Executive Summary: Key Legal and Evidentiary Issues

• Meta successfully enforced a forum selection clause requiring litigation in California, not Canada.

• The plaintiff operated a business using Instagram and was not considered a consumer under Meta’s Terms of Use.

• The court ruled that merely clicking through Instagram’s non-negotiable Terms binds users to all linked agreements.

• Plaintiff’s commercial use of the platform excluded her from Canadian jurisdiction protections under consumer law.

• The Federal Court found no strong cause to override the forum clause, even with the inconvenience of foreign litigation.

• Despite Meta's success, no costs were awarded due to the plaintiff's self-representation and the public interest in the issues raised.  

Facts and outcome of the case

Tatiana Gorenstein, a self-represented business owner based in Vancouver, British Columbia, filed a claim in the Federal Court of Canada against Meta Platforms, Inc., the parent company of Instagram. She alleged that the wrongful suspension of her business Instagram account caused a loss of revenue for her luxury resale business. Gorenstein had used Instagram both to advertise and conduct business transactions and paid for advertisements through the platform.

Meta responded by filing a motion to stay the proceedings permanently, arguing that the Federal Court lacked jurisdiction due to a forum selection clause in its Terms of Use. The company pointed to several layers of binding agreements—the Instagram Terms of Use, Ad Terms, and Commercial Terms—all of which stipulated that disputes arising from commercial use of the platform must be litigated in California courts.

The court reviewed the issue through two main legal lenses: contract enforceability and the plaintiff’s classification as a consumer or commercial user. Justice Azmudeh concluded that Gorenstein had indeed agreed to the terms by clicking through Instagram’s sign-up and advertising interfaces. Even if she had not read the linked documents, Canadian jurisprudence supports the view that a hyperlink to binding terms is sufficient to create contractual obligations.

On the matter of classification, the court rejected Gorenstein’s argument that she was a consumer entitled to file in Canada. Her account was used exclusively for business, and the claim was for commercial losses, not personal or household use. Referencing decisions like Amazon.com and Loan Away, the court determined that she was clearly operating within a commercial framework and therefore outside consumer protection provisions that might otherwise allow a Canadian forum.

Ultimately, the court sided with Meta and permanently stayed the proceedings in Canada, reinforcing the importance of upholding forum selection clauses in digital commercial relationships. However, given Gorenstein's self-represented status and the broader public interest in clarifying such contractual issues, the court declined to award costs to Meta.