<\/a><\/a>\u00a0\u00a0\u00a0\u00a0\u00a0 Consumers purchase goods and services from businesses located in Canada and worldwide on a daily basis. They get loans, buy telecommunications services, book travel, sign up for social networking websites, and purchase everything from clothing to computers. Inevitably, some of these relationships will break down and the consumers will seek some form of redress. The Canadian Forum on Civil Justice conducted a national survey exploring the nature and extent of legal problems experienced by Canadians. This survey found that consumer problems are the most frequently experienced legal problem, representing 22.6 per cent of all everyday problems.[1]<\/a> They are both the most frequently abandoned and the most frequently resolved problems. Consumers largely resolve their legal problems through self-help[2]<\/a> and rarely resort to the courts.[3]<\/a> While self-help and effective alternative dispute resolution systems may resolve a substantial number of consumer complaints, a small number of consumer cases will still end up in court, either as individual actions or as class proceedings. The courts are central for securing consumers\u2019 access to procedural and substantive justice and upholding consumer protection policies, despite their low engagement in resolving these problems.[4]<\/a><\/p>\n Business-to-consumer transactions in a globalized digital economy are governed almost exclusively by non-negotiable standard-form contracts, which are presented to consumers on a take-it-or-leave-it basis by all market players. Put differently, \u201c[i]n the mass market, consumers are contract takers\u201d[5]<\/a> and their access to and use of goods and services is conditional upon them accepting the terms of the standard-form contracts. The seemingly unlimited choices available to consumers are, in fact, constrained by the often onerous terms of standard-form contracts. These contracts have become \u201cthe rule[,] and [the businesses] the rulers.\u201d[6]<\/a> Standard-form contracts contain clauses dealing with substantive rights (such as price, warranties, and the like) and dispute resolution clauses setting out how disputes between the parties will be resolved. Dispute resolution clauses include either an arbitration clause that requires the consumer to engage in binding arbitration[7]<\/a> or a forum-selection clause that confers jurisdiction on a specific court chosen by the business.[8]<\/a><\/p>\n In Canada, arbitration clauses have attracted a significant amount of litigation[9]<\/a> and academic criticism.[10]<\/a> In response, Alberta, Ontario, Quebec, and Saskatchewan have enacted consumer protection legislation regulating pre-dispute mandatory arbitration clauses.[11]<\/a> In contrast, little attention has been given to forum-selection clauses, although they are far more prevalent than arbitration clauses[12]<\/a> and have an equally or even greater negative impact on a consumer\u2019s access to courts. In fact, the public outrage over consumer arbitration (in both Canada and the United States) may have turned the forum-selection clauses into a silent consumer fiend. For example, after considerable public clamour over Facebook\u2019s use of a mandatory arbitration clause in its revised terms of use, Facebook changed these terms and substituted its arbitration clause for a forum-selection clause.[13]<\/a><\/p>\n The principal policy goal behind the criticism of consumer arbitration and subsequent regulation through the Consumer Protection<\/em> Act<\/em> in Ontario was to increase consumers\u2019 access to justice by increasing their access to the courts.[14]<\/a> On the surface, forum-selection clauses appear to meet this objective by ensuring that a court<\/em> will hear the matter. However, the practical effect is that forum-selection clauses restrict consumers\u2019 access to justice, since the business dictates the choice of court (forum). The forum chosen by the business is its own home forum or a forum most favourable to its interests.[15]<\/a> In a cross-border business-consumer relationship, the chosen forum is a foreign forum for consumers and it may often, although not always, offer lesser substantive protection than a consumer\u2019s home forum. On the surface, forum-selection clauses provide predictability, as consumers know ahead of time which forum will resolve the dispute. Yet, they significantly restrict consumers\u2019 access to meaningful remedies, since the cost and complexities of pursuing a claim in a foreign forum often outweigh the financial benefits of the claim.<\/p>\n Since the enactment of the Civil Code of Qu\u00e9bec<\/em> in\u00a01994, Quebec has treated contractual restrictions on consumers\u2019 access to justice in cross-border transactions differently than the rest of Canada. Article 3149 provides for the jurisdiction of Quebec courts in consumer transactions where the consumer is a resident of Quebec, and effectively prohibits contractual restrictions on accessing Quebec courts through arbitration or forum-selection clauses. Additionally, section 11.1 of Quebec\u2019s Consumer Protection Act<\/em> prohibits contractual restrictions on consumers\u2019 \u201cright to go before a court\u201d and has an impact on the enforcement of arbitration clauses and class action waivers in domestic transactions.[16]<\/a><\/p>\n It has been argued that courts should consider enforcing jurisdiction clauses in consumer contracts with \u201cgreater scrutiny\u201d because of their inherent power imbalance. To examine how the courts approach forum-selection clauses in consumer contracts, this article analyzes all reported consumer cases involving forum-selection agreements in Canadian common law jurisdictions between\u00a01995 and\u00a02016. The analysis of these cases shows that the courts have failed to exercise the greater scrutiny that had been called for. In light of the analysis of the surveyed cases, this article argues that the rules for enforcing forum-selection clauses in consumer contracts ought to be recalibrated to reflect the power dynamic of consumer-business relationships, the ubiquity of standard-form contracts, and their effect on consumers\u2019 ability to obtain redress. This article proposes two suggestions for reform: legislative intervention that would invalidate forum-selection clauses in consumer agreements, and redesigning the common law strong-cause test specifically for consumer transactions. The article proceeds in three parts. Part\u00a0I provides an overview of the applicable rules for the enforcement of forum-selection clauses, both generally and in consumer contracts. Part\u00a0II provides an in-depth survey and analysis of cases dealing with the enforcement of consumer jurisdiction agreements in common-law Canada. Part\u00a0III outlines the two suggestions for reform.<\/p>\n A forum-selection clause\u2014also referred to as a jurisdiction clause or choice of court clause\u2014is a contract between the parties where they agree that their future disputes will be resolved by the court of a specified jurisdiction.