e) Whether the
plaintiffs would be prejudiced by having to sue
in the foreign Court because they would (i) be