I love Canada.

True story, I visited not long ago and went to a sandwich shop, ordered a hoagie and they gave me a donut for free.

Gave me a donut. Free.

I mean come on.

Another thing to love about Canadians is that they don’t have goofy laws like the TCPA or class action lawsuits. So if you are a Canadian company being sued in the United States, you really want to go to your home in the Great White North. (It’s all capitals, isn’t it?)

Well here in America we have this thing called forum not conveniens– which is essentially a doctrine that allows forum companies to litigate cases in their own courts as long as there is a genuine remedy and certain other factors are met. This is a case regarding a helicopter crash in Brazil brought by people who lived in Brazil against a Brazilian company and decided to sue in America. It did not work.

But it’s a little different from a Canadian company being sued in a US court by an American who received calls in America, as we just pointed out in Manufacturer v. Elavon, Inc.., 2:20-cv-02960-SVW-MAA, 2021 US Dist. LEXIS 80066 (CD Cal. March 8, 2021)

In Maker the defendant sued the Canadian company alleging that it violated the TCPA. (Sidenote: The TCPA applies to all companies calling people to the United States, so yes, foreign domestic companies can be held liable.) But the Canadian company asked the court to dismiss the case and allow that she be prosecuted only in Canada on forum not conveniens lands.

the Maker The court refused for the most interesting reason: the court found that Canadians don’t revere their smartphones the way Americans do and didn’t allow proper recourse for unwanted telemarketing calls. That is, the Court found that the defendant failed to establish that the plaintiff would have an adequate remedy in Canada since Canadians do not have a TCPA equivalent. And yes, there are common law doctrines in Canada that protect privacy, but nothing as meaty and insane as the TCPA’s $500 to $1500 statutory damages, so the case is deadlocked in the USA.

Shit, huh?

I know there are a number of Canadian-based software platforms that help US companies gain exposure. Keep this case in mind folks.

© Copyright 2022 Squire Patton Boggs (USA) LLPNational Law Review, Volume XI, Number 123


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