[17]<\/a> The preponderant contractual obligation of a jurisdiction clause, found in every jurisdiction agreement, is positive. In positive clauses, the parties agree to \u201cconfer<\/em>[]the power to adjudicate upon a court which, but for that clause, might not have jurisdiction.\u201d[18]<\/a> Jurisdiction clauses may also contain a negative obligation whereby the parties may agree to remove (waive) the jurisdiction of an otherwise competent court or \u201call other courts\u201d.[19]<\/a><\/p>\n An exclusive<\/em> forum-selection clause contains both the positive and negative elements. The clause provides that only the nominated court will decide a dispute and \u201cpreclude[s] the parties from seeking relief in [an]other for[um].\u201d[20]<\/a> A n<\/em>on-exclusive<\/em> (permissive) forum-selection clause contains only the positive obligation. It provides that a nominated court may decide a dispute, but the clause on its own does not exclude the jurisdiction of other courts. The enforcement of non-exclusive clauses is not subject to a distinct jurisdictional test; rather, these clauses are considered as one of the factors in the forum non conveniens<\/em> analysis by either the nominated or non-nominated court. The method of enforcing an exclusive forum-selection clause depends on which court is asked to enforce it. If an action has been commenced before a nominated court, this court will enforce the forum-selection agreement by seizing jurisdiction. If an action has been commenced before a non-nominated court, the nominated court will enforce the clause by issuing \u201can anti-suit injunction to prevent a party from suing abroad in breach of [a forum-selection] agreement.\u201d[21]<\/a><\/p>\n A non-nominated court will enforce the forum-selection clause by staying its proceedings in favour of the nominated court.[22]<\/a> This is probably the most common method of enforcing forum-selection clauses and is the subject of this article. The non-nominated court engages in a two-step analysis to determine whether to stay the proceedings in the face of a valid forum-selection clause. First, the court establishes that the forum-selection agreement is a valid and enforceable contract and that it applies to the dispute at hand (that is, that the dispute is captured by the wording of the clause). Once the existence and applicability of the clause have been established, the court, using the strong-cause test, considers whether it will enforce the forum-selection clause by staying its proceedings.<\/p>\n This two-step approach to enforcing forum-selection clauses has deep historical roots and is based on the special nature of forum-selection contracts.[23]<\/a> The parties\u2019 promise to submit future disputes before the contractually-agreed forum carries a concomitant duty to refrain from submitting future disputes before an otherwise competent court.[24]<\/a> This principal obligation is an essential component of the forum-selection contract that reaches beyond the boundaries of the private contractual bargain and into the public (judicial) sphere. Jurisdiction clauses affect \u201cthe exercise of a state\u2019s adjudicatory authority\u201d[25]<\/a>\u2014one of the core public functions of a government[26]<\/a>\u2014as parties forgo adjudication in other competent courts. This encroachment of a private contract into the public sphere makes forum-selection clauses a unique category of contracts[27]<\/a> and is the reason why enforcing forum-selection clauses by a non-nominated court is subject to a two-step process.<\/p>\n General contract rules apply to the first step: assessing the validity and scope of the forum-selection contract. The second step\u2014giving effect to the forum-selection clause\u2014deals with the encroachment of a private contract into the public sphere and is thus subject to additional limitations (or special rules) that are absent in enforcing other contractual arrangements. The private contractual nature of the forum-selection clauses warrants that the courts will place \u201ca great deal of weight\u201d[28]<\/a> on them and will enforce them. Absent legislative direction, however, these contracts are \u201cnot absolutely binding\u201d,[29]<\/a> since a private agreement could not completely remove the inherent jurisdiction of the otherwise competent court.[30]<\/a> Hence, the courts retain the discretionary power to enforce forum-selection clauses through the strong-cause test.<\/p>\n The defendant bears the burden of proving that a forum-selection agreement is valid and applicable to the dispute at hand.[31]<\/a> Once the agreement is found applicable, the burden shifts to the plaintiff.[32]<\/a> Indeed, by commencing the proceedings in a non-nominated forum, the plaintiff has breached the forum-selection contract. As a challenger of the forum-selection agreement, the onus is on her to \u201cpersuade the court that effect should not be given to the clause.\u201d[33]<\/a> She must persuade the court that there are reasons which warrant that the court override an otherwise valid jurisdiction clause between the parties. The court will then use the discretionary strong-cause test to decide whether to seize jurisdiction in the face of the valid forum-selection clause, effectively endorsing a breach of the contract.<\/p>\n The discretionary nature and factors of the strong-cause test were articulated in Owners of Cargo Lately Laden on Board the Ship or Vessel Eleftheria v. The Eleftheria (Owners)<\/em>[34]<\/a> (The Eleftheria<\/em>) as follows:<\/p>\n (1) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within the jurisdiction, is not bound to grant a stay but has a discretion whether to do so or not. (2) The discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (3) The burden of proving such strong cause is on the plaintiffs. (4) In exercising its discretion the Court should take into account all the circumstances of the particular case. (5) In particular, but without prejudice to (4), the following matters, where they arise, may be properly regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign Courts. (b) Whether the law of the foreign court applies and, if so, whether it differs from English law in any material respects. (c) With what country either party is connected, and how closely. (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages. (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would: (i) be deprived of security for their claim; (ii) be unable to enforce any judgment obtained; (iii) be faced with a time-bar not applicable in England; or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial.[35]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 The Eleftheria<\/em>\u2019s strong-cause factors are similar to the forum<\/em> non conveniens<\/em> factors, subject to one major distinction. In the forum non conveniens<\/em> analysis, the default preference is for the plaintiff\u2019s choice of forum, and the defendant bears the onus of proving that the plaintiff\u2019s jurisdictional choice should be replaced. In the strong-cause analysis, the default preference is for the contractual choice of forum, and the plaintiff bears the onus of proving that this contractual jurisdictional choice should be replaced.