Google Inc. v. Equustek Solutions Inc. et al

Filing 1

COMPLAINT for declaratory and injunctive relief against All Defendants ( Filing fee $ 400, receipt number 0971-11571971.). Filed byGoogle Inc.. (Attachments: # 1 Civil Cover Sheet)(Caruso, Margret) (Filed on 7/24/2017)

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 1 of 143

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP
Margret M. Caruso (CA Bar No. 243473)
2
[e-mail]
Carolyn M. Homer (CA Bar No. 286441)
3
[e-mail]
555 Twin Dolphin Drive, 5th Floor
4 Redwood Shores, California 94065-2139
Telephone:
[phone]
5 Facsimile:
[phone]
6 Attorneys for Plaintiff
Google Inc.
7
8

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

9
10
11 Google Inc.,
12

Case No. 17-CV-________________
Plaintiff,
COMPLAINT

13

vs.

14 Equustek Solutions Inc., Clarma
Enterprises Inc. and Robert Angus,
15
Defendants.
16
17
18
19
20
21
22
23
24
25
26
27
28

COMPLAINT

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1

Plaintiff Google Inc. (“Google”), by and through its attorneys, hereby alleges:

2
3

INTRODUCTION
1.

Google brings this action to prevent enforcement in the United States of a Canadian

4 order that prohibits Google from publishing within the United States search result information
5 about the contents of the internet. As part of a Canadian lawsuit brought by Canadian plaintiffs
6 against Canadian defendants, a Canadian trial court enjoined Google (a non-party based in
7 California) from including in its search results links to dozens of the Canadian defendants’
8 websites—not just on Google’s www.google.ca site for Canada, but worldwide, including within
9 the United States. As a result, Google, alone among search engines and other providers of
10 interactive computer services, is compelled to censor the information it provides to its users
11 around the globe about the existence of the Canadian defendants’ websites.
12

2.

The Canadian trial court recognized that Google is an “innocent bystander” to the

13 case. Nevertheless, it issued a novel worldwide order against Google, restricting what information
14 an American company can provide to people inside of the United States and around the world.
15 Google appealed the order to the Court of Appeal and then the Supreme Court of Canada. There,
16 the Attorney General of Canada intervened to argue the order disregarded principles of
17 territoriality and international comity to the detriment of Canadian law enforcement. Although the
18 Canadian plaintiffs acknowledged the risk that Canadian courts would misapply U.S. law, they
19 urged that it was not an issue for the Canadian court to consider; it would be up to a U.S. court to
20 clarify U.S. law.
21

3.

The Supreme Court of Canada affirmed the global injunction against Google on

22 June 28, 2017, dismissing Google’s concerns about the injunction violating U.S. law as
23 “theoretical.” The opinion recognizes that Google is an innocent non-party which cannot be held
24 “liable” for any underlying competitive harm, but simultaneously justifies an unprecedented global
25 injunction by characterizing Google—a single provider on interactive computer services—as “the
26 determinative player in allowing the harm to occur.” As of the June 28, 2017 decision, Google
27 has exhausted its Canadian appeals.
28
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1

4.

Google now turns to this Court, asking it to declare that the rights established by

2 the First Amendment and the Communications Decency Act are not merely theoretical. The
3 Canadian order is repugnant to those rights, and the order violates principles of international
4 comity, particularly since the Canadian plaintiffs never established any violation of their rights
5 under U.S. law. Pursuant to well-established United States law, Google seeks a declaratory
6 judgment that the Canadian court’s order cannot be enforced in the United States and an order
7 enjoining that enforcement.
8
9

PARTIES
5.

Plaintiff Google provides an internet search engine service. Google is a subsidiary

10 of Alphabet Inc., and is incorporated in Delaware with its principal place of business in Mountain
11 View, California.
12

6.

Upon information and belief, Defendant Equustek Solutions Inc. is a provider of

13 industrial networking technology. Defendant Equustek Solutions Inc. is incorporated in British
14 Columbia, Canada with its principal place of business at 5489 Byrne Road Burnaby, British
15 Columbia, V5J3J1, Canada.
16

7.

Upon information and belief, Defendant Clarma Enterprises Inc. is incorporated in

17 British Columbia, Canada with its registered office at Box 12102, Suite 1008, 808 Nelson Street,
18 Vancouver, British Columbia, V6Z2H2, Canada.
19

8.

Upon information and belief, Defendant Robert Angus is a professional engineer

20 and principal of Defendants Equustek Solutions Inc. and Clarma Enterprises Inc., with a last
21 known place of residence at 1838 W. 19th Avenue, Vancouver, British Columbia, V6J2N9,
22 Canada.
23
24

JURISDICTION & VENUE
9.

This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this

25 action arises under federal law, namely the First Amendment to the U.S. Constitution and the
26 Communications Decency Act, 47 U.S.C. § 230.
27

10.

This Court is authorized to award the requested declaratory and injunctive relief

28 under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. An “actual controversy” exists in the
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1 Northern District of California regarding Google taking and continuing to take actions in the
2 United States to comply with the delisting order the Defendants (collectively “Equustek”)
3 obtained in Canada.
4

11.

This Court has personal jurisdiction over the Defendants because, inter alia, the

5 Defendants have knowingly engaged in a course of conduct whereby they sought and obtained
6 injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring
7 Google to undertake actions in the United States—specifically, to delist search results in the
8 United States and throughout the world. In November 2012 Equustek served Google with a
9 Notice of Application to the British Columbia court at Google’s offices in Mountain View,
10 California. Equustek thereafter renewed the Application for a delisting injunction on May 13,
11 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position
12 adverse to Google through the Canadian appellate process. The Supreme Court of Canada
13 confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to
14 take steps where its search engine is controlled—namely, California.
15

12.

A substantial part of the events or omissions giving rise to the claims alleged in this

16 Complaint occurred in this Judicial District, specifically, Google’s delisting of search results
17 pursuant to the Canadian court order. Venue therefore lies in the United States District Court for
18 the Northern District of California pursuant to 28 U.S.C. § 1391(b)(2).
19
20
21

FACTUAL BACKGROUND
Google Offers Search Services Around The World.
13.

Google is an American company that offers a free and popular internet search

22 engine, accessible at www.google.com. Google’s United States and worldwide search engine
23 operations are conducted from, and controlled by, Google’s headquarters in Mountain View,
24 California. Google also offers it search engine via more than a hundred different country-specific
25 portals, such as www.google.mx and www.google.fr (targeted, respectively, to users in Mexico
26 and France). Google’s Canadian portal, www.google.ca, is offered in English and French.
27 Google.ca has historically received approximately 95% of all Google searches originating from
28 Canada.
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1

14.

Google’s search results are based on Google’s computers crawling, indexing, and

2 algorithmically analyzing the trillions of webpages that make up the public internet. The results of
3 each individual search are returned automatically, but they are based on judgments Google has
4 made, and subsequently programmed into Google’s ranking algorithms, about what material users
5 are most likely to find responsive to their queries.
6

15.

