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Internet - Instagram. Tatiana Gorenstein v. Meta Platforms, Inc.
In Tatiana Gorenstein v. Meta Platforms, Inc. (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal (though on different grounds that the lower court), here brought against "an order under rule 208" FCR ['Preliminary Matters - No attornment to jurisdiction'], "permanently staying the appellant’s action".
Here the court canvasses the 'forum selection clause' test:[7] The enforceability of a forum selection clause is assessed against a two-part test. The party seeking a stay must establish that the clause is "“valid, clear and enforceable and that it applies to the cause of action before the court”" (Douez v. Facebook, Inc., 2017 SCC 33 at paras. 28-29 [Douez], citing Preymann v. Ayus Technology Corp., 2012 BCCA 30 at para. 43). If the validity of the clause is established, the onus shifts to the plaintiff to show strong reasons why the court should not enforce the forum selection clause.
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[19] Further, additional considerations are engaged in assessing the requirements of clarity and enforceability in the context of internet-based contracts of adhesion. In Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34 [Dell], the Supreme Court established principles that guide the enforceability of an arbitration clause referenced in an internet-based contract of adhesion, noting that "“[a]ccess to the clause in electronic format should be no more difficult than access to its equivalent on paper”" (Dell at paras. 99–101). This case, despite it's upholding the order below on different reasons, may be useful to anyone considering suing Instagram.
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