<\/p>\n Canadian courts generally relied on The Eleftheria<\/em>\u2019s version of the strong-cause test until\u00a02003, when the Supreme Court of Canada addressed the enforceability of forum-selection agreements in ZI Pompey Industrie v. ECU-Line NV<\/em>[36]<\/a> (ZI Pompey<\/em>). In ZI Pompey<\/em>, the Court confirmed that the strong-cause test was the appropriate test for assessing the enforcement of a forum-selection clause, since \u201cthere [was] no legal or policy justification for setting aside the \u2018strong cause\u2019 test.\u201d[37]<\/a> The Court\u2019s basic proposition was consistent with the historical two-step analysis that relies on both contract rules and special rules: \u201cparties should be held to their bargain\u201d unless there is a strong cause for not doing so.[38]<\/a><\/p>\n The rules for enforcing forum-selection clauses were developed largely in commercial settings. The courts\u2019 strong deference to party autonomy in commercial settings has led to a favourable attitude toward enforcing forum-selection clauses. Within the two-part analysis for enforcing forum-selection clauses, the discretionary strong-cause test, as articulated in The Eleftheria<\/em> was designed to protect the public interest in public adjudication. In commercial settings, where there is a presumed equality of bargaining powers, state intervention is quite narrow and parties therefore have almost unfettered autonomy to regulate their affairs. This leads to a narrow interpretation of the strong-cause test in commercial contracts, effectively resulting in the enforcement of most forum-selection clauses. Consumer contracts, however, embody an inherent power imbalance, which necessitates greater intervention by the state.[39]<\/a><\/p>\n In ZI Pompey<\/em>, the Supreme Court indicated that high deference to forum-selection clauses is shown in \u201cnormal circumstances,\u201d which involve \u201csophisticated [business] parties,\u201d[40]<\/a> or conversely, that the deference to the agreement of the parties \u201cis given effect in all but exceptional circumstances.\u201d[41]<\/a> In its reasons, the Court twice indicated that the enforceability of forum-selection clauses may be different in cases involving parties with unequal bargaining power.[42]<\/a> Because of this unique power dynamic and on the basis of the Court\u2019s inferences in ZI Pompey<\/em>, it has been argued that the courts should approach enforcing forum-selection clauses in consumer contacts with \u201cgreater scrutiny.\u201d[43]<\/a> While the Supreme Court recognized that enforcing forum-selection clauses in consumer contracts requires a more cautious approach, the Court and commentators have not articulated what that greater scrutiny ought to look like.<\/p>\n In order to protect the public nature of adjudication, the interests of justice,[44]<\/a> and the authority (jurisdiction) of the forum, enforcing forum-selection clauses ought to be subject to additional limits, embodied in the strong-cause test. Adjudication by the consumer\u2019s home court is vital, since it is often, if not exclusively, the only meaningful way for consumers to obtain redress in a cross-border dispute. The protectionist nature of the strong-cause test therefore becomes more important in consumer contracts. The core factors listed in the fifth step of the test set out in The Eleftheria<\/em> (the location of the evidence and its importance to the trial; applicable law and its importance to the trial; the connections between the parties and the forum or other relevant jurisdictions; the impact of the trial in the nominated forum on the defendant; and the impact or prejudice of the trial in the nominated forum on the plaintiff), while originating in commercial settings, could equally be applied in consumer settings. The \u201cgreater scrutiny\u201d that has been called for would be exercised through the application of all five factors, and, in particular, through proper balancing of the competing jurisdictional interests of consumers and businesses (factors 5(d) and (e)).<\/p>\n Commentators have argued that despite its apparent simplicity, the Court\u2019s proposition in ZI Pompey<\/em> that parties should abide by the clause unless a strong cause justifies that they do otherwise marked a significant shift in the Canadian approach to the enforcement of foreign jurisdiction agreements.[45]<\/a> This shift was so fundamental that it effectively resulted in a distinct test for the enforcement of forum-selection agreements, where \u201cthe starting point is that parties should be held to their bargain.\u201d[46]<\/a> The existence of a valid jurisdiction agreement would therefore be a \u201csufficient reason for a court to decline jurisdiction,\u201d[47]<\/a> broadening the reach of the contractual nature of the forum-selection clauses and, in turn, necessarily narrowing the reach of the special limitations through the use of the strong-cause test. While this shift may be acceptable in the commercial context, it may pose additional challenges for enforcing forum-selection clauses in consumer contracts.<\/p>\n In the last several years, the enforcement of forum-selection clauses has become somewhat \u201cnebulous\u201d[48]<\/a> and more complex due to several distinct yet interrelated developments. These changes have led to some uncertainty in enforcing forum-selection clauses in commercial contracts and are even more challenging for consumer contracts.<\/p>\n First, several recent cases, including the Supreme Court\u2019s 2012 decision in Momentous.ca Corp. v. Canadian-American Association of Professional Baseball Ltd.<\/em>,[49]<\/a> have supported a shift toward a stronger emphasis on the contractual nature of the jurisdiction agreement.[50]<\/a> As a result, Canadian courts show an even \u201cgreater deference\u201d to forum-selection clauses and routinely enforce them.[51]<\/a><\/p>\n Second, there has been some disagreement among both the commentators and the courts about to the scope of the strong-cause test; that is, which factors should be considered (only factors going to the contractual nature of the forum agreement, or also other external factors which protect the public nature of adjudication, such as those traditionally considered under the test set out in The Eleftheria<\/em>) and whether the list of factors is closed. In Expedition Helicopters Inc. v. Honeywell Inc.<\/em> (Expedition Helicopters<\/em>), the Ontario Court of Appeal articulated a revised, narrower, version of the strong-cause test:<\/p>\n A forum selection clause in a commercial contract should be given effect. The factors that may justify departure from that general principle are few. The few factors that might be considered include[:] the plaintiff was induced to agree to the clause by fraud or improper inducement or the contract is otherwise unenforceable, the court in the selected forum does not accept jurisdiction or otherwise is unable to deal with the claim, the claim or the circumstances that have arisen are outside of what was reasonably contemplated by the parties when they agreed to the clause, the plaintiff can no longer expect a fair trial in the selected forum due to subsequent events that could not have been reasonably anticipated, or enforcing the clause in the particular case would frustrate some clear public policy.