Google is not the internet. The vast majority of internet websites are hosted by and

7 operated through service providers other than Google. The entities with the technical ability to
8 remove websites or content from the internet altogether are the websites’ owners, operators,
9 registrars, and hosts—not Google.
10

16.

Removing a website link from the Google search index neither prevents public

11 access to the website, nor removes the website from the internet at large. Even if a website link
12 does not show up in Google’s search results, anyone can still access a live website via other
13 means, including by entering the website’s address in a web browser, finding the website through
14 other search engines (such as Bing or Yahoo), or clicking on a link contained on a website (e.g.,
15 CNN.com), or in an email, social media post, or electronic advertisement.
16 Equustek Sues Competitor Datalink In Canada.
17

17.

In 2011, in Vancouver, British Columbia, Equustek sued a group of individual and

18 corporate defendants connected with a former distributor and rival business selling network
19 interfacing hardware (collectively, “Datalink”). The case is captioned Equustek Solutions Inc. v.
20 Jack, Case No. S112421 (Sup. Ct. British Columbia). Equustek alleged, inter alia, that Datalink
21 had colluded with a former Equustek engineer to incorporate Equustek’s trade secret hardware
22 designs and source code into a Datalink product, the GW1000; that Datalink sold the GW1000
23 instead of Equustek products that customers thought they were ordering; and that Datalink made
24 misleading statements about Equustek on its websites.
25

18.

The Canadian court initially denied the asset freeze Equustek sought. But after

26 Datalink refused to comply with court discovery orders and orders to remove references to
27 Equustek from its website, and after Datalink stopped appearing in the litigation, Equustek
28 procured multiple court orders against Datalink in the summer of 2012. These included the
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1 striking of Datalink’s response to Equustek’s initial pleading, an asset freeze, and a permanent
2 injunction against Datalink continuing to sell the product at issue. Datalink refused to comply,
3 continued to operate its business, and fled the country. Finding that the Datalink defendants may
4 be in contempt of court, the Canadian court issued an arrest warrant in September 2012 for the
5 primary individual defendant, but he has not yet been apprehended. To this day, Datalink
6 continues to offer the GW1000 for sale online.
7 Equustek Obtains Canadian Injunction Prohibiting Google From Including Links To
8 Datalink’s Websites In Search Results Displayed Anywhere In The World.
9

19.

In September 2012 Equustek asked Google to “cease indexing” Datalink’s websites

10 in Google’s search results. Pursuant to its policies, Google declined to do so at that time. In
11 December 2012, the Canadian court granted Equustek’s motion for a further injunction against
12 Datalink, “prohibiting [Datalink] from carrying on business through any website.” In light of that
13 order, and pursuant to its policies, Google voluntarily blocked more than 300 individual webpage
14 links associated with Datalink from appearing in Google’s Canadian search results on
15 www.google.ca. However, Google rejected Equustek’s demand that Google “delist” all links to
16 Datalink’s websites on its search services targeted to users outside of Canada’s borders, including
17 in the United States.
18

20.

Equustek then returned to court, seeking an order requiring Google to remove the

19 webpage links from Google’s global search results. On June 13, 2014, the Canadian trial court
20 issued an unprecedented order, requiring that Google delist Datalink search results in every
21 country Google search services are available, including in the United States. The court recognized
22 that Google was an “innocent bystander,” which “operates its search engines in the ordinary
23 course of its business, independently of the [Datalink] defendants and not in order to assist them in
24 their breach.” Nevertheless, the court found that Google “is unwittingly facilitating the
25 defendants’ ongoing breaches of this Court’s orders” and concluded “[t]here is no other practical
26 way for the defendants’ website sales to be stopped.” The court did not cite any evidence in
27 support of its finding, yet it “compell[ed] Google to block the defendants’ websites from Google’s
28 search results world-wide.”
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1

21.

Google sought a stay of the June 2014 order pending its appeal, but that was

2 denied. Since then, Google has complied with the Canadian court’s order, delisting 33 Datalink
3 websites from its search results globally, whether those results were being generated for users
4 based in Australia or Zambia. Because Datalink nonetheless continued to develop and operate
5 other websites selling the GW1000, the trial court issued, at Datalink’s request, nine additional
6 supplemental orders requiring Google to block more than 75 additional Datalink-associated
7 webpages and websites. Collectively, the June 2014 order and all supplements are referred to
8 herein as the “Canadian Order.” A true and correct copy of the June 13, 2014 order and the
9 supplemental orders issued thus far are attached as Exhibit A. Google has continued to comply
10 with the Canadian Order.
11

22.

The Canadian Order has proven ineffective in preventing Datalink’s online

12 operations. Although the Canadian Order has been in effect for more than three years, many
13 Datalink websites remain publicly available. More than a third of the Datalink websites Google
14 delisted are still active today. It does not appear that Equustek has sought to enjoin the registrars
15 or webhosts of Datalink’s websites. Unlike mere search delisting, registrars and webhosts have
16 the power to remove the enjoined content from the internet.
17

23.

Equustek has only sought to enjoin Google’s search results; it has neither sought

18 nor obtained similar orders mandating that other search engines delist the Datalink websites.
19 Instead, searching for “GW1000” on Google’s competitors’ search engines shows that they are
20 returning links to Datalink websites that Google was ordered to delist.
21 Google Exhausts Its Appeals In Canada.
22

24.

Google promptly appealed the Canadian Order to the Court of Appeal for British

23 Columbia, which affirmed the order on June 11, 2015. The Court of Appeal for British Columbia
24 held, among other things, that the Canadian Order did not “offend the sensibilities of any other
25 nation.”
26

25.

Google further appealed to the Supreme Court of Canada, which affirmed the order

27 on June 28, 2017. A true and correct copy of the June 28, 2017 Supreme Court of Canada order is
28 attached as Exhibit B. Applying a “balance of convenience” test, the Supreme Court of Canada
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1 held that there is “no harm to Google which can be placed on its ‘inconvenience’ scale arising
2 from the global reach of the order” mandating indefinite compliance because the “only obligation
3 the interlocutory injunction creates is for Google to de-index the Datalink websites.” The
4 Supreme Court did not explain how its characterization of Google as the “determinative player in
5 allowing the harm to occur” to Equustek was possible when, despite three years of Google’s
6 compliance, Datalink websites are still live and in business, and can still be found through other
7 search engines and internet sources.
8

26.

