When Torstar and Facebook entered into a news licensing agreement in 2021, the arrangement was reasonably straightforward. Torstar would supply content and Facebook would pay for it. Then Ottawa passed the Online News Act, Meta ended the agreement, and Torstar took the position that money was still owed for the remaining term. It was the sort of commercial disagreement that courts hear all the time, except that Meta wanted it heard in California. The Canadian newspaper company had brought its case in Ontario, but Meta argued that its standard online terms required the parties to take their fight elsewhere.
The dispute over where to litigate reached Justice Des Rosiers of the Ontario Superior Court. In April 2026, the judge refused Meta's request to dismiss or stay the proceeding in favour of California. The reasons in Torstar Corporation v. Meta Platforms, Inc., 2026 ONSC 2038, are worth reading for the way they examine the actual business relationship. Torstar had agreed to license news to Meta. It hadn't simply signed up to advertise on Facebook, and there was no clear basis for importing the forum provisions in Meta's user and commercial terms into that separate licensing arrangement. The court also found that the Canadian public policy issues raised by the Online News Act would have provided strong cause not to enforce the clauses, even if they had applied. None of this decided whether Meta had been entitled to terminate the deal or whether Torstar was owed anything. That fight remained.
There's a certain irony in two substantial businesses having to litigate over where to litigate before they can argue about a contract that was supposed to make life easier for both of them. Yet it's difficult to think of a more ordinary problem in modern commerce. Canadian companies run advertising campaigns, store documents, manage payroll, process payments and communicate with customers through platforms whose contracts were drafted somewhere else. A business can spend years operating entirely within Alberta or Ontario while maintaining relationships governed, at least on paper, by California law and subject to the jurisdiction of California courts. The arrangement seems harmless enough when the service is working.
Canada's courts were having arguments about legal geography long before anybody could accept a contract with a mouse click. The country's federal structure made the problem almost inevitable. A debt incurred in Alberta might be pursued against someone living in British Columbia. An accident in Saskatchewan might involve a manufacturer in Ontario. A Canadian business could own property and employ people on both sides of the border while being sued in a court far from its head office. Confederation gave the provinces substantial authority over property, civil rights and the administration of justice, but it didn't create a single system of provincial private law. Most provinces inherited the English common law. Quebec retained its civilian tradition. The courts had to decide how those different legal systems would deal with transactions and injuries that refused to remain in one place.
For much of Canada's early legal history, the common law approached those questions from the perspective of territory and sovereignty. The old English rules for recognizing judgments from outside the jurisdiction were particularly cautious. Decisions such as Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, and Emanuel v. Symon, [1908] 1 K.B. 302, reflected a world in which the defendant's presence, residence or submission to the foreign court mattered considerably. A judgment made somewhere else couldn't necessarily be treated as enforceable simply because a court there had issued it. These principles influenced how Canadian courts understood judgments from other provinces, even though Alberta and British Columbia were parts of the same country rather than competing sovereign states. The law had been constructed around the physical reach of courts, and geography was still doing much of the work.
The older rules about which law applied to a wrong were hardly more straightforward. In McLean v. Pettigrew, [1945] S.C.R. 62, the Supreme Court considered a motor vehicle accident in Ontario followed by an action in Quebec. The case reflected the influence of an English approach associated with Phillips v. Eyre (1870), L.R. 6 Q.B. 1, under which a tort committed elsewhere faced a form of double actionability analysis. A court might have jurisdiction to hear the dispute but still need to decide whether the wrong satisfied requirements associated with both the place of the lawsuit and the place of the conduct. The rules were especially awkward in a country where crossing a provincial boundary didn't feel like entering another country, but could change substantive rights and the legal framework governing the claim.