[52]<\/a><\/p>\n While this revised approach has been confirmed by several decisions across Canada, there is some uncertainty whether the Expedition Helicopters factors are illustrative or exhaustive. The tendency, so far, seems to support an open list.[53]<\/a><\/p>\n Third, the Courts Jurisdiction and Transfer Proceedings Act<\/em>[54]<\/a> (CJPTA<\/em>), which is in force in British Columbia,[55]<\/a> Nova Scotia,[56]<\/a> and Saskatchewan,[57]<\/a> does not contain any rules for enforcing forum-selection clauses by non-nominated courts. The courts have grappled with reconciling the CJPTA<\/em> with the strong-cause test.[58]<\/a><\/p>\n This recent shift toward a stronger emphasis on the contractual nature of the forum-selection clauses, while perhaps appropriate in the commercial context, is not appropriate in the consumer context. The contractual nature of the forum-selection clause and the strong-cause test are, to borrow terminology from linguistics, in a syntagmatic relationship: they are interdependent, and taken together sequentially they define which jurisdiction agreements will be enforceable. They are not in a paradigmatic relationship: they are not mutually replaceable, since each serves a distinct function.[59]<\/a> Contract rules provide a core legal basis for the enforcement of jurisdiction agreements, while the strong-cause test limits contractual autonomy in order to protect the authority (jurisdiction) of otherwise competent courts. The strong-cause test, while it may be diminishing in importance, should not be recast through contractual principles. Any reservations regarding the appropriateness of private ordering in cases involving \u201cindividuals who may not be of equal bargaining power,\u201d[60]<\/a> such as consumer or employment contracts, should be dealt with at the contractual level. The strong-cause test should be preserved as a distinct and important safeguard of access to domestic courts for other, non-contractual reasons, such as access to justice, \u201cconvenience of the parties, fairness between the parties and the interests of justice.\u201d[61]<\/a><\/p>\n To examine how the courts approach forum-selection clauses in consumer contracts, and whether they indeed exercise \u201cgreater scrutiny\u201d as called for by the Supreme Court in ZI Pompey<\/em>, this article surveyed all reported consumer cases involving forum-selection agreements in Canadian common law jurisdictions between\u00a01995 and\u00a02016. The review and analysis of the case law has largely focused on the version of the strong-cause test set out in The Eleftheria<\/em>, primarily because it has been the dominant test during the reviewed period. The analysis, however, also includes distinct factors and issues raised by the more recent interpretations of the test in Expedition Helicopters<\/em>.<\/p>\n For the purpose of this article, a consumer transaction is defined as any transaction between a merchant (business) and an individual (consumer) in which the consumer obtained goods or services for personal use. In the period between 1\u00a0January 1995 and 1\u00a0July 2016, there were nineteen\u00a0cases[62]<\/a> involving an exclusive forum-selection agreement in a consumer contract.[63]<\/a><\/p>\n The subject matter of the cases and the personal characteristics of the consumers involved are illustrative of the ubiquity and pervasiveness of consumer contracts in the daily lives of present-day consumers. Examples involved cruise travel (three cases), individual investments and brokerage agreements (four cases), personal loans (two cases), internet services, cell phone service, social media and privacy, internet gambling, cybersquatting, legal services of a licensed practitioner of foreign law, immigration consulting services, online travel booking services, inter-provincial moving, and intercontinental cargo transport. Consumers affected by these contracts were of diverse ages (ranging from students and recent university graduates to an eighty-one-year-old retiree),[64]<\/a> gender,[65]<\/a> marital status,[66]<\/a> socio-economic status,[67]<\/a> and language.[68]<\/a> In all but two cases,[69]<\/a> the consumers were the plaintiffs, either individually, or as class representatives.[70]<\/a> Six cases included intra- or inter-provincial relationships[71]<\/a> and thirteen cases included international relationships.[72]<\/a> Five cases included electronic standard-form contracts,[73]<\/a> while the remaining thirteen included paper contracts.<\/p>\n The courts found that the forum-selection agreements were validly formed in all but two cases.[74]<\/a> Out of the seventeen cases in which the clause was found to be valid, the courts applied the strong-cause test in all but two cases.[75]<\/a> Forum-selection clauses were enforced in twelve cases resulting in the stay of proceedings.[76]<\/a> The clauses were not enforced in five cases;[77]<\/a> of those, in three cases the courts found that the plaintiffs demonstrated strong cause for not enforcing the clause.[78]<\/a> The remaining two cases were class actions. The proceedings were not stayed because they would cause multiple proceedings, which would be unfair or unfavourable to the class members who were not bound by the forum-selection clause.[79]<\/a><\/p>\n The discretionary nature of the strong-cause test leads to highly fact-specific results and, therefore, carries a necessary caveat against overgeneralization. The analysis has a narrow focus and only takes into consideration the issues that allow the courts to appropriately adapt the general (commercial) rules to the consumer setting. Its focus is on the way courts apply the strong-cause test and, in particular, how they balance the jurisdiction interests of businesses and consumers identified in Part\u00a0I, above. These factors are possible avenues for exercising greater scrutiny of forum-selection clauses.<\/p>\n The survey of cases shows that courts have not truly exercised the greater scrutiny that was called for. With the exception of four cases,[80]<\/a> the courts have applied the existing (commercial) rules as they are, with little regard, if any, to the specific nature of the consumer transactions or the crucial implications that staying local proceedings has on consumers\u2019 ability to seek and obtain redress.<\/p>\n In most cases, courts started from the premise that the forum-selection clauses were valid contracts, mainly because their validity was not challenged by consumer-plaintiffs. The validity of the forum-selection agreements was considered in six cases, and the jurisdiction clauses were treated as exclusionary clauses in five of those cases.[81]<\/a> To be valid, forum-selection clauses should be clear and have been brought to the user\u2019s attention.[82]<\/a> If the clause was drawn to the consumer\u2019s attention[83]<\/a> and the business reasonably believed that the consumer\u2019s signature indicated acceptance of the terms of the contract,[84]<\/a> that term was deemed valid\u2014provided it was not unconscionable.