In a dissenting opinion, two Justices of the Supreme Court of Canada contended

9 that the Canadian Order was improper, and the trial court should have exercised judicial restraint.
10 They explained that “Google did not carry out the act prohibited by the December 2012 Order.”
11 Nor has Google “aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has
12 no information relevant to the underlying proceedings.” Instead of simply preserving the status
13 quo, “[t]he Google Order is mandatory and requires [ongoing] court supervision,” including
14 through multiple supplemental orders. Meanwhile, the Datalink websites are still live, and can
15 still “be found using other search engines, links from other sites, bookmarks, email, social media,
16 printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for
17 business on the Internet whether Google searches list them or not.” “The most that can be said is
18 that the Google Order might reduce the harm to Equustek which Google is inadvertently
19 facilitating.” The dissent concluded that the Canadian Order therefore “has not been shown to be
20 effective,” particularly where “Equustek has alternative remedies.”
21 A Case Or Controversy Exists.
22

27.

With no further means of appeal of the Canadian Order, Google seeks relief from

23 this United States Court. The Canadian Order is an enforcement order, requiring Google to take
24 actions in the United States to delist publicly available content from its search results in the United
25 States. Equustek expected that the United States would be the next venue in its battle. Its counsel
26 argued before the Supreme Court of Canada that the enforceability of the Canadian Order “in the
27 United States is a question for U.S. courts and has nothing to do with this case,” and that after the
28 Canadian court’s decision, “the American courts [can] then tell us what the law really is.”
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1

28.

Without a declaration from a United States court that enforcement of the Canadian

2 Order in the U.S. is unlawful, Google believes that Equustek will continue to pursue enforcement
3 of the Canadian Order and seek to hold Google in contempt if Google stops complying with it for
4 search results displayed within the United States.
5

29.

Google now seeks a declaration from this Court that will protect its rights by

6 enjoining enforcement of the Canadian Order in the United States. This Court’s order will
7 confirm that the rights established by the First Amendment and the Communications Decency Act
8 are not merely “theoretical.”
9

FIRST CAUSE OF ACTION

10

U.S. CONST. Amend. I; Declaratory Judgment Act, 28 U.S.C. § 2201

11

(Against All Defendants)

12

30.

Google incorporates all of the above paragraphs as though fully set forth herein.

13

31.

The First Amendment provides: “Congress shall make no law . . . abridging the

14 freedom of speech, or of the press.” U.S. CONST. Amend. I. Internet search results are fully
15 protected speech under the First Amendment.
16

32.

The First Amendment’s prohibition on abridgments of speech extends to judicial

17 restraints on free speech. Because the Canadian Order is directed to a specific speaker—Google—
18 and is content-specific, it is subject to strict scrutiny.
19

33.

Enforcing the Canadian Order in the United States would violate the First

20 Amendment. The Canadian Order furthers no compelling interest (nor a substantial interest), and
21 is not narrowly tailored to achieve one. The existence of the Datalink websites is, and remains, a
22 matter of public record. Equustek cannot show that it has no alternatives available other than
23 enjoining Google’s search results outside of Canada. Upon information and belief, Equustek has
24 not sought similar delisting injunctions against the world’s other search engines, such as Bing or
25 Yahoo; has not taken action against other third-party websites (such as social media or press
26 websites) displaying links to Datalink websites; has not pursued more targeted remedies against
27 Datalink’s registrars or its webhosts, which could remove Datalink’s websites from the internet
28
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1 entirely; and has not stopped the sale of Datalink’s products through Amazon. Equustek did not
2 even seek to seal the Datalink website addresses themselves before any court.
3

34.

On information and belief, if Defendants are not enjoined from enforcing the

4 Canadian Order in the United States, Defendants will continue to use the Canadian Order to
5 require Google to take action in the United States to delist search results in the United States and
6 around the world.
7

35.

As the direct and proximate result of Defendants’ conduct, Google has suffered

8 and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent
9 injunctive relief. Although Google considers enforcement of the Canadian Order to be unlawful in
10 the United States, it is presently complying with it in the United States until such time as this
11 Court affords relief.
12

SECOND CAUSE OF ACTION

13

Communications Decency Act, 47 U.S.C. § 230; Declaratory Judgment Act, 28 U.S.C. § 2201

14

(Against All Defendants)

15

36.

Google incorporates all of the above paragraphs as though fully set forth herein.

16

37.

The Communications Decency Act provides clear legal immunity to providers of

17 interactive computer services for content on their services created by others: “No provider or user
18 of an interactive computer service shall be treated as the publisher or speaker of any information
19 provided by another information content provider.” 47 U.S.C. § 230(c)(1).
20

38.

The Communications Decency Act preempts law inconsistent with it, other than

21 U.S. federal intellectual property law. 47 U.S.C. § 230(e)(3); Perfect 10, Inc. v. CCBill LLC, 488
22 F. 3d 1102, 1107-08, 1118-19 (9th Cir. 2007). Because Equustek’s action is grounded in
23 Canadian trade secret law (not U.S. federal intellectual property law or trade secret laws), Section
24 230 preempts Equustek’s attempted enforcement of the Canadian Order against Google in the
25 United States.
26

39.

Google Search satisfies Section 230’s definition of an “interactive computer

27 service” because it is an information service providing access to the Internet. 47 U.S.C. §
28 230(f)(2).
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1

40.

Datalink, not Google, is the information content provider that supplies the content

2 of its websites. The fact that Google’s search results may contain snippets from third-party
3 websites such as Datalink’s does not transform those snippets into content created by Google.
4

41.

Enforcement of the Canadian Order treats Google as if it were the publisher of the

5 contents of the Datalink websites by enjoining Google’s display of accurate search results.
6 Equustek’s enforcement of the Canadian Order boils down to forcing Google to exclude material
7 that third parties have posted online.
8

42.

On information and belief, if Defendants are not enjoined from enforcing the

9 Canadian Order in the United States, Defendants will continue to use the Canadian Order to
10 require Google to delist search results in the United States.
11

43.

As the direct and proximate result of Defendants’ conduct, Google has suffered

12 and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent
13 injunctive relief. Although Google considers enforcement of the Canadian Order to be unlawful in
14 the United States, it is presently complying with it in the United States until such time as this
15 Court affords relief.
16

THIRD CAUSE OF ACTION

17

Enforcement Trespasses on Comity; Declaratory Judgment Act, 28 U.S.C. § 2201

18

(Against All Defendants)

19

44.

Google incorporates all of the above paragraphs as though fully set forth herein.

20

45.

It is a foundational principle of jurisprudence that each country is the master of its

21 own territory. Foreign courts therefore ordinarily refrain from issuing worldwide injunctions
22 because they only have jurisdiction to prescribe conduct that, wholly or in substantial part, takes
23 place within or affects their own territories.
24

46.

Recognizing these principles, the Canadian Attorney General intervened in

25 Google’s appeal to the Supreme Court of Canada and argued that the Canadian Order “constitutes
26 an impermissible exercise of extraterritorial enforcement jurisdiction.”
27
28
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1

47.

Disregarding this, the Supreme Court of Canada declared “The Internet has no

2 borders—its natural habitat is global” as a means to justify a global injunction. But no one
3 country should purport to control the global internet.
4

48.