The first substantial movement away from that territorial instinct appeared in a case about something considerably less glamorous than social media. In Moran v. Pyle National (Canada) Ltd., [1975] 1 S.C.R. 393, an electrician was killed in Saskatchewan while removing a light bulb manufactured by an Ontario company. The manufacturer didn't operate in Saskatchewan, but its product had arrived there through ordinary commercial channels. The Supreme Court held that Saskatchewan could hear the claim where injury from a carelessly manufactured product was reasonably foreseeable in that province. Justice Dickson's reasons recognized that modern commerce made it increasingly artificial to confine a manufacturer's legal exposure to the place where its factory happened to be. The judgment was delivered in 1973, more than 50 years before the Torstar dispute, and already reflected a concern that would become central to Canadian conflicts law. The location of the defendant's operations couldn't always tell the whole story.
In 1990, another Alberta transaction gave the Supreme Court the opportunity to reconsider the entire approach to provincial judgments. Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077, began with mortgages on Alberta property. The borrower moved to British Columbia, the mortgages went into default and the lenders obtained judgments in Alberta after the borrower failed to defend the proceedings. They then sought to enforce those judgments in British Columbia. Under the older common law understanding, the borrower's absence from Alberta and failure to submit to that court posed a serious obstacle. Justice La Forest, writing for a unanimous Supreme Court, thought the traditional restrictions had become unsuitable to Canada's federal arrangements. Mobility between provinces and the realities of national commerce required greater recognition of judgments properly made elsewhere in the country. The Court used the idea of a real and substantial connection to explain why the Alberta judgments could be enforced in British Columbia, notwithstanding the borrower's departure from Alberta.
Morguard is often remembered for the connecting test, but the real change was in its understanding of Canada. The Court treated the country's constitutional structure and economic integration as reasons not to regard a judgment from a neighbouring province with the same suspicion traditionally reserved for some foreign judgments. It wasn't giving every Canadian court unlimited jurisdiction. A court still had to exercise authority on a legitimate and fair basis. What changed was the willingness to recognize that provincial borders weren't meant to provide an easy escape from obligations properly determined elsewhere.
The implications surfaced quickly. In Hunt v. T&N plc, [1993] 4 S.C.R. 289, a British Columbia asbestos action ran into Quebec legislation restricting the removal of business records from that province. The Supreme Court held the Quebec blocking law constitutionally inapplicable to the litigation in British Columbia, giving the federal dimensions of the Morguard reasoning much sharper effect. Around the same time, Amchem Products Inc. v. British Columbia (Workers' Compensation Board), [1993] 1 S.C.R. 897, arose from asbestos proceedings begun in Texas by claimants connected to British Columbia. The defendants had obtained an injunction in British Columbia intended to stop the Texas lawsuits. The Supreme Court set it aside, explaining the restraint Canadian courts should exercise before interfering with proceedings elsewhere and the significance of whether another forum is clearly more appropriate. The 2 cases showed that a more integrated legal world required both greater willingness to recognize other courts' decisions and care about when one court should tell another court what it can do.
Then came Tolofson v. Jensen, [1994] 3 S.C.R. 1022. The consolidated appeals concerned motor vehicle accidents and competing provincial laws. In one, an accident in Saskatchewan led to proceedings in British Columbia, where a different limitation period offered an advantage that would not have existed had the action been brought where the accident occurred. The Supreme Court abandoned the old common law tort choice rules in favour of the general principle that the substantive law of the place where the tort occurred governs. The Saskatchewan limitation rule applied to the Saskatchewan accident. There was no suggestion that a litigant could necessarily import the more favourable substantive law of a home province simply by choosing to sue there. The decision dealt with applicable law, not merely the authority of a court to hear a case, and that distinction is easily lost when people talk loosely about jurisdiction.
Quebec's path was different again. The Civil Code of Québec, which came into force on January 1, 1994, included an extensive body of private international law in Book Ten. It addressed the law applicable to contractual obligations, the jurisdiction of Quebec authorities and the recognition of decisions made elsewhere. Article 3111 recognizes the parties' choice of governing law for a juridical act, subject to the Code's qualifications. Article 3117 protects consumers against losing specified mandatory protections through a contractual choice of law. Article 3149 gives Quebec courts jurisdiction over certain consumer and employment disputes when the consumer or worker resides or is domiciled there, and prevents the other party from setting up that person's waiver of the protection against them. Quebec didn't simply adopt every step of the Supreme Court's common law development. The Canadian history contains a legislative civilian strand running alongside the common law cases, a difference that becomes quite important when Facebook's terms reach a Quebec courtroom.