[85]<\/a> All five cases predate the Supreme Court decision in Tercon Contractors Ltd. v. British Columbia (Transportation and Highways)<\/em>, which provides a framework for determining the applicability of exclusionary clauses.[86]<\/a><\/p>\n In two cases, the courts found that the forum-selection clause was invalid. Trepanier v. Kloster Cruise Limited<\/em> involved an Ontario plaintiff who ingested a piece of glass from a drink while on the defendant\u2019s ship, which was located in the Bahamas at that time of the injury. The forum-selection clause nominating Florida courts was included in a ten-page ticket contract containing twenty-eight terms.[87]<\/a> The evidence indicated that the plaintiff did not read the terms and that the terms were not explicitly brought to her attention either by her travel agent or the cruise line.[88]<\/a> As a result, the court found that the forum-selection agreement was not valid and seized jurisdiction in the matter. McLean v. Can American Van Lines\/Yellow Self Storage et al.<\/em> involved a Saskatchewan plaintiff who hired an Ontario moving company to transport her property from Ontario to Saskatchewan.[89]<\/a> Some of the property was damaged, destroyed, or lost during the move. The forum-selection clause nominating Quebec courts was included on the second page of the standard from contract. The court stated that the validity of the terms on the second page was predicated on the existence of the consumer signature on that page. The plaintiff signed the first page of the contract, but there was no signature, initial, or any other indication on the reverse page of the contract.[90]<\/a> As a result, the court found that the forum-selection clause was not valid and seized jurisdiction in the matter.<\/p>\n The notice requirement\u2014whether the clause was properly brought to the consumer\u2019s attention\u2014was considered in three cases, all of which found them to be valid. Friesen v. Norwegian Cruise Lines Inc.<\/em> (Friesen<\/em>) involved a consumer from British Columbia who slipped and fell from a hot tub while on the defendant\u2019s cruise ship, which was located in Alaska at the time of the injury. The forum-selection clause nominating Florida courts was included in the ticket contract, containing \u201c28\u00a0paragraphs of fine print.\u201d[91]<\/a> The consumer-plaintiff checked the date of travel, but there was no evidence that she read any other term of the contract. The court stated that the threshold for the notice of onerous terms was \u201ca very low standard of reasonableness,\u201d[92]<\/a> which was met in this case. Despite being valid, the forum-selection clause in this case was not enforced, based on the existence of strong cause. In Rosenthal v. Kingsway General Insurance Co.<\/em>,[93]<\/a> an Ontario consumer engaged an English freight forwarder to transport cargo from England to Ontario. The plaintiff jointly sued the English freight forwarder and the Ontario insurer for damages arising from the loss of the portion of the cargo. The forum-selection clause nominating English courts was included in an \u201calmost illegibl[y]\u201d[94]<\/a> small type size on the reverse side of a bill of lading that was only presented to the consumer-plaintiff after the commencement of legal proceedings. While the court found the clause to be valid, it held that the circumstances of the presentation of the contract, along with the other facts of the case (the evidence was located mainly in Ontario), sufficiently established strong cause for not enforcing the forum-selection clause.[95]<\/a> In contrast, in Rudder v. Microsoft Corp.<\/em> (Rudder<\/em>), a case involving an internet service contract between MSN (an internet provider from the United States) and individual Ontario consumers, the court did not categorize the forum-selection clause as an onerous fine-print term.[96]<\/a> The forum-selection clause was included in an electronic contract that was presented to consumers before payment for the service. Since this was the first Canadian case to deal with electronic contracts, the court was faced with defining what constitutes appropriate notice in such contracts. The plaintiffs argued that the forum-selection clause contained in the electronic contract was not valid, since, being equivalent to fine print in a paper contract, it was not brought to their attention at the time of contracting. Judge Winkler stated that the entire contract was presented in a uniform-sized typeface and, therefore, \u201cthere [was] no fine print as that term would be defined in a written document.\u201d[97]<\/a> Judge Winkler further argued that the form and manner of presentation of the agreement did not require any special considerations,[98]<\/a> and that not enforcing the agreement would \u201cmove this type of electronic transaction into the realm of commercial absurdity. It would lead to chaos in the marketplace, render ineffectual electronic commerce and undermine the integrity of any agreement entered into through this medium.\u201d[99]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Manjos v. Fridgant<\/em>[100]<\/a> (Manjos<\/em>) involved an Ontario couple that sued for mismanagement of investment funds. While the contract in dispute was a consumer contract, the couple also had a prior business relationship with the investment advisor on behalf of their corporation. This is perhaps why the court found that the forum-selection agreement was valid. In assessing the validity of the contract, the court found the consumers were educated and sophisticated, that they were offered and declined an opportunity to review the contract and its terms, and that they were not induced into signing the contract because they truly had an opportunity to not transfer the accounts to the investment advisor\u2019s new employment.[101]<\/a><\/p>\n Similarly to the rules on enforcing forum-selection clauses, contract rules (including rules on standard-form contracts) originated in a commercial environment strongly built on party autonomy. Party autonomy has been detrimental for consumer interests, as vividly depicted by Geoffrey Woodroff and Robert Lowe, who argued that consumers have not been able to \u201cbreak out of the straitjacket of freedom of contract.\u201d[102]<\/a> Or, as Iain Ramsay has argued, the \u201ctraditional contract ideas are the core and consumer law the periphery,\u201d[103]<\/a> acting only as a necessary and often insufficient limit on party autonomy. The Canadian courts continue to routinely enforce consumer standard-form contracts,[104]<\/a> despite a normative view expressed in the academic literature that their enforcement is particularly problematic in the consumer context.[105]<\/a> Because of this view, the stronger emphasis on the contractual nature of forum-selection clauses in the Expedition Helicopters<\/em> version of the strong-cause test\u2014by effectively eliminating another avenue for consumers to challenge these agreements\u2014further strengthens the enforceability of these clauses.<\/p>\n In fifteen out of seventeen cases where the forum-selection clause was found to be valid, the courts applied the strong-cause test to determine whether the forum-selection clause should be given effect. In ten cases, the courts found that the consumer-plaintiff failed to establish strong cause for not enforcing the clause and the proceedings in consumer\u2019s home forum were therefore stayed.