Equustek’s counsel repeatedly acknowledged that United States courts might view

5 the Canadian Order as violating United States law—but urged the Canadian courts to not reverse
6 on that basis. For example, Equustek’s counsel argued to the Supreme Court of Canada: “Whether
7 the order might be enforceable in the United States is a question for US courts and has nothing to
8 do with this case.”
9

49.

The Canadian Order is repugnant to United States public policy surrounding the

10 First Amendment and the immunity against imposing liability on interactive computer service
11 providers.
12

50.

The Canadian Order is further repugnant to United States public policy because it

13 issued an injunction against Google, an innocent non-party, merely for the sake of “convenience.”
14 The non-party injunction standard applied by the Supreme Court of Canada did not come close to
15 satisfying well-settled United States law for imposing injunctions. The Canadian standard only
16 considers “the balance of convenience,” and not the “balance of equities,” and the Canadian court
17 placed the burden on Google, a non-party, to disprove Equustek’s rights in every country outside
18 of Canada, rather on Equustek, the plaintiff in the action, to prove its entitlement to removal of
19 search results in each country in which it sought removal. Moreover, the Canadian standard took
20 no account of the “public interest” at all.
21

51.

As aptly summarized by the dissenting justices in the Supreme Court of Canada:

22 Equustek “seek[s] a novel form of equitable relief―an effectively permanent injunction, against
23 an innocent third party, that requires court supervision, has not been shown to be effective, and for
24 which alternative remedies are available.”
25

52.

The Canadian Order purports to place the Canadian court in the position of

26 supervising the law enforcement activities of a foreign sovereign nation (the United States) against
27 the United States’ own citizens on American soil. Because the Canadian courts ignored principles
28 of international comity, corrective action by this Court is required. This Court need not defer to
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1

the Canadian Order because the Canadian courts failed to extend proper comity to the United

2 States,
3

53.

On information and belief, if Defendants are not enjoined from enforcing the

4 Canadian Order in the United States, Defendants will continue to use the Canadian Order to
5 require Google to delist search results in the United States.
6

54.

As the direct and proximate result of Defendants’ conduct, Google has suffered

7

and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent

8

injunctive relief.
PRAYER FOR RELIEF

9
10

WHEREFORE, Google respectfully requests the following relief:

11

1.

Declare that the Canadian Order is unenforceable in the United States as

12 inconsistent with the First Amendment, the Communications Decency Act, and the public policy
13
14
15
16
17
18
19

surrounding enforceability of foreign judgments pursuant to international comity;
2.

Issue judgment in Google’s favor and against Defendants on all causes of action

alleged herein;
3.

Grant Google preliminary and permanent injunctive relief enjoining enforcement of

the Canadian Order in the United States;
4.

Grant such other and further relief as the Court may deem to be just and proper.

DATED: July 24, 2017

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

20
21
22
23
24
25

By
M^gret yy. Caruso
Carolyn M. Homer
Attorneys for Plaintiff
Google Inc.

26
27
28
-13complaint

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EXHIBIT A

-1
1
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1

IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE SUPREME COURT OF BRITISH COLUMBIA
Equustek Solutions Inc. v. Jack,
2014 BCSC 1063
Date: 20140613
Docket: S112421
Registry: Vancouver
Between:
Equustek Solutions Inc.
Equustek Solutions Inc.
Robert Angus and Clarma Enterprises Inc.
Robert Angus and Clarma Enterprises Inc.
Plaintiffs
And
Morgan Jack, Andrew Crawford,
Morgan Jack, Andrew Crawford,
Datalink Technologies Gateways Inc., Datalink 5, Datalink 6,
Datalink Technologies Gateways Inc., Datalink 5, Datalink 6,
John Doe, Datalink Technologies Gateways LLC and Lee Ingraham
John Doe, Datalink Technologies Gateways LLC and Lee Ingraham
Defendants
Honourable
Fenlon
Before: The Honourable Madam Justice Fenton

Reasons for Judgment
Reasons for Judgment
Counsel for the Plaintiffs:
Counsel for the Respondents to Application
the Respondents
Corporation and Google Inc.:
Google Canada Corporation and Google Inc.:
Place and Date of Hearing:

R.S. Fleming
S.R. Schachter, Q.C.
Schachter,
G.B. Gomery, Q.C.
Gomery,
Vancouver,
Vancouver, B.C.
October 22 and 23, 2013
February 7, 2014

Further Written Submissions:
Further

March 7 and 24, 2014
May 23 and 29, 2014

Date of Judgment:
Place and Date of Judgment:

Vancouver,
Vancouver, B.C.
June 13, 2014
June

2014 BCSC 1063 (CanLII)
(CanLII)

Citation:

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Equustek Solutions Inc. v. Jack
I.
I.

INTRODUCTION
INTRODUCTION

[1]
[1]

Page 2

The plaintiffs apply for an interim injunction restraining two non-parties,
two
The plaintiffs

websites in search results generated by Google's search engines.
websites in search results generated by Google’s search engines. This application
novel
raises novel questions about the Court's authority to make such an order against a
the Court’s authority
internet
global internet service provider.
[2]
[2]

Although
Although the plaintiffs seek an order against Google Inc. and Google Canada

is
Corporation, there is no evidence that Google Canada Corporation is involved in the
at
search services the plaintiffs seek to enjoin. It was common ground at the hearing
sought,
that Google Inc. provides those internet search services. The order sought, if it is to
Inc.
those internet
be made, must thus be made against Google Inc. Accordingly, when I use the term
thus
Inc.
“Google”, I am referring only to
"Google", I am referring only to Google Inc. I use the term "Google Canada” to refer
Inc. I use the term “Google Canada" to refer
to Google Canada Corporation in places.
II.
II.

THE UNDERLYING ACTION
THE UNDERLYING ACTION

[3]
[3]

The plaintiffs manufacture networking devices that allow complex industrial
manufacture
The

manufacturer
equipment made by one manufacturer to communicate with complex industrial
by another manufacturer.
equipment made by another manufacturer.
[4]
[4]

The plaintiffs claim that the defendants other than Andrew Crawford and Lee
The plaintiffs
the defendants

Ingraham (hereinafter referred to as "the defendants"), while
Ingraham (hereinafter referred to as “the defendants”), while acting as a distributor of
the plaintiffs' products, conspired with one of the plaintiffs' former engineering
the plaintiffs’
plaintiffs’
engineering
design
manufacture
employees and others to design and manufacture a competing product, the
defendants
GW1000. The plaintiffs say that the defendants designed their competing product
using the plaintiffs’ trade secrets.
plaintiffs' trade secrets.
[5]
[5]

