Facebook’s choice of forum clause was overridden by B.C.’s Privacy Act

Most people in North America use Facebook. In Canada, over 70% are said to visit the site at least a few times each week.

When you create a Facebook account, or any online account, you agree to the “Terms and Conditions”. If you’re like many, you probably don’t ACTUALLY read those terms and conditions. Who has the time and interest to do so?

As a Facebook user, have you ever noticed that “sponsored stories” containing pictures and names of other users tend to pop up in your News Feed?

How would you feel if your picture and name popped up in a stranger’s feed?

Douez v Facebook involved the request to commence a class-action against Facebook as a result of these “sponsored stories”. Douez, like many other Facebook users, agreed to the Terms and Conditions of starting a Facebook account, and never felt the need to worry about what they actually said.

It was only when Douez wanted to start this class-action that the Terms and Conditions became an issue. Douez claimed that sharing her name without her consent violated British Columbia’s Privacy Act. Facebook argued for the action to be stayed on the basis that it shouldn’t have been filed in B.C.

Why would Facebook claim B.C. wasn’t the appropriate jurisdiction to file Douez’s action? Shouldn’t this be heard in B.C., especially since Douez lives in B.C.?

Not necessarily. Facebook’s Terms and Conditions contain a forum selection clause saying that all litigation involving Facebook and a user will fall under the jurisdiction of California courts. By accepting Facebook’s Terms and Conditions, you’re also accepting this clause.

This case made it to the Supreme Court of Canada where the Court asked: which forum has the jurisdiction to hear this? California, or B.C.? To answer, the Court considered issues like public policy, unequal bargaining power, and privacy.

In the decision, the Court declined to enforce the forum-selection clause, and allowed (in a 5 – 2 split decision) the class-action to commence with B.C. as the appropriate forum.

Why does this matter to you?

Because this decision creates uncertainty in the law.

Contracts contain terms and conditions to which the parties agree. For example, a New Brunswick seller may agree to sell goods to a B.C. buyer on condition that New Brunswick be the forum where any disputes between them are addressed. Depending upon the issue, this could be very detrimental to you and your business, especially if you’d prefer not to travel across the country to argue your case.

After this decision, it will be difficult to predict whether a forum selection clause in a contract will be enforced. This example of a Court ignoring a forum selection clause and allowing a different forum shows that a Court won’t always enforce the agreed conditions. Be sure to consider this when you draft or sign your next contract.

For more information on forum selection clauses and contracts, please contact us. 

Remy Rosinski, Student-at-Law

DIY Family Law: The Benefits of "Legal Coaching"

A large portion of legal matters in Canada fall into the category of “family law”. Some of these include marriage, cohabitation and separation agreements, divorce, applications for custody, access and division of property. Along with these legal matters comes the need for legal help. However, while it would be beneficial, legal help doesn’t always have to involve a lawyer by your side from start to finish.

The concept of legal coaching is similar to coaching in sports. Just as a team’s coach advises the team on necessary moves to make, a lawyer will advise a client. In this position, the lawyer provides support and guidance to the client who can then seek to fulfill those recommendations on their own time.

The less work asked of the lawyer, the less the client pays in legal fees.

For example, a lawyer may tell their client what forms and paperwork they will need to fill out to file a Petition for Divorce. Leaving this work to the client instead of the lawyer can cut the client’s bill significantly.

If you’re hesitant to hire a lawyer because of the cost, consider legal coaching. Simply getting guidance from a lawyer from time to time instead of from start to finish might save you a lot of money.

For more information on legal coaching and what we offer at McMath Law, feel free to contact us.

Remy Rosinski, Student-at-Law

It's a hot day and I see a dog in a car with closed windows. Can I break the windows?

Just as humans can get heat stroke, dogs can too. This raises the question: does someone have a right to break the windows?

Probably not.

Chances are high that breaking someone's window to relieve the panting dog inside will end in a claim for damages to that vehicle. The heroic recognition is not worth it, especially when you could have taken a different route to help the dog.

Your best option is to call the New Brunswick SPCA at 1-877-722-1522. Animal Protection Officers have a right to use force to enter a vehicle if they believe an animal is deprived of reasonable protection in a potential situation of neglect. 

If you are a dog owner, never leave your dog in a vehicle on a hot day. Doing so is considered breaking a law under the NBSPCA Act.

Other provinces have adopted similar legislation. For example, a dog owner in Nova Scotia previously received a fine for leaving 2 dogs in a vehicle. Certain situations may even trigger laws set out in the Criminal Code.

Regardless of the legal implications, it is not wise to leave your dog in a car on a hot day. 

Remy Rosinski, Student-at-Law

Limitation Periods – the law won’t wait for you

If you’ve ever considered bringing someone to Court, for example, if you were hurt after slipping and falling on their poorly maintained property, make sure you first look over your province’s statute of limitations. There’s a good chance that you won’t succeed if the fall occurred over two years ago.

As of 2009, the general rule in New Brunswick is that a civil claim cannot be brought to court if it has been over two years since the claimant “discovered” (or, became aware of) the injury, loss or damage.

It’s possible that a claimant didn’t realize a legal wrong when it occurred. For example, if the claimant was a minor at the time.

In this situation, the second aspect of limitations comes into play, allowing fifteen years from the day the wrong occurred for a claimant to “discover” the harms caused by the injury, loss or damage.

Common situations where limitations may arise include claims such as spousal support, personal injury, contract, debt and other damages.

Before 2009, the limitation period for a civil claim in New Brunswick allowed six years following discovery. Now, it is two years. With such a significant change in time, it's best that you act on a legal matter as early as possible.

For more information on limitation periods and litigation, please contact us. 

Remy Rosinski, Student-at-Law