News + Insights

In 2023, after the enactment of the federal Online News Act—which requires compensation for Canadian news content distributed online—Meta terminated the agreement early. In doing so, it relied on a clause of the News Innovation Agreement that gave Meta the right to terminate if any “law … in Facebook’s reasonable determination … may have any adverse impact upon its activities in Canada.”

On behalf of Torstar, AGB commenced an application in the Ontario Superior Court of Justice challenging Meta’s position and claiming the amounts owing under the balance of the News Innovation Agreement's three-year term.

Meta's Unsuccessful Jurisdictional Challenge

Meta moved to dismiss (or permanently stay) Torstar’s application, arguing that forum selection clauses found in Meta’s online Terms of Service and Commercial Terms required that Torstar’s claim be litigated in California. The Ontario Superior Court of Justice ultimately disagreed. 

The test for a permanent stay or dismissal of an action in Canada pursuant to a forum selection clause is well-established. The moving party (Meta, in this case) has the burden to show that the forum selection clause is valid, clear and enforceable and that it covers the claims asserted. Once the moving party has established the applicability, validity, clarity and enforceability of the forum selection clause, the burden shifts to the opposing party (Torstar, in this case) to show that there is a "strong cause" not to enforce the forum selection clause. The "strong cause" limitation on the enforceability of a forum selection clause tends to fall into broad categories: those intended to protect a weaker party, and those intended to protect "the social, economic, or political policies of the enacting state in the collective interest." This case engaged the latter category. 

Accepting AGB’s submissions, the Superior Court found that Meta had not established that the forum selection clauses clearly applied. In doing so, the Court distinguished the earlier decisions of Loan Away v. Facebook Canada Ltd., 2021 ONCA 432, and Gorenstein v. Meta Platforms, 2025 FC 410, which had deferred to the same (or similar) forum selection clause in Meta's online Terms of Service and Commercial Terms, respectively.

The Court also found that, even if there was a clearly applicable forum selection clause, there would be strong cause not to enforce it given Canada’s public interest in having its own courts adjudicate questions arising under the Online News Act, which implements public policy that engages and seeks to protect the constitutional values of free expression and a robust, free press that underpin access to credible information and democratic engagement. 

With Meta's jurisdictional arguments defeated, Torstar's application will now proceed on its merits.