The plaintiffs also claim that for many years before they made the GW1000
The plaintiffs
many
the

the defendants covered over the plaintiffs’ name and logo and passed off the
the defendants covered over the plaintiffs' name and logo and passed off the
plaintiffs’
manufacturing
plaintiffs' products as their own. Later when the defendants began manufacturing the
relied on the plaintiffs’ goodwill by exclusively advertising the
GW1000, they relied on the plaintiffs' goodwill by exclusively advertising the
plaintiffs’ products on their websites.
plaintiffs' products on their websites. The defendants then delivered their own

2014 BCSC 1063 (CanLII)
(CanLII)

Google Inc. and Google Canada Corporation, from including the defendants'
Inc.
from including the defendants’

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received orders for the plaintiffs' products,
competing product when they received orders for the plaintiffs’ products, in a tactic
when
amounting
“bait and switch”.
amounting to "bait and switch".
This underlying action was commenced on April 12, 2011. The defendants
underlying
The defendants

various
failed to comply with various court orders from the outset of proceedings, resulting in
the
resulting
struck
the defences of Morgan Jack and Datalink Technologies Gateways Inc. being struck
Technologies Gateways Inc.
June
in June 2012.
[7]
[7]

The defendants originally carried on business in Vancouver but now appear
The defendants
business Vancouver but now

virtual
to operate as a virtual company. They carry on business through a complex and
network
ever expanding network of websites through which they advertise and sell their
through
numerous
orders, including
product. These websites have been the subject of numerous court orders, including
a December 2012 order prohibiting the defendants from carrying on business
through
defendants continue
through any website. The defendants continue to sell the GW1000 on their websites
in violation of these court orders.
court
[8]
[8]

Google is not a party to this action. It operates and maintains internet search
maintains intemet

that include the defendants’ various websites in Google’s search results.
services that include the defendants' various websites in Google's search results.
Google acknowledges that it has the ability to remove websites from its search
acknowledges
remove
from
engine results, and routinely does so in various situations.
[9]
[9]

Following the December 2012 order prohibiting the defendants from carrying
from carrying

through
voluntarily complied with the plaintiffs’
on business through any website, Google voluntarily complied with the plaintiffs'
(“URLs”)
request to remove specific webpages or uniform resource locations ("URLs") from its
uniform
removing
Google.ca search results (i.e. from searches originating in Canada), removing 345
unwilling
URLs in total. However, Google is unwilling to block an entire category of URLs,
sometimes referred to as "mother sites"
results
sometimes referred to as “mother sites” from its search results worldwide.
III.
III.

POSITION OF THE PARTIES TO THIS APPLICATION
POSITION OF THE PARTIES TO THIS APPLICATION

[10]
[10]

The plaintiffs take the position that an injunction should be granted against
injunction should
The plaintiffs

Google because Google’s search engine facilitates the defendants’ ongoing breach
Google's search engine facilitates the defendants' ongoing
of the Court’s orders by leading customers to Datalink websites.
Court's orders

2014 BCSC 1063 (CanLII)
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[6]
[6]

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Google takes the position that the Court does not have jurisdiction over
[11] Google takes the position that the Court does not have jurisdiction over either
Inc.
Google Inc. or Google Canada because neither is present in British Columbia and
refraining from doing anything in either British Columbia or Canada. Google argues
anything
that even if this Court has jurisdiction, the order sought should not be made for two
could
main reasons: (i) because it would amount to a worldwide order that could not be
reasons: (i) because it would amount to a worldwide
enforced and (ii) because it would constitute an unwarranted intrusion into Google’s
constitute
unwarranted intrusion into Google's
lawful
lawful business activities as a search engine.
IV.
IV.

ISSUES
ISSUES

The application raises three main issues:
[12] The application raises three main issues:
(i)
(i)

Does this Court have territorial competence over a worldwide internet
search provider such as Google?

(ii)
(ii)

should
If the answer to the first question is yes, should this Court decline to
exercise jurisdiction on the basis that California is the more appropriate
forum?

(iii)

Should
Should the order sought be granted?

V.
ANALYSIS
V. ANALYSIS
1.
1.

Does the Court have territorial competence over Google?
Does the Court have territorial competence over Google?

Determining whether jurisdiction should be assumed in a case
[13] Determining whether jurisdiction should be assumed in a case with
interjurisdictional
interjurisdictional aspects has always been a complex question. The worldwide
internet or e-commerce has only made the task more challenging.
growth of intemet or e-commerce has only made the task more challenging.
[14] The starting point inin deciding whetherthe Court has territorial competence to
The starting point deciding whether the Court has territorial competence
make the order sought against Google is the Court Jurisdiction and Proceedings
Transfer Act, S.B.C. 2003, c. 28 [CJPTA] which codified and replaced the common
[CJPTA]
is established “by the existence of defined
law in this area. Territorial competence is established "by the existence of defined
connections
connections between the territory or legal system… and a party to the proceeding or
the territory legal system...

2014 BCSC 1063 (CanLII)
(CanLII)

because the application for an injunction does not relate to Google doing or
injunction
not relate to Google

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the facts on which the proceeding is based”: Stanway
the facts on which the proceeding is based": Stanvtey v. Wyeth Pharmaceuticals
Wyeth
Inc., 2009 BCCA 592 at para. 10.

The plaintiffs accept they bear the burden of establishing the Court's territorial
plaintiffs
bear the burden of establishing the Court’s territorial

the parties
not
standard
competence over Google. However, the parties do not agree on the standard of
applied to this
proof to be applied to this analysis.
(i)
[16]
[16]

Standard of Proof applies?
What Standard of Proof applies?

The plaintiffs argue that they need only show a good arguable case that
plaintiffs argue that they need only show

within the Court’s jurisdiction, sometimes
Google is within the Court's jurisdiction, sometimes described as a prima facie case.
submits that the ordinary, higher standard of proof on a balance
Google submits that the ordinary, higher standard of proof on a balance of
probabilities applies.

[17]
[17]

The Court of Appeal held that a plaintiff need only establish an arguable case
a plaintiff
only establish an arguable

is subject to the Court’s jurisdiction:
that a defendant is subject to the Court's jurisdiction: Purple Echo Productions, Inc.
Echo]
v. KCTS Television, 2008 BCCA 85 [Purple Echo] at paras. 41-42. That can be
asserting facts that, if proved, would found jurisdiction:
accomplished by asserting facts that, if proved, would found jurisdiction: Purple Echo
para. 36. However, this conclusion is predicated on the assumption that “[i]f an
at para. 36. However, this conclusion is predicated on the assumption that "[i]f an
case were made out, the case would continue with jurisdiction potentially
arguable case were made out, the case would continue with jurisdiction potentially
still a live issue”:
37. The Court of Appeal noted
still a live issue": Purple Echo at para. 37. The Court of Appeal noted that since a
determination under what is now Rule 21-8(1) is not a final determination, a prima
determination under what is now Rule 21-8(1) is
determination,

facie standard suffices: Purple Echo at para. 39. The standard of proof is thus clear
suffices:
39. The standard of proof is thus
when a defendant challenges jurisdiction. However, Google is not a defendant, but a
challenges jurisdiction. However,
not defendant,
non-party
an interim application.
non-party respondent on an interim application.
[18]
[18]

The order sought on this application is an interim one in the underlying action
sought
this
underlying

plaintiffs and defendants,
turn out to
between the plaintiffs and defendants, and if ordered, may also turn out to be timelimited
if the
made it is unlikely
will
limited against Google. However, if the order is made it is unlikely there will be
opportunity to consider the Court's jurisdiction to make an
another opportunity to consider the Court’s jurisdiction to make an order against
In that sense the issue of territorial competence on this application a final
Google. In that sense the issue of territorial competence on this application is a final
determination.

2014 BCSC 1063 (CanLII)
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[15]
[15]

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[19]
[19]

Page 6

On the other hand, the plaintiffs have had limited opportunity to gather
other
the plaintiffs
had limited opportunity

evidence in support of the jurisdictional facts they rely on to establish the Court’s
evidence in support of the jurisdictional facts they rely on to establish the Court's
member of the “Legal Removals" team in Google's legal department,
is a member of the "Legal Removals” team in Google’s legal department, but
discovery of Google's corporate structure and operations has been limited.
discovery of Google’s corporate structure and operations has been limited.
[20]
[20]

The Supreme Court of Canada addressed the challenge facing a court in
Canada addressed the challenge facing court

determining jurisdiction on interlocutory motions in Club Resorts Ltd. v. Van Breda,
jurisdiction
interlocutory motions
Ltd.
Breda]
2012 SCC 17, [2012] 1 S.C.R. 572 [Van Breda] at para. 72:
[72]
…[C]ourt decisions dealing with the assumption and the exercise of
...[C]ourt decisions
and
jurisdiction are
jurisdiction are usually interlocutory decisions made at the preliminary stages
interlocutory decisions made at
preliminary
typically raised before
of litigation. These issues are typically raised before the trial begins. As a
litigation. These
begins. As
result, even though such decisions can often be of critical importance to the
such
be of
parties and to the further conduct of the litigation, they must be made on the
of
litigation, they must be made
basis of the pleadings, the affidavits of the parties and the documents in the
affidavits
parties
record before the judge, which might include expert reports or opinions about
which
reports or opinions
organization of
procedure in foreign
the state of foreign law and the organization of and procedure in foreign
to jurisdiction
courts. Issues of fact relevant to jurisdiction must be settled in this context,
often on a prima facie basis. These constraints underline the delicate role of
These
underline
delicate role
the motion judges who must consider these issues.
these
[21]
[21]

In my view, proof on a balance of probabilities is the appropriate standard on
proof
of probabilities the
In
standard

this
the jurisdictional ruling
this application because the jurisdictional ruling is a final one vis à vis the applicant
a
respondent.
that standard should be applied while recognizing
and respondent. However, that standard should be applied while recognizing that
plaintiffs
a limited opportunity
supporting
the plaintiffs have had a limited opportunity to marshal supporting evidence.
(ii)

[22]
[22]

plaintiffs
competence?
Have the plaintiffs established territorial competence?

I return now to the substantive question: Does Google fall into one of the
return now to the substantive question: Does Google fall into
of the

connecting
Neither
connecting factors specified in the CJPTA? Neither Google nor Google Canada is
nor Google Canada
of
British
of the
registered or has a place of business in British Columbia. Section 3(e) of the CJPTA
that:
provides that:
3
territorial
brought
A court has territorial competence in a proceeding that is brought
against a person only if
…
(e)
and substantial connection between British
there is a real and substantial connection between British
Columbia and the facts on which the proceeding against that person
is based.

2014 BCSC 1063 (CanLII)
(CanLII)

territorial competence over Google. They
Smith, who
territorial competence over Google. They have cross-examined Steven Smith, who

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[23] Section 10 of the
“a
and substantial connection”
[23] Section 10 of the CJPTA provides that "a real and substantial connection"
British
which
between British Columbia and the facts on which the proceeding is based is

connecting factors listed ins. 10, asserting that this application:
connecting factors listed in s. 10, asserting that this application:
(a)
is brought to enforce, assert, declare or determine proprietary or
brought to enforce,
possessory rights or a security interest in property in British Columbia that is
possessory
immovable or movable property,
property,
…
(h)
(h)

concerns a business carried on in British Columbia,

(i)
is a claim for an injunction ordering a party to do or refrain from doing
injunction
(i)
anything
(i)
in British Columbia, or
British Columbia,
(i)
(ii)
in relation to property in British Columbia that is immovable or
relation
British Columbia that is
(ii)
movable property,
property,

Before considering any these connecting factors individually, note that
[24] Before considering any ofof these connectingfactors individually, II note that
of
application of the presumptive factors in s. 10 of the CJPTA is contextual. The
the presumptive factors
contextual.
CJPTA, like many of the cases addressing conflicts of laws, focuses on parties to a
cases
conflicts
laws, focuses

dispute which one has
dispute in which one has a cause of action against the other. However, proceeding
against the other.
“an
is defined broadly in s. 1 of the CJPTA as "an action, suit, cause, matter, petition
suit,
a preliminary
proceeding or requisition proceeding and includes a procedure and a preliminary
requisition proceeding and includes
motion”. Thus, the "proceeding" with respect to which must answer the
motion". Thus, the “proceeding” with respect to which II must answer the question of
jurisdiction is not the underlying dispute between
plaintiffs and defendants
jurisdiction is not the underlying dispute between the plaintiffs and defendants but
the relief that is specifically sought against Google.
sought

Turning the connecting factors the plaintiffs rely on, first conclude that
[25] Turning to to the connecting factors the plaintiffsrely on, I Ifirst conclude that
s. 10(i) of the CJPTA is not applicable. The plaintiffs apply to compel Google to take
10(i) of the
plaintiffs
not
to compel

was vague about the location of
steps to alter its search engine. While Google was vague about the location of the
its
computers that
search engine program, it is certain that those computers
computers that operate the search engine program, it is certain that those computers
not
follows that
are not located in British Columbia. It follows that the order sought does not relate to
sought
taking
in British
or in
Google taking steps in British Columbia or in relation to property in British Columbia.
[26] I conclude that s. 10(a) of the
connecting
[26] I conclude that s. 10(a) of the CJPTA is applicable. This connecting factor
a presumptive substantial connection
proceeding brought
establishes a presumptive substantial connection in a proceeding brought to enforce

2014 BCSC 1063 (CanLII)
(CanLII)

to
plaintiffs
presumed to exist if certain facts pertain. The plaintiffs rely on three of the

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proprietary rights over immoveable or moveable property in British Columbia. The
proprietary rights over immoveable
in

plaintiffs’ intellectual property at the heart of
underlying
plaintiffs' intellectual property at the heart of the underlying action is moveable
rights.
[27]
[27]

The plaintiffs acknowledge that the vast majority of GW1000 sales occur
plaintiffs acknowledge that the vast majority of GW1000 sales

outside Canada, but accept that at least to the extent that the order sought
outside of Canada, but II accept that at least to the extent that the order sought
relates to the enforcement of intellectual property rights in British Columbia, s. 10(a)
intellectual property rights in British Columbia, s. 10(a)
be a weak connecting factor, but that is not a consideration at this
applies. It may be a weak connecting factor, but that is not a consideration at this
of
jurisdictional
stage of the jurisdictional analysis.
[28]
[28]

I conclude that s. 10(h) is also a connecting factor, and a stronger one,
conclude that
is
a connecting
stronger

the injunction sought concerns
carries on in British
because the injunction sought concerns a business that Google carries on in British
The question of whether Google carries on business in British
Columbia. The question of whether Google carries on business in British Columbia
requires a detailed consideration of Google’s operations.
requires a detailed consideration of Google's operations.
[29]
[29]

Google Canada is a wholly owned subsidiary of Google. It is chiefly
Canada is a wholly owned subsidiary of Google. It is chiefly

responsible for marketing Google's services, including its search advertising,
marketing Google’s services, including its search advertising,

engineering efforts
engineering efforts on products other than Google search, and other forms of
products other than Google
interaction with the Canadian public such as policy outreach. Google Canada
interaction with the Canadian public such as policy outreach. Google Canada is
incorporated in Nova
incorporated in Nova Scotia and has offices in Montreal, Toronto, Ottawa, and
and
in Montreal, Toronto, Ottawa,
Google Canada is not extra-provincially registered in British
Waterloo. Google Canada is not extra-provincially registered in British Columbia.
[30]
[30]

Google is a publically traded company incorporated in Delaware, USA. Its
publically traded company incorporated in Delaware, USA. Its

head office is in Mountain View, California and its internet search services are
Mountain
intemet

“operated
facility”. It
"operated out of that facility". It too is not extra-provincially registered in British
not extra-provincially
Google has two wholly owned subsidiaries that are extra-provincially
Columbia. Google has two wholly owned subsidiaries that are extra-provincially
registered in British Columbia, Google Payment Corp. and Google Canada Payment
British Columbia, Google Payment Corp. and Google Canada

have no evidence about the activities of
Corp., but I have no evidence about the activities of those companies.
[31]
[31]

Google operates the Google search engine that makes internet search results
Google search engine that makes internet search results

through
country around the world.
available through dedicated websites for each country around the world. For
Google provides internet
services to users Canada through
example, Google provides internet search services to users in Canada through

2014 BCSC 1063 (CanLII)
(CanLII)

property.
plaintiffs
property. The plaintiffs seek to enjoin Google in order to enforce their proprietary

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“www.google.ca”, to users in the United States through “www.google.com”, and to
"www.google.ca", to users in the United States through "www.google.com", and to
users in France through “www.google.fr”. Despite providing country specific
users in France through "www.google.fr". Despite providing country specific search

website dedicated to their particular country. Thus users in Canada can search
their particular country. Thus users in Canada
through "www.google.fr", and vice versa.
through “www.google.fr”, and vice versa.

[32]
[32]

There are hundreds of millions of active websites over the internet and
are hundreds of millions
active
over the intemet

trillions of webpages. Search engines
internet a viable
effective
trillions of webpages. Search engines make the internet a viable and effective
information
internet cannot be successfully
information and communication resource. The intemet cannot be successfully
communication
without
Google provides. Although
navigated without search services such as those Google provides. Although there
internet
are other intemet search companies, 70-75% of intemet searches worldwide are
70-75% of internet searches worldwide
through
done through Google.
[33]
[33]

Google does not charge for providing internet search services. It earns money
providing internet search services. It

in other ways, primarily by selling advertising space on the webpages that display
primarily
other
selling advertising space on the
results. Google’s advertising success is driven by the very high quality of its
search results. Google's advertising success is driven by the very high quality of its
results.
activities
$50 billion
search results. Its income from these commercial activities is about $50 billion
annually.

[34]
[34]

Google says that the fact that an intemet search is initiated in British
the
that an internet search is initiated in British

to Google carrying on business
Columbia does not equate to Google carrying on business in the province. Google
on the plaintiffs’ reasoning
country
civil
argues that on the plaintiffs' reasoning there is not a country on earth whose civil
courts could not assert jurisdiction over Google in respect
results.
courts could not assert jurisdiction over Google in respect of search results. Rather,
suggests Google, “some form of actual not virtual presence is required”.
suggests Google, "some form of actual not virtual presence is required". Google
heavily
relies heavily on Van Breda in which LeBel J. wrote at para. 87:
which
wrote at para.
[87]
Carrying on business in the jurisdiction may also be considered an
jurisdiction may also
appropriate connecting factor. But considering it to be one may raise more
factor. But considering it to be one may raise
difficult issues. Resolving those issues may require some caution in order to
difficult issues. Resolving those issues
some
avoid creating what would amount to forms of universal jurisdiction in respect
would amount to forms of
jurisdiction in respect
of tort claims arising out of certain categories of business or commercial
tort
arising out of certain categories of business or commercial
activity. Active advertising in the jurisdiction or, for example, the fact that a
activity. Active advertising in
jurisdiction or, for example, the
Web site can be accessed from the jurisdiction would
suffice
Web site can be accessed from the jurisdiction would not suffice to establish
The notion of carrying
that the defendant is carrying on business there. The notion of carrying on
business requires some form of actual, not only virtual, presence in the
virtual,
jurisdiction, such as maintaining an office there or regularly visiting the
jurisdiction, such maintaining
territory
territory of the particular jurisdiction. [Emphasis added.]
jurisdiction. [Emphasis

2014 BCSC 1063 (CanLII)
(CanLII)

that internet users are not restricted to using the
websites, Google acknowledges that intemet users are not restricted to using the

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full.
Google did not quote that paragraph in full. The next line adds what is, in my view,
that

But the Court has not been asked in this appeal to decide whether and, if so,
when e-trade in the jurisdiction would amount to a presence in the
e-trade in the jurisdiction would
to a
jurisdiction.

In contrast to Van Breda, the matter before me involves e-commerce, or at least
involves
matter
providing an “e-service”.
providing an "e-service".
[35]

substantial connection cannot
Van Breda indicates that a real and substantial connection cannot be derived
that

passive website
be accessed in the jurisdiction.
from the mere fact that a passive website can be accessed in the jurisdiction. To
the
similar effect is Thumbnail Creative Group Inc. v. Blu Concept Inc., 2009 BCSC
Blu

1833 [Thumbnail]. In that case the plaintiff claimed the defendant breached copyright
plaintiff
breached copyright
In that
published these
by publishing the plaintiff’s images. The defendant published these images in a book
publishing the plaintiffs images.
in the United States which could be purchased on the internet. Madam Justice
could
the
purchased
the internet. Madam Justice
Dickson said at para 19:

[19]
… use of the Internet in the course of conducting business does not
... use of the Internet in the course of conducting business
mean the business in question is carried on globally for the purposes of a
globally for
mean the business question
of
territorial competence
territorial competence analysis. As counsel for [the defendants] points out, if
this were so the Supreme Court of British Columbia would have jurisdiction in
so
Supreme Court of British Columbia would have jurisdiction
any dispute involving any business that makes long-distance telephone calls
involving any
that
into this province or relies upon the Internet. [The plaintiff] did not provide
[The plaintiff]
this province or relies upon
authority
this far
authority in support of this far reaching proposition, which is, in my view,
unsustainable. [Emphasis added.]

[36]
[36]

It follows form Van Breda and Thumbnailthat the ability of someone in British
Thumbnail that
in British
It follows

created by a person in another country does not
Columbia to open a website created by a person in another country does not of itself
give this Court jurisdiction over the creator of that website. Something more is
jurisdiction over the creator of that website. Something
Van
factors such
required. In Van Breda, the Court considered factors such as whether the
whether
defendants’ representatives regularly travelled to Ontario to further the defendants’
defendants' representatives regularly travelled to Ontario to further the defendants'
promotional
promotional activities for its resorts and whether it distributed promotional materials
its resorts
whether
promotional
in the province. In Thumbnail, Dickson J. considered that the connection between
that
connection

defendants
British Columbia
the defendants and British Columbia appeared to be limited to the sale of one copy
to the
of the defendant’s book.
defendant's

2014 BCSC 1063 (CanLII)
(CanLII)

qualification:
an important qualification:

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[37]
[37]

Page 11

E-commerce has exponentially increased the difficulty of determining whether
E-commerce has exponentially increased the difficulty of determining whether

is carrying
in a particular jurisdiction; it
a company is carrying on business in a particular jurisdiction; it raises the spectre of
the
submits with
Meehan comments in “The Continuing Conundrum
submits with some alarm. Kevin Meehan comments in "The Continuing Conundrum
of International Internet Jurisdiction” (2008) 31 BC Int’l & Comp L Rev 345 at 349:
International Internet Jurisdiction" (2008) 31 BC Int'l & Comp L Rev 345

In the traditional analog world, it is relatively easy for courts to determine the
traditional
is relatively
to
locations of
geographical locations of the persons, objects, and activities relevant to a
activities
particular case. The geography of the digital world of the Internet, however, is
particular case. The geography the
not as easily charted. Content providers may physically reside, conduct their
charted. Content providers may physically
business, and locate their servers in a particular location, yet their content is
locate
in a particular location,
readily accessible from anywhere in the world. Furthermore, attempts to
identify the location of a particular user over the Internet have proven
identify
location of a particular user over
Internet
extremely difficult, and many Internet users compound this problem by
difficult,
users compound
intentionally hiding their location. Traditional principles of international
principles
intentionally
jurisdiction, particularly territoriality, are poorly suited for this sort of
particularly territoriality, are
this
environment of geographic anonymity. Courts have struggled to develop a
geographic anonymity.
to develop
satisfactory solution, yet no progress has been made toward a uniform global
a uniform
solution, yet no progress has been made
standard of Internet jurisdiction.
jurisdiction.

[38]
[38]

In short, courts have traditionally focused on locating the behaviour in issue
short, courts have traditionally focused
locating the behaviour

within a particular state's borders to ensure that "the connection between
within a particular state’s borders to ensure that “the connection between a state and
cannot
weak or hypothetical
to]
a dispute cannot be weak or hypothetical [so as to] cast doubt upon the legitimacy of
the
of
power over the persons affected by the dispute”
the exercise of state power over the persons affected by the dispute" [Van Breda at
32]. Online activities, whether
para. 32]. Online activities, whether commercial or otherwise, are not so easily
otherwise,
pigeonholed.

[39]
[39]

In Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416, 2004 CanLII
(3d) 416, 2004 CanLII

12938 (C.A.) [Barrick Gold], an Ontario company sued a British Columbia resident,
sued a British
resident,
alleging that
company
posting hundreds
alleging that he was defaming the company by posting hundreds of messages on
internet
accusing the
money laundering,
internet websites accusing the company of fraud, tax evasion, money laundering,
30 the Ontario Court of Appeal quoted with approval from
and genocide. At para. 30 the Ontario Court of Appeal quoted with approval from a
High Court of Australia decision that said:
Australia
The Internet is essentially a decentralized, self-maintained
telecommunications network. It is made up of inter-linking small networks
made up of inter-linking small
ubiquitous,
from all parts of the world. It is ubiquitous, borderless, global and ambient in
global
Hence
"cyberspace". This is a word that recognizes
its nature. Hence the term "cyberspace" This is a word that recognizes that
interrelationships
Internet exist outside
the interrelationships created by the Internet exist outside conventional
geographic boundaries and comprise a single interconnected body of data,
comprise
geographic
potentially
Internet
potentially amounting to a single body of knowledge. The Internet is

2014 BCSC 1063 (CanLII)
(CanLII)

being found
just
a company being found to carry on business all over the world, just as Google

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[40]
[40]

The Ontario Court of Appeal went on to note that these characteristics create
went on
that these characteristics

challenge
context and that "Traditional approaches ...
a challenge in the defamation context and that “Traditional approaches … may not
to the realities of the Internet world”:
respond adequately to the realities of the Internet world": Barrick Gold at para. 32.
[41]
[41]

Canadian courts have found some assistance regarding jurisdiction and the
found some assistance regarding jurisdiction
Canadian courts

internet
commentators note,
internet in American cases. As academic commentators note, American
jurisprudence is “an imperfect fit, as the American approach to personal jurisdiction
jurisprudence is "an imperfect fit, as the American approach to personal jurisdiction
has its roots in that country’s constitutional requirement for minimal contact
has its roots in that country's constitutional requirement for minimal contact in order
to establish due process.": Teresa
to establish due process.”: Teresa Scassa & Michael Deturbide, Electronic
Commerce
(Toronto, Ontario: CCH
Commerce and Internet Law in Canada, 2nd ed (Toronto, Ontario: CCH Canadian
Limited, 2012)
Limited, 2012) at 602 [Scassa & Deturbide].
[42]
[42]

Canadian courts have widely considered the United States District Court
widely
United States District
Canadian courts

decision in Zippo Manufacturing v. Zippo Dot Com Inc., 952 F Supp 119 (WD Pa
Manufacturing Zippo Dot Com
Supp 119

1997) [Zippo]: Braintech, Inc. v. Kostiuk, 1999 BCCA 169 [Braintech], Pro-C Ltd. v.
Braintech, Inc.
Computer
Computer City Inc., [2000] O.J. No. 2823 (S.C.J.), Wiebe v. Bouchard et al., 2005
O.J.
BCