In Gorenstein v. Meta Platforms Inc., 2025 FC 410, released on March 5, Justice Negar Azmudeh held that while there was inequality of bargaining power between the plaintiff and Meta, she did not suffer unconscionability.
“While I sympathize with the additional expense and inconvenience the Plaintiff will likely face by pursing her claim in California, I find that there is no strong cause to avoid enforcing the forum selection clauses,” the judge wrote.
The self-represented plaintiff, Tatiana Gorenstein, owns and operates a luxury goods resale and consignment business. The plaintiff uses an Instagram account to engage in business and promote sales.
Gorenstein filed a claim against Meta seeking damages for loss of income after her Instagram account was suspended.
Meta brought a motion to permanently stay the action on the basis that Instagram’s terms of use and "ad terms” provide that any disputes must be resolved in the U.S. District Court for the Northern District of California or a state court in San Mateo County in California.
Meta cited Loan Away Inc. v. Facebook Canada Ltd, 2021 ONCA 432, in which the Ontario Court of Appeal held that, outside exceptional circumstances, forum selection clauses are generally valid and enforceable in commercial contexts.
Justice Azmudeh noted that while courts tend to enforce forum selection clauses in commercial contexts, the “strong cause” exception could allow a party to avoid a forum selection clause.
The judge cited Douez v. Facebook, Inc., 2017 SCC 33, in which the Supreme Court held that once a party seeking a stay establishes that there is a valid, clear and enforceable forum selection clause applicable to the relevant action, the onus shifts to the plaintiff to show strong cause why the court should not enforce the clause.
The judge noted that the Instagram terms of use agreement was a “take it or leave it” agreement with no room for negotiation.
However, she observed that while inequality of bargaining power can be a factor, it is not typically sufficient, on its own, to invalidate a forum selection clause unless it rises to the level of unconscionability.
The court noted that the plaintiff’s August 2023 “visa statement” showed that she had spent under $15 in advertising her business on Instagram.
“Therefore, while she could not negotiate the terms of the agreement with Meta, she did not suffer unconscionability. In fact, she enjoyed a commercial operation with little costs,” the judge wrote.
The judge noted that while the plaintiff would likely face additional expense and inconvenience by pursing her claim in California, there was no strong cause to avoid enforcing the forum selection clauses.
The court also concluded that the plaintiff was not a user for the purposes of the Instagram User Agreement which includes an exception to the forum selection clause that allows Canadian “consumers” to seek legal remedies from Canadian courts.
“I find that the Plaintiff’s Instagram account’s exclusive commercial use is inconsistent with her claim that she was a consumer… The Claim seeks damages for the Plaintiff’s loss of profit, loss of revenue and business opportunities and her inability to sell her inventory due to Meta’s closure of her account,” the judge wrote.
The court permanently stayed the action, finding the forum selection clause in the Instagram user agreement to be enforceable.
Counsel for Meta were Miranda Spence, Josh Suttner and Hannah Downard of Aird & Berlis LLP. They were not immediately available for comment.
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