Law Times

Law Times • sepTember 4, 2017 Page 13 www.lawtimesnews.com CASELAW Supreme Court of Canada Conflict of Laws CONTRACTS Choice of law Privacy Act lacking clear language needed to override forum selection clause Defendant was American cor- poration headquartered in Cali- fornia operating social network- ing site which generated most of its revenues from advertising. Plaintiff was resident of British Columbia who was member of social networking site since 2007. As part of registration process, plaintiff had agreed to defen- dant's terms of use, which includ- ed forum selection and choice of law clause requiring that disputes be resolved in California accord- ing to California law. Defendant created new advertising product which used name and picture of site members to advertise com- panies and products to other members of site and externally. Plaintiff brought action against defendant when she noticed that her name and profile picture had been used in advertising product, alleging that her name and like- ness was used without consent for purposes of advertising in contravention of s. 3(2) of Privacy Act. Plaintiff also sought certifi- cation of her action as class pro- ceeding under Class Proceedings Act. Defendant brought prelimi- nary motion to stay plaintiff 's ac- tion on basis of forum selection clause. Chambers judge refused to stay action, finding that Priva- cy Act overrode clause and that it provides strong reasons not to en- force it. Court of Appeal reversed this decision, finding that clause was enforceable and that plaintiff failed to show strong cause not to enforce it. Plaintiff appealed. Ap- peal allowed. Forum non conve- niens test adopted in Court Juris- diction and Proceedings Transfer Act was not intended to replace common law test for forum selec- tion clauses. Case was to be re- solved under strong cause analy- sis, and analysis was to take into account different considerations relevant to consumer context. Section 4 of Privacy Act lacked clear language needed to override forum selection clauses. Plaintiff met burden of establishing that there was strong cause not to enforce forum selection clause. There was gross inequality of bargaining factors between par- ties and case involved plaintiff 's statutory privacy right, which had quasi-constitutional status. Public policy concerned weighed heavily in favour of strong cause, as did secondary factors of inter- ests of justice and comparitive convenience and expense of liti- gating in alternate forum. Forum selection clause was unenforce- able and chambers judge's order dismissing defendant's applica- tion to have British Columbia Su- preme Court decline jurisdiction was restored. Douez v. Facebook, Inc. (2017), 2017 CarswellBC 1663, 2017 CarswellBC 1664, 2017 SCC 33, 2017 CSC 33, McLach- lin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gas- con J., and Côté J. (S.C.C.); re- versed (2015), 2015 CarswellBC 1671, 2015 BCCA 279, Bauman C.J.B.C., Lowry J.A., and Goepel J.A. (B.C. C.A.). Federal Court of Appeal Immigration and Citizenship CITIZENSHIP Citizenship by birth Diplomatic immunity required to trigger s. 3(2)(a) of Citizenship Act Applicant's parents were ex- posed as foreign agents after entering Canada decades earlier and assuming identities of two deceased Canadians. In 2010 parents were returned to Rus- sia from United States via spy swap and applicant's passport and American citizenship were revoked. Applicant moved to Russia and amended his birth certificate to his parents' true identities to obtain Certificate of Canadian Citizenship. Registrar cancelled certificate on ground that applicant's parents were not lawfully Canadian citizens or permanent residents and were employees or representatives of foreign government for pur- poses of s. 3(2)(a) of Citizenship Act. Applicant's application for judicial review was dismissed on basis that anyone who moved to Canada with explicit goal of es- tablishing life to further foreign intelligence operation, in Cana- da or another country, was do- ing so in service of or as employ- ee or representative of, foreign government. Registrar found that scenario was captured by s. 3(2)(a). Applicant's appeal to Federal Court was dismissed. Applicant appealed. Appeal al- lowed. There was no breach of procedural fairness as applicant was able to meet case against him with information contained in notification letter. Registrar's interpretation of paragraph 3(2) (a) was unreasonable. At no time did applicant's parents enjoy im- munity. Immunity is required to trigger application of paragraph 3(2)(a). Purpose of paragraph was shown by its legislative his- tory. Definition of "employee[s] in Canada of a foreign govern- ment" includes only those who enjoy diplomatic privileges and immunities under Vienna Con- vention on Diplomatic Rela- tions. Paragraph 3(1)(a) applied and gave applicant Canadian citizenship. Vavilov v. Canada (Citi- zenship and Immigration) (2017), 2017 CarswellNat 2791, 2017 FCA 132, David Stratas J.A., Wyman W. Webb J.A., and Mary J.L. Gleason J.A. (F.C.A.); reversed (2015), 2015 Carswell- Nat 3740, 2015 CarswellNat 4747, 2015 FC 960, 2015 CF 960, B. Richard Bell J. (F.C.). Natural Resources OIL AND GAS Constitutional issues National Energy Board failing to apply required constitutional test of functional integration Subsection 12(1) of National En- ergy Board Act authorizes Na- tional Energy Board to inquire into any matter where circum- stances may require Board, in public interest, to make order or decision. Applicant brought ap- plication alleging respondent's proposed pipeline should be subject to Board's jurisdiction. Board concluded applicant had not established prima facie case that pipeline was federal work or undertaking within s. 92(10) (a) of Constitution Act, 1867, so Board had no jurisdiction. Applicant appealed. Appeal al- lowed. Having defined public interest wholly in terms of ques- tion of constitutionality, which is question of law and jurisdic- tion, Board triggered correct- ness standard of review. Board erred in its appreciation and application of prima facie test in determining its mandate. Board evaluated substance of evidence as it would in full jurisdictional hearing, giving rise to error of law. Board did not ask whether arguable case had been made out, it answered underlying question. Board relied on tan- gential factors to displace what it appeared to have concluded was otherwise prima facie case. Board also erred in its legal anal- ysis of constitutional question. Board failed to define undertak- ing in purposive terms, and did not apply required constitution- al test of functional integration. Sawyer v. Transcanada Pipeline Limited (2017), 2017 CarswellNat 3405, 2017 FCA 159, D.G. Near J.A., Richard Boivin J.A., and Donald J. Ren- nie J.A. (F.C.A.). Tax INCOME TAX Administration and enforcement New evidence not substantiating taxpayer's bald assertion CRA blocked revival of its corporate charter Taxpayer company appealed from reassessments under In- come Tax Act after losing its corporate charter such that it had no legal status to initiate proceed- ings. Taxpayer's request for three months extension was granted by Tax Court of Canada, but it failed to revive charter within that time period. After conference call hearing with parties, Tax Court of Canada refused request for further extension on basis that insufficient efforts had been de- ployed by taxpayer to advance matter. Tax Court of Canada quashed appeals. Taxpayer ap- pealed and brought motion for leave to file new evidence. Mo- tion dismissed; appeal dismissed. It was clearly open to Tax Court of Canada on record before it to make determination as to tax- payer's insufficient efforts. Tax- payer argued that decision was made on basis of inadequate in- formation insofar as CRA failed to fairly and candidly disclose all relevant information about its role in Ontario Minister of Finance's refusal to consent to re- vival of company. 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