Appellate Cases 2017 – Thematic Review

With 2017 behind us, we identify several trends in appellate jurisprudence that will be relevant to in-house counsel, including those impacting privacy rights, class proceedings and cases that touch our daily use of technology.

We all do it. Sign up for any online services—Spotify, Snapchat, Twitter, you name it—and there's a box to check agreeing to terms and conditions. Do we take the time to read them before checking the box and moving on? More importantly, do those terms and conditions, many of which involve choice of law and forum selection clauses, bind consumers? The Supreme Court of Canada suggests they may not.

Contract Interpretation: Consumer agreements and standard form contracts up in the air

In Douez v. Facebook,1 the Court refused to enforce foreign forum selection and choice of law clauses in an online consumer agreement, otherwise known as a contract of adhesion. Instead, the court certified a class proceeding involving the alleged breach of provincial privacy legislation and allowed the action to proceed in British Columbia.

The case raises doubt about the enforceability of forum selection clauses in consumer agreements, particularly those in the online “click-wrap” contracts used by most businesses to sell goods or to provide services on the internet. By inference, there is now some doubt about the enforceability of other standard form contract clauses that limit remedies available to consumers, particularly provisions relating to indemnity, disclaimer and limitation of liability.

At the very least, Douez suggests a re-examination of the enforceability of forum selection and choice of law clauses in consumer agreements, particularly those that are concluded online. Those provisions may no longer protect commercial enterprises from multi-jurisdictional litigation the way we once thought.

We have been told to think that email communication is about as private as the message on the back of a postcard—but what about text messaging?

The approach to consumer agreements stands in contrast to the attitude toward agreements negotiated freely between sophisticated parties, including releases that purport to settle litigation. One such example is the Ontario Court of Appeal's decision in Biancaniello v. DMCT.2

Biancaniello involved the scope of a mutual release intended to settle ongoing litigation relating to the payment of fees. The Court of Appeal held that the mutual release barred later litigation arising from the...