Preserving Your Legal Rights Against Pokemon Go

As of this afternoon, Pokemon Go has officially arrived in Canada. The number of downloads for the augmented reality game were so high that they crashed the app’s servers.

If you haven’t been paying attention, the introduction of this real-time in-public game has created  concerns around trespass, robbery, and even murder.

Pokemon hunting has resulted in police being alerted on suspicious behaviour, only to find people walking in circles staring at their phones. These hapless players have also been targeted by criminals based on their blind meandering. At least one attempted murder suspect has been apprehended due to the Pokemon hunt, and a dead body (no foul play suspected) was discovered.

Some people have resorted to signs to keep players out, others have tried dog poo. Either way, it seems that non-players are not impressed.

Some have capitalized on the phenomenon, using “lures” to attract players. Uber drivers are specializing in Pokemon locations. Travel agencies are offering Pokemon tours, and independent entrepreneurs are selling Google maps with important landmarks. There are even suggestions that t it’s a great way for us to re-acquaint ourselves with our urban surroundings.

It’s unclear whether any of this interference by real property owners could give rise to claims of detinue, or the right of replevin to recover a Pikachu or Mewtwo (don’t worry, I don’t know what those are either).

Questions of attractive nuisance and occupier’s liability are likely to arise. Otherwise secure premises unwittingly hosting a “gym” or “poke stop” might be well informed to also download the app to take reasonable precautions to secure dangers and take additional measures to keep visitors out.

Although Toronto residents scoffed at recent attempts to ban walking while texting, the Pokemon Go phenomenon may give greater weight to the debate if there are actual injuries.

Employees are being cautioned not to go hunting during work hours. More people are interested in Pokemon Go than they are in going on dates, as its popularity is exceeding apps like Tinder. It’s already affecting personal relationships, which some family lawyers may rejoice in.

The greatest legal risks though may come from the game itself. In order to sign up users grant full access to their Google account, which creates enormous cyber security issues.

The real problem might be in the Terms of Service. The company behind Pokemon Go, Niantic, takes measures to ensure that Pokemons don’t appear in roadways, airport runways, or in bodies of water, and they provide users a form to report any inappropriate locations.

If there is an inevitable lawsuit, Niantic is likely to rely on the TOS to rebuff any claims. When sighing up, the user relieves Niantic of any liability and agrees to follow any domestic laws. The strongest component of these terms is the arbitration clause:


In order to opt out, users must send an email to within 30 days of their agreement to the terms, with “Arbitration Opt-out Notice” in the subject line. Failure to do so “…will be deemed to have knowingly and intentionally waived your right to litigate…”

Even if you never have a personal legal dispute against Niantic personally, the best revenge if you are getting annoyed by the swarm of Pokemon Go players is a swarm of Opt-Out notices.

You’re lucky, you still have time. Today is just day one.


My first 2 minutes playing Pokemon Go. Hopefully my last 2 minutes.

My first 2 minutes playing Pokemon Go. Hopefully my last 2 minutes.


  1. I believe the arbitration clause is unlikely to be upheld in many provinces (especially BC and Quebec) –

    On the USA side, with a new SCOTUS panel, there is a good chance they would not allow a class action to be defeated by an arbitration clause.

    But of course, opting out may be the safest and saves the possibility of an argument.



    You’re largely correct, except Seidel v. TELUS Communications Inc. should also be understood in the context of B.C.’s Business Practices and Consumer Protection Act and the split Court’s factual determination of a need for access to justice.

    The majority’s holding here was that the Act already conferred rights on the parties which could not be protected within private arbitration, and for that reason they could not contract out of these rights.

    In Ontario, Québec and Alberta, the consumer protection statutes expressly prohibits arbitration agreements and waiver of class proceedings clauses in consumer agreements. For example, Ontario’s Consumer Protection Act states,

    No waiver of substantive and procedural rights
    7. (1) The substantive and procedural rights given under this Act apply despite any agreement or waiver to the contrary.

    Limitation on effect of term requiring arbitration
    (2) Without limiting the generality of subsection (1), any term or acknowledgment in a consumer agreement or a related agreement that requires or has the effect of requiring that disputes arising out of the consumer agreement be submitted to arbitration is invalid insofar as it prevents a consumer from exercising a right to commence an action in the Superior Court of Justice given under this Act.

    Class proceedings
    8. (1) A consumer may commence a proceeding on behalf of members of a class under the Class Proceedings Act, 1992 or may become a member of a class in such a proceeding in respect of a dispute arising out of a consumer agreement despite any term or acknowledgment in the consumer agreement or a related agreement that purports to prevent or has the effect of preventing the consumer from commencing or becoming a member of a class proceeding.

    In Alberta, permission from the Minister is required to include such clauses.

    The application of Seidel since 2011 has been more limited in some circumstances. For example, the Federal Court in Murphy v. Compagnie Amway Canada noted that both parties relied on Seidel, but distinguished that case from it by pointing to a long string of case law indicating Canada is an arbitrary-friendly jurisdiction. The Court found that outside of the efficiencies sought through class proceedings, a more narrow interpretation of Seidel was warranted,

    [50]           The Court has not been persuaded that the “preferable procedure” doctrine is applicable in the circumstances and the Federal Courts Rules sections on class proceedings do not support the plaintiff’s argument on this issue.

    [51]           Nor has the Court been persuaded that upholding the class action waiver in the present circumstances would be unconscionable as implied by the plaintiff. On this point, the Court observes that in Siedel, while the majority chose not to address the doctrine of unconscionabilty (para 45), the minority would not have applied the doctrine, noting that “the courts have instead left the question whether arbitration is appropriate for particular categories of disputes to the discretion of the legislatures” (para 172).

    [52]           In sum, the Court finds that, absent clear legislative language prohibiting class action waivers, it must give effect to the parties’ agreement to arbitrate. Given that the plaintiff has argued that such intent can be found, in particular in the Competition Act, the Court now turns to this question.

    Similarly, in the recent B.C. privacy class action against Facebook, Douez v. Facebook, Inc., the court rejected that Seidel applied because of the lack of any forum selection clauses in the Privacy ActDepending on the facts, it might be possible to see some sort of privacy law action over Pokemon Go.

    We will have to see how the newly constituted SCOTUS rules, but their very recent decision in DIRECTV, Inc. v. Imburgia upheld binding arbitration despite explicit statutory consumer protection legislation in California to the contrary.

    This is still a largely unsettled area of the law, and the opt-out mechanisms provided by Niantic do provide greater claim to enforceability.

  3. I think an argument can be made that the Supreme Court is recently warming up to the idea that access to justice should be the prevailing concern in the class action context (e.g. Marcotte

    It will be exciting to see how the Supreme Court will decide the appeal for Douez. The BC Court of Appeal’s analysis seems to differ from the Saskatchewan Court of Appeal’s decision in Microcell ( where the SK Court of Appeal found that there was “strong cause” to set aside the forum selection clauses.

  4. Simon,

    The Supreme Court of Canada’s analysis in Marcotte was more about whether a proceeding could advance against several defendants without a direct cause of action against each. The fact that the Court relied upon access to justice in itself has very little bearing on the broader question of binding arbitration.

    To put it differently, the Superior Court of Quebec stated in Zoungrana c. Air Algérie (aff’d QCCA),

    72 …M. Zoungrana a le droit de poursuivre au Québec et ce sont certains des membres qui n’ont pas ce droit. Rien dans le raisonnement de la Cour suprême dans Marcotte ne peut leur donner ce droit.

    The court here is emphasizing that no right to sue can be created where there is no right to do so.  

    In other words, courts have rejected the Marcotte principle in other contexts, access to justice or otherwise. Keep in mind that the context of this case was also about jurisdiction, not binding arbitration, so the applicability of Marcotte principles here appear limited indeed where we already recognize an existing contractual relationship and the issue is the degree of judicial scrutiny of an arbitrator’s jurisdiction.

    Similarly, I’m unsure how  forum non conveniens analysis in either Douez or Microcell assists with binding arbitration. The court in Douez, which reviewed Microcell at paras 29-30, explained it as follows,

    [72]        Finally, though I recognize this has occurred in the jurisprudence, I doubt it is appropriate to analogize a mandatory arbitration clause to an exclusive forum selection clause. Mandatory arbitration does not move the litigation outside the jurisdiction; it merely changes the venue and (generally) offers confidentiality. A forum selection clause transposes the litigation into an entirely different legal system. The policy considerations are not the same.


    If the Supreme Court of Canada does finally resolve these conflicting line of cases, in Douez or elsewhere, it will be of great assistance in understanding how to treat binding arbitration clauses.