Canadian legislatures outside Quebec eventually responded to the courts' changing approach as well. British Columbia enacted the Court Jurisdiction and Proceedings Transfer Act in 2003, bringing it into force in 2006. It gave statutory form to circumstances in which a British Columbia court has territorial competence, including the requirement for a real and substantial connection, and provided machinery for proceedings that properly belong elsewhere. Rather than relying entirely on inherited procedural concepts, British Columbia wrote a modern framework into legislation. There still wasn't a single conflicts statute governing every Canadian province, and that remains part of the complexity.
The Supreme Court also began to consider what happens when the judgment comes from a country outside Canada. In Beals v. Saldanha, 2003 SCC 72, Canadians who had been sued in Florida faced enforcement of a Florida default judgment in Ontario. The majority extended the more generous approach to recognition where the original foreign court had a real and substantial connection to the dispute, while preserving narrow defences concerning fraud, natural justice and public policy. The result wasn't an invitation to relitigate every foreign case in a Canadian court. Recognition and enforcement had to remain meaningful if international transactions were to have any security at all. A Canadian defendant's decision not to participate in proceedings elsewhere could therefore have serious consequences at home.
By 2012, the Supreme Court was looking for more predictable boundaries around a Canadian court's original jurisdiction. In Club Resorts Ltd. v. Van Breda, 2012 SCC 17, cases involving injuries suffered at Cuban resorts required the Court to explain when Ontario could hear claims with substantial foreign connections. The Court identified presumptive connecting factors for tort proceedings, including the defendant's residence, carrying on business in the province, a tort committed there and a contract connected to the dispute made there. The list wasn't closed, but the Court wanted objectively identifiable connections rather than an impressionistic balancing exercise that changed with every set of facts. It also cautioned that a website merely being accessible in a province doesn't, on its own, establish that its operator carries on business there. The distinction seemed particularly important by then, when a company could appear on every Canadian computer screen without necessarily having a physical operation in every province.
The last stage of the problem can arise after the lawsuit is over. In Chevron Corp. v. Yaiguaje, 2015 SCC 42, Ecuadorian judgment creditors sought recognition and enforcement in Ontario against Chevron and its Canadian subsidiary. The Supreme Court held that an Ontario court didn't need a new real and substantial connection between Ontario and the underlying dispute simply to hear an action to recognize and enforce the Ecuadorian judgment. That ruling was about jurisdiction to entertain enforcement proceedings, not a final conclusion that the creditors could collect from every asset of every related corporation. Questions about separate corporate personality, available assets and the actual scope of enforcement remained distinct.
Against that history, today's disputes over online terms begin to look less like a wholly new legal problem. Canadian law spent decades dealing with debts, products, accidents, judgments and corporate records that crossed provincial or national borders. The internet has multiplied the relationships and made the contracts much easier to enter, but it hasn't erased the questions that animated those earlier cases. A company can do business in several places, agree to one set of laws and end up litigating in another. What has changed is the frequency with which ordinary customers find themselves caught in arrangements once associated mainly with banks, manufacturers and substantial commercial enterprises.
For consumers, the ritual is even more familiar. There are terms of service to accept before posting a photograph, ordering a book or creating an account. The language is long, the service is immediately available, and almost nobody is going to negotiate the dispute resolution clause with Facebook before uploading pictures from the weekend. The companies know that. It's part of how standardized online contracting works, and in many respects it has to work that way. A platform serving millions of customers can't negotiate a bespoke agreement with everyone who opens an account. The trouble begins when the apparent simplicity of joining a service is mistaken for simplicity in the contractual relationship.
Facebook had already been before the Supreme Court of Canada over precisely that issue. In Douez v. Facebook, Inc., 2017 SCC 33, a British Columbia resident alleged that Facebook had used her name and photograph in its Sponsored Stories advertising product without the consent required under the province's Privacy Act. Deborah Douez pursued a proposed class action in British Columbia, and Facebook invoked the clause in its terms directing disputes to California. One could understand the attraction of that clause from Facebook's perspective. It operated an international service and wanted predictability about where it could be sued. The consequences for someone bringing a local statutory privacy claim were rather different.
The Supreme Court refused to enforce the forum clause in the circumstances, although the judges who reached that result didn't all take the same route. The joint reasons of Justices Karakatsanis, Wagner and Gascon placed considerable weight on the disparity between an individual user and the platform, the nature of the privacy rights at stake and the public interest in having those claims heard in British Columbia. Justice Abella agreed with the result on a different analysis. Three judges dissented. The judgment wasn't a general declaration that clicking to accept an online contract has no legal effect. Facebook's chosen forum was displaced in a particular consumer relationship involving a statutory privacy claim, against a background of exceptionally unequal bargaining power.
It would have been tempting to assume that Facebook had lost a lasting battle over its choice of California courts. Four years later, however, the Ontario Court of Appeal reached the opposite practical result in Loan Away Inc. v. Facebook Canada Ltd., 2021 ONCA 432. Loan Away was a Canadian online lender whose business depended heavily on Facebook advertising. When its advertising was suspended, the company sought relief in Ontario. Facebook pointed to its terms, which called for disputes to be resolved in California under California law. Loan Away had accepted that the forum clause was valid, clear and applicable, so the litigation turned on whether there was sufficiently strong cause to disregard it. The Ontario Court of Appeal found there wasn't.
The commercial setting mattered, but so did the way the parties had framed their dispute. Loan Away wasn't pursuing the kind of statutory privacy claim before the Court in Douez, and the applicability of the clause itself wasn't contested. An online business that relies on a large platform for customers may have limited practical leverage when signing up, but that doesn't automatically make it equivalent to an individual consumer pursuing a local privacy right. Facebook obtained the stay it wanted, and Loan Away's grievance over its advertising didn't proceed in the Ontario court.
There was also the Quebec litigation involving Romain Gagnon, who challenged restrictions affecting his Facebook accounts. In Gagnon v. Meta Platforms Inc., 2024 QCCA 1609, Quebec's Court of Appeal upheld the refusal to hear the case in Quebec in light of the applicable commercial forum terms favouring California. The Supreme Court of Canada declined leave to appeal in July 2025. That refusal of leave didn't turn the Quebec judgment into a new national rule, but the result was another reminder that the outcome of Douez cannot simply be applied to everyone who has a disagreement with Facebook. Quebec's private international law rules also have features of their own, making comparisons across provincial borders less tidy than people sometimes assume.
That history helps explain why the Torstar ruling is interesting. Meta had a successful Ontario Court of Appeal decision involving its online terms and a commercial user. Torstar was another commercial party. But Justice Des Rosiers wasn't persuaded that Meta's general user agreements governed the separate business of paying a publisher for news content. The agreement actually being litigated was a News Innovation Agreement. It had its own provisions about payments, termination and the consequences of legislative changes. The wording and purpose of the various documents mattered more than the broad proposition that Meta generally requires its users to litigate in California. A company can win an argument about a standard clause in one contract and lose an argument about the reach of that clause in another.
The attention given to these cases tends to fall on the destination, usually California. That can obscure some of the less glamorous difficulties. A contractual clause choosing California law isn't necessarily the same as a clause requiring a lawsuit in California. A foreign court may hear a matter while applying another jurisdiction's law. An agreement might instead require arbitration, which can move the dispute out of the ordinary court system altogether. These aren't interchangeable arrangements, even though they're often placed together in the same pages of terms that someone accepts while trying to finish registration.
The distinction can become particularly costly with arbitration. In Uber Technologies Inc. v. Heller, 2020 SCC 16, an Uber Eats driver who wished to pursue employment standards claims faced contract terms requiring mediation and arbitration in the Netherlands. The upfront administrative cost was approximately US$14,500, before legal fees or the expense of participating. That sum represented most of the driver's annual income. The Supreme Court held the arbitration provision unconscionable. The Court was dealing with an arbitration agreement and the specific doctrines governing its validity, rather than an ordinary Facebook forum clause, but the practical difficulty is hard to miss. A dispute resolution process can exist beautifully on paper while being financially inaccessible to the person expected to use it.
There are perfectly legitimate reasons for businesses to choose a single place to settle disputes. The company may operate in several countries, deal with different legal systems and need some consistency in how its contracts are interpreted. For a negotiated commercial contract, a predictable forum may be one of the things the parties value most. Courts have long recognized that interest, including in Z.I. Pompey Industrie v. ECU-Line N.V., 2003 SCC 27, and Momentous.ca Corp. v. Canadian American Association of Professional Baseball Ltd., 2012 SCC 9. The controversy in online contracting arises partly because the agreement is frequently presented as a condition of using something people or businesses have come to depend on. A term that is convenient for a global supplier may be ruinously inconvenient for the customer facing a comparatively modest claim.
And there are disputes in which no contractual forum selection clause resolves the problem at all. When an article published overseas allegedly damages someone's reputation in Canada, the geography is not improved by the fact that both people have internet access. In Haaretz.com v. Goldhar, 2018 SCC 28, a Canadian businessman sued an Israeli newspaper in Ontario over an online article concerning his management of an Israeli soccer team. Although Ontario had jurisdiction, a majority of the Supreme Court concluded that Israel was the more appropriate place for the proceeding. The people, witnesses and events connected to the story mattered. The fact that the publication could be read in Ontario didn't settle where the dispute belonged. The judges also disagreed about aspects of the framework, which says something about the difficulty of fitting online activity into territorial legal systems.
These jurisdictional fights can seem rather remote from everyday business until a service provider disables an account. Think of a small Canadian retailer that takes most of its orders through an American platform, keeps its customer history there and pays for advertising through another account controlled by the same corporate group. If the relationship breaks down, the practical dispute isn't only about damages. It may concern access to customer information, orders that remain unfulfilled, payment records and the ability to keep trading. The retailer's immediate concerns are local and commercial. Its accepted agreements may direct some of the resulting claims abroad, specify foreign law or require a form of arbitration it never expected to use.
Even identifying the agreement can be a challenge. Online terms change, sometimes with notice and sometimes through mechanisms a customer barely registers. A company may use separate terms for its ordinary account, advertising services, payment processing and special business arrangements. The person who clicked to accept the original agreement may no longer work there. A dispute that initially appears to concern the supplier's conduct can become entangled in questions about which terms were in force, what was accepted and whether a later document changed anything material. Lawyers are accustomed to arguing about the words in contracts. With online accounts, locating the relevant words can itself become part of the work.
The result isn't a convincing argument for abolishing these clauses. Nor does the case law support a comforting assumption that a Canadian court will rescue every Canadian plaintiff from an inconvenient foreign forum. Douez, Loan Away, Gagnon and Torstar point in different directions for understandable reasons. Their differences reflect the actual relationships, claims and agreements before the courts, as well as the distinct legal frameworks operating across the country. In that respect, the decisions are probably a more accurate picture of online commerce than any sweeping statement about the enforceability of website terms.
There is something oddly disproportionate about the way these relationships begin and end. Access to a platform can be granted in moments, with no bargaining and very little ceremony. Years later, a disagreement over an advertisement, a news licence or a suspended account may begin with expensive litigation about which court is even allowed to hear it. By then, the convenience that made the platform attractive has usually vanished. The contract is suddenly receiving more attention than anyone gave it when the relationship was going well.
For Canadian businesses, that may be the most revealing part of the Meta cases. Technology has made it easy to do business across borders without feeling as though anyone has left the country. The contracts have never shared that illusion.