[106]<\/a> In two cases, the courts found that the business-plaintiffs also did not establish strong cause.[107]<\/a> In five cases, the consumer-plaintiffs established strong cause and the forum court seized jurisdiction in the matter.[108]<\/a> By and large, the courts applied The Eleftheria<\/em>\u2019s strong-cause test, either directly or through the Canadian cases that have incorporated it.[109]<\/a> Only two cases considered the more recent version of the strong cause, articulated in Expedition Helicopters<\/em> and its subsequent cases.[110]<\/a><\/p>\n In the surveyed cases, the courts examined the facts against the strong-cause test with vastly varying degrees of analysis. The level of the courts\u2019 analysis can be grouped into three categories: conflated jurisdictional tests; application and under-analysis of the strong-cause test; and traditional application of the strong-cause test.<\/p>\n The first group nominally applied the strong-cause test but conflated it with the other jurisdictional tests, such as the real and substantial connection or the forum non conveniens<\/em> tests. For example, in Kates v. Wyant<\/em> (Kates<\/em>), an elderly Ontario resident bought shares in the defendant\u2019s Saskatchewan corporation through a subscription agreement containing a jurisdiction clause nominating Saskatchewan courts. The court found that there was \u201ca real and substantial connection to both Ontario and Saskatchewan\u201d[111]<\/a> and stayed the action because the forum-selection clause \u201cshould be respected.\u201d[112]<\/a> Zhan v. Pfizer Inc.<\/em> (Zhan<\/em>) involved cybersquatting, or the registration of a domain name including the \u201cPfizer\u201d trademark in Chinese characters, and provided for the jurisdiction of Colorado courts. The court incorporated the strong-cause test into the forum non conveniens<\/em> analysis.[113]<\/a><\/p>\n The second group comprises the cases that have applied the strong-cause test, but have not discussed it in detail. Lehner v. Keller<\/em>[114]<\/a> involved an unpaid personal loan of 50,000 Swiss Franks between Swiss individuals and a Canadian consumer. Although the parties nominated a Swiss court, they did not address the jurisdictional issues. Thus, the plaintiff failed to establish strong cause for not enforcing the clause, and the proceeding was stayed.[115]<\/a> Allen v. Carnival Corporation<\/em>[116]<\/a> (Allen<\/em>) involved an Ontario resident who fell and injured her ankle while on the defendant\u2019s cruise ship; the agreement nominated Florida courts. Preymann v. Ayus Technology<\/em> Corporation<\/em>[117]<\/a> (Preymann<\/em>) involved an Austrian consumer to whom a British Columbia corporation did not pay back a loan (investment) of one million Euro; the agreement nominated Austrian courts. In these two cases, the trial courts did not refer explicitly to the strong-cause test, but enforced the clauses based on the principles of fairness and reasonableness[118]<\/a> or deference to forum-selection clauses.[119]<\/a> On appeal, the Ontario Court of Appeal and the British Columbia Court of Appeal confirmed that the trial courts\u2019 analyses conformed to the strong-cause test.[120]<\/a> The Ontario Superior Court of Justice\u2019s order staying proceedings in Manjos<\/em> was appallingly short.[121]<\/a> While the Ontario Court of Appeal confirmed the result, its analysis of the Expedition Helicopters<\/em> strong cause was not remarkably thorough.[122]<\/a><\/p>\n The majority of cases, which comprise the third group,[123]<\/a> applied the strong-cause test and analyzed the applicable strong-cause factors in light of the \u201cfactual matrix\u201d[124]<\/a> of the cases. All five of the factors listed in The Eleftheria<\/em>\u2014the location of evidence; the applicable law; the connection between the parties and the forum or the other relevant jurisdiction; the impact on the defendant and the impact on the plaintiff to sue in the nominated jurisdiction\u2014have been considered in these cases. More recent cases, which used the Expedition Helicopters<\/em> version of the test, considered juridical advantage, public policy, as well as other relevant factors.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Friesen<\/em> and Allen<\/em>, two cases with very similar facts, considered the impact on the business-defendant of holding the trial in the nominated forum. Friesen<\/em> considered this impact in light of the cost and convenience of presenting evidence and witnesses in the nominated forum. The defendant\u2019s witnesses were located across several jurisdictions and the court found that \u201cthe practical requirements for the defendant of staging a trial are more or less the same no matter where in the world the trial might take place.\u201d[125]<\/a><\/p>\n In Allen<\/em>, despite the similarity with Friesen<\/em>,[126]<\/a> the Ontario court employed a very different approach in assessing the business\u2019s jurisdictional interest and did not reach the same result. The forum-selection clause was included in a multi-page ticket contract, which the plaintiff signed, but claimed not to have read. In the court\u2019s view, the forum-selection agreement nominating Florida (the business-defendant\u2019s home jurisdiction) was \u201cnot … unreasonable\u201d, and necessary for the business to ensure certainty and predictability in its multi-national operations.[127]<\/a> By formulating its reasons this way, the court legitimized the business\u2019s choice of home jurisdiction as appropriate, or, using the terminology of The Eleftheria<\/em>, the business\u2019s choice of its home forum automatically demonstrated its \u201cgenuine[] desire\u201d to hold the trial in its home jurisdiction.[128]<\/a> When the court quantified the jurisdictional interests of the big business and the small individual consumer, it made an important qualitative judgment that the business\u2019s jurisdictional interests are more significant, thus invalidating the \u201cgreater scrutiny\u201d of forum-selection clauses. Ultimately, this approach pushes the threshold for establishing the strong cause even further away from the reach of an ordinary consumer.<\/p>\n The impact on the plaintiff of holding the trial in the nominated forum was considered in a majority of cases.[129]<\/a> The Elefhteria<\/em>\u2019s strong-cause test provides a rather narrow list of circumstances to be considered under this factor: the loss of the security for the claim; the inability to enforce the judgment; whether there is a time-bar which does not exist in the consumer\u2019s jurisdiction; and the inability to obtain a fair trial. This list should not be interpreted as exhaustive, however, since both The Eleftheria<\/em> and ZI Pompey<\/em> instruct the courts to \u201ctake into account all the circumstances of the particular case.\u201d[130]<\/a> In the surveyed cases, the courts considered both the explicitly listed factors (fair trial and enforcement of judgment) and those that are highly relevant for consumer cases and could be broadly subsumed in this category (such as the impact of the cost of trial in the foreign jurisdiction and the impact of the multiplicity of proceedings).<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Rudder<\/em> considered the fair trial and the enforcement of the foreign judgment in the context of class proceedings. The court concluded that the more favourable certification criteria in the Ontario Class Proceedings Act<\/em>,[131]<\/a> which affected the plaintiffs\u2019 ability to obtain a fair trial in the United States, were not sufficient to override the forum-selection agreement.[132]<\/a> In fact, in the court\u2019s view, the loss of that advantage was offset by the potential advantage of enforcing the judgment of the nominated court against the defendant\u2019s local assets, especially given the value of the proposed class action of $75,000,000.[133]<\/a><\/p>\n The weakest link in resolving cross-border disputes is the enforcement of foreign judgments. If the business-defendant does not have any assets in the consumer\u2019s home jurisdiction, consumers awarded compensation by their home court need to enforce that judgment in the business\u2019s home jurisdiction. The inherent risk of every court proceeding with a foreign element is that the resulting judgment will not be enforced in a foreign jurisdiction. A judgment\u2019s enforceability is an important factor in both the strong-cause and the forum non conveniens<\/em> analyses. Within the strong-cause test, however, a judgment\u2019s enforceability is part of a bundle used to assess the consumer\u2019s jurisdictional interest. Difficulty or inability to enforce the judgment should not be used to further legitimize a business\u2019s choice of its home jurisdiction as appropriate, nor should it be used as a counterweight to the other factors from the same bundle, such as the fair-trial factor.<\/p>\n Compensation for a wrongful act is often the motivating factor for commencing legal proceedings[134]<\/a> and the enforcement of the judgment is a crucial step in meeting this objective. The inability to enforce the judgment, however, will not render the trial useless. The reason for commencing a court action may be driven by other, non-monetary motivations, such as a desire to change business practices,[135]<\/a> to prevent \u201cthe same thing from happening to someone else,\u201d[136]<\/a> or to protect the consumer\u2019s other interests (such as their reputation and validation). This is particularly true for class proceedings. The compensation provided to consumer plaintiffs in class actions carries a deterrent effect, affecting the business\u2019 future behaviour and the behaviour of other similarly situated parties.[137]<\/a> Enforcing a judgment in the business\u2019s home jurisdiction gives teeth to the original judgment\u2014it carries out the punitive aspect of the trial, including its deterrent effect. By its very nature as a public institution[138]<\/a> and, in particular, by publicizing the information about the case, a trial produces broader social results, such as the creation of new rules, deterrence, and behaviour modification.[139]<\/a> These are almost exclusively achieved through domestic court proceedings. Enforcement proceedings may further amplify the intangible effects of the original trial; failure to enforce a judgment, however, will not eliminate these effects. As \u201creactive\u201d[140]<\/a> institutions, the courts\u2019 \u201cagendas are largely set by the actions and choices of individuals and groups having no formal ties to the judicial system.\u201d[141]<\/a> Commencing domestic proceedings and enforcing the judgment are the consumer\u2019s prerogative\u2014a prerogative that is used neither lightly nor frequently.[142]<\/a> Compensation is an important consideration in a consumer\u2019s decision to engage the courts. Yet, the potential unenforceability of a judgment from the consumer\u2019s home court should not automatically override a consumer\u2019s jurisdictional (or other) interests in holding a trial before this court.[143]<\/a> The court\u2019s prioritization of a single factor (such as enforceability of the judgment, as seen in Allen<\/em>[144]<\/a> and Rudder<\/em>[145]<\/a>) leads to an even higher onus for establishing the strong cause.<\/p>\n The cost and impact of the foreign trial were considered in four cases.[146]<\/a> In Friesen<\/em>, the consumer-plaintiff was not able to return to work due to her injuries, which were treated by numerous British Columbia medical professionals.[147]<\/a> The plaintiff\u2019s case substantially relied on evidence and witnesses located in British Columbia. The court found that \u201cthe cost of and inconvenience\u201d of presenting her case in the nominated forum (Florida), irrespective of the defendant\u2019s offer to cover the plaintiff\u2019s airfare to Florida or availability of videoconferencing, was potentially prejudicial to the plaintiff\u2019s case,[148]<\/a> and was sufficient to establish strong cause for not enforcing the clause. In the court\u2019s view, a stay of proceedings in favour of the nominated forum \u201cwould come close to denying the plaintiff access to a court at all.\u201d[149]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Straus v. Decaire<\/em>[150]<\/a> (Straus<\/em>) involved an Ontario couple who purchased shares in a British Columbia company based on advice from and through several financial and investment advisors. The company became insolvent; the couple lost their investment and sued the advisors in Ontario. The relationship with certain advisors was based on a contract containing a forum-selection clause nominating the British Columbia courts.[151]<\/a> The court considered the cost of trial in British Columbia for an Ontario couple in light of possible multiple proceedings which would occur if the forum-selection clause was enforced. The court found that the cost and inconvenience of a separate trial against the British Columbia defendants would be prohibitive for the plaintiffs, who were of modest means and had young children in Ontario. In the court\u2019s view, staying the action would bar the plaintiffs merits of their Ontario claim.[152]<\/a> By contrast, in Zhan<\/em> and Ezer v. Yorkton Securities and Danzig<\/em> (Ezer<\/em>), the courts found that the cost of a foreign trial alone was not sufficient to establish strong cause to override the contractual forum.[153]<\/a><\/p>\n Inaccessibility and inconvenience of the nominated forum was briefly considered in two cases. Kates<\/em> involved an eighty-one-year-old retiree and Ezer<\/em> involved a plaintiff with a temporary medical condition. The plaintiff\u2019s inability to travel to the nominated forum was raised in support of the strong cause for not enforcing the forum-selection clauses. However, this inability was not considered a significant factor compared to the other facts in these cases.[154]<\/a><\/p>\n The cost of any trial is prohibitive.[155]<\/a> This is particularly so in consumer cases, where the cost of a trial may often be significantly higher than the value of the claim.[156]<\/a> Despite their low engagement in resolving consumer problems,[157]<\/a> the courts are central for securing substantive justice for consumers and upholding consumer protection policies.[158]<\/a> For those few cases that reach the courts, access to courts equals access to substantive justice. Keeping an unobstructed path to the courts is an important means of protecting substantive justice for consumers. The infrequent use of courts in either domestic or foreign proceedings is irrelevant for assessing the strong cause. In fact, the very act of commencing proceedings before the consumer\u2019s home court, in breach of a forum-selection agreement, is a testament to the courts\u2019 importance in protecting consumers\u2019 procedural and substantive interests.<\/p>\n \u201cIf … litigation in [the consumer\u2019s] home forum is a complex and expensive prospect, cross-border litigation is worse.\u201d[159]<\/a> In the types of cases presented in this review, the cost of a foreign trial and associated expenses\u2014retaining a foreign lawyer, a translator, additional expenses for bringing in witnesses, and so on[160]<\/a>\u2014are certainly higher than the cost of a trial in consumer\u2019s home jurisdiction. For the purpose of assessing the strong cause, however, the cost analysis is not a comparative one. The cost of a foreign trial should not be assessed solely against the cost of the home trial; rather, it is the impact of the cost and the inconvenience of a foreign trial on consumers\u2019 procedural and substantive rights that should be considered. The cost of a foreign trial acts as a significant barrier to substantive justice for consumers. Once the local proceedings are stayed, commencing a foreign action is the only remaining legal recourse for consumers.[161]<\/a> If the foreign action is not pursued due to its costs, consumers are left without any form of legal remedy. At the same time, even if a consumer pursues a foreign action following the stay of proceedings in her home jurisdiction, the cost may still influence a consumer\u2019s ability to receive a fair trial in the nominated jurisdiction. The high cost will often produce a selective, rather than comprehensive, presentation of witnesses and evidence, which puts consumers at an additional disadvantage. The courts\u2019 analysis of the cost of the trial on the consumer\u2019s ability to obtain redress in Friesen<\/em> and Straus<\/em> is a good start.[162]<\/a> Since a consumer\u2019s choice to pursue her claims is influenced by the cost of trial (a key factor), a more comprehensive analysis of the overall impact of the cost of trial on a consumer\u2019s ability to obtain any redress is warranted.<\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Douez v. Facebook, Inc.<\/em>[163]<\/a> (Douez<\/em>) involved a statutory tort of invasion of privacy: Facebook\u2019s unauthorized use of its users\u2019 images for advertising. Both the trial and appellate courts considered whether the nominated forum, California, would be able to decide the matter, given that unauthorized use of images is a tort under the British Columbia Privacy Act<\/em>,[164]<\/a> and that the Act<\/em> provides for the jurisdiction of British Columbia courts. The trial and appellate courts came to a different interpretation of the statutory jurisdiction and, therefore, different conclusions on the (in)ability of the nominated court to deal with the claim.[165]<\/a> The facts in Douez<\/em> are more complex than most of the surveyed cases, both because of its subject matter (a tort related to a contract) and of the statutory jurisdiction in the Privacy Act<\/em>. The case is currently under appeal before the Supreme Court of Canada, which is expected to provide further guidance on both the scope of the strong-cause test and the relationships between forum-selection clauses and statutory jurisdiction.<\/p>\n Proper balancing of businesses\u2019 and consumers\u2019 jurisdictional interests, as expressed in factors\u00a05(d) and\u00a05(e) of The Eleftheria<\/em>\u2019s test or through the application of Expedition Helicopters<\/em>, is crucial for ensuring fairness in enforcing forum-selection clauses in consumer contracts. Friesen<\/em> is the only surveyed case that truly engaged in balancing the competing business and consumer jurisdictional interests. The court balanced the parties\u2019 jurisdictional interests in light of the presentation of witnesses and evidence, which weighed heavily in that case. The consumer-plaintiff\u2019s evidence and witnesses (various medical professionals that treated her) were located in British Columbia. The defendant\u2019s witnesses were located in Norway, the United Kingdom, South Africa, and Alaska. The court found that the \u201cthe practical requirements for the defendant of staging a trial are more or less the same no matter where in the world the trial might take place.\u201d[166]<\/a> In assessing the impact on both parties of holding the trial in Florida, the court engaged in an impressively thorough analysis of all of the circumstances of the case, including the assessment of available alternatives. For example, the court examined video conferencing as a cost-effective way of presenting witnesses and evidence; in their analysis, the court balanced the cost and convenience of this method against the difficulties of compelling non-resident witnesses to testify in Florida by video conference. Also, when examining the cost of a foreign trial and its impact on the plaintiff, the court subtracted the cost of the plaintiff\u2019s airfare to Florida, as the defendant offered to cover it for the plaintiff. After a truly comprehensive analysis, the court concluded that the plaintiff established a strong cause for not staying the British Columbia proceedings, since the trial in the nominated forum \u201cwould come close to denying the plaintiff access to a court at all.\u201d[167]<\/a><\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0 Manjos<\/em> and Douez<\/em> applied the Expedition Helicopters<\/em> version of the test to assess the impact of a stay on the consumer-plaintiffs, achieving a similar objective to the balancing analysis under The<\/em> <\/a>I.\u00a0 Rules for the Enforcement of Forum-Selection Clauses<\/h1>\n
<\/a><\/a><\/a>II. Survey of Cases<\/h1>\n
<\/a><\/a><\/a>A.\u00a0 Validity of Forum-Selection Clauses<\/h2>\n
<\/a><\/a><\/a>B.\u00a0 Enforceability of Forum-Selection Clauses: The Applicability of the Strong-Cause Test in Consumer Cases<\/h2>\n
<\/a><\/a><\/a><\/a>1.\u00a0\u00a0\u00a0 Businesses\u2019 Jurisdictional Interest: Impact on the Defendant of Holding the Trial in the Nominated Jurisdiction<\/h3>\n
<\/a><\/a><\/a>2.\u00a0\u00a0\u00a0 Consumers\u2019 Jurisdictional Interest: Impact on or Prejudice to the Plaintiff by Holding the Trial in the Nominated Jurisdiction<\/h3>\n
<\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a><\/a>a. \u00a0\u00a0 Fair Trial and Enforcement of Judgments<\/h4>\n
<\/a><\/a><\/a>b.\u00a0\u00a0\u00a0 Cost and Inaccessibility of the Foreign Trial<\/h4>\n
<\/a>c.\u00a0\u00a0\u00a0 Inability of the Nominated Court to Deal with the Claim<\/h4>\n
<\/a><\/a><\/a><\/a>C.\u00a0 Balancing Competing Jurisdictional Interests<\/h2>\n