Should I Stay or Should I Go?

  • March 24, 2023
  • Irfan Kara & Craig Gilchrist

In the recent decision of Facebook, Inc. v. Douez, 2023 BCCA 40, the British Columbia Court of Appeal allowed the defendants to appeal a liability decision even though the damages trials were still outstanding. In doing so, the Court confirmed that while there is a general aversion to “litigation in slices” it may be appropriate for an appeal to proceed where it has the potential to create efficiencies and avoid further proceedings in a lower court.


This decision arises in the class proceeding alleging that Facebook used class members’ names and images in an advertising program without their consent, contrary to various privacy statutes.

In November 2021, the plaintiff filed an application to have both liability and damages determined at a summary trial. The summary trial application was heard in January 2022, and in a decision released on June 2, 2022, the trial judge determined that the liability issues were suitable for summary trial and held that the plaintiff had established liability against Facebook. However, the trial judge determined that the matter of damages was not suitable for a summary trial, holding that resolving the issue of damages required a conventional trial.

Facebook commenced an appeal of the trial judge’s decision on liability and applied for a stay of the damages trial pending the outcome of the appeal. The trial judge dismissed the application for a stay of the damages trial, and the trial was scheduled for 24 days commencing in November 2023.