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Rights and Freedoms? Or in an appeal case Appeal dismissed; conviction upheld.

This is the case study.

COURT OF APPEAL FOR ONTARIO

CITATION: Loan Away Inc. v$.$ Facebook Canada Ltd$.,2021$ ONCA $432$

DATE: $20210618$

DOCKET: C$67908$

BETWEEN

Fairburn A$.$C$.$J$.$O$.,$ Harvison Young and Jamal JJ$.$A$.$

Loan Away Inc.

and

Facebook Canada Ltd$.$ and Facebook, Inc.

Applicant$/$Responding Party $($Appellant$)$

Respondents$/$Moving Party. $($Respondent$)$

Michael $$rampton$,$ for the appellant

Miranda Spence, for the respondent

Philip Underwood, for Facebook Canada Ltd$.,$ making no submissions

Heard: June $7,2021$ by video conference

On appeal from the order of Justice Andra Poollak of the Superior Court of Justice, dated December $16,2019.$

Jamal J$.$A$.$:

IntroductionMichael Crampton, for the appellant

Miranda Spence, for the respondent

Philip Underwood, for Facebook Canada Ltd$.,$ making no submissions

Heard: June $7,2021$ by video conference

On appeal from the order of Justice Andra Polllak of the Superior Court of Justice, dated December $16,2019.$

Jamal J$.$A$.$:

Introduction

judge erred in refusing the adjournment and staying its application.

$[2]$ For the reasons that follow, I would dismiss the appeal.

Background

$[3]$ Loan Away is a commercial online lender doing business across Canada. A large part of its business came from advertising on the Facebook Service.

County and under California law:

and what laws will apply.

provisions. $[$Emphasis added.$]$

"Commercial Terms" providing substantively the same forum selection and choice of law clauses.

injunctive relief requiring Facebook Canada to accept Loan Away's advertising and for a damages reference.

that Loan Away sought.

as against it$.$

$[9]$ Around the same time, Facebook served its notice of motion asking the court to stay Loan Away's application as against it based on the forum selection clause.

leading up to the stay motion. On the Friday before the return of the stay motion, Facebook suspended Loan Away's Facebook business page.leading up to the stay motion. On the Friday before the return of the stay motion, Facebook suspended Loan Away's Facebook business page.

noted that Loan Away's application did not concern this issue.

the parties, or the interests of justice; and $(3)$ the application sought no relief as against Facebook Canada. She therefore stayed the application as against Facebook.

Issues

$[13]$ Loan Away claims that the motion judge erred by refusing to adjourn the stay motion and in granting the stay.

Discussion

Issue #$1$: Did the motion judge err in refusing to adjourn the stay motion?

decided the stay motion on an incomplete record.

$[15]$ I do not accept this submission.

after considering all relevant factors: Romanko v$.$ Aviva Canada Inc., $2018$ ONCA $663,$ at para. $4$; Estrada v$.$ Estrada, $2016$ ONCA $697,$ at para. $2.$

Line N$.$V$.$

$[2003]1$ S$.$C$.$R$.450,$ at para. $31.$ I therefore see no basis for this court to intervene with the motion judge's exercise of discretion to deny the adjournment.

Issue #$2$: Did the motion judge err in granting a stay based on the forum selection clause?

$[18]$ Loan Away's second ground of appeal asserts that the motion judge erred in enforcing the forum selection clause and staying Loan Away's application.

$[19]$ The following legal principles govern the enforcement of a forum selection clause in the commercial or non$-$consumer context.

selection clauses are generally enforced to hold sophisticated parties to their contractual bargain: Douez v$.$ Facebook, Inc., $2017$ SCC $33,[2017]1$ S$.$C$.$R$.751,$ at para. $1.$

$[21]$ Courts apply a two$-$step approach in determining whether to enforce a forum selection clause and stay an action brought contrary to it:

$28-29$; Pompey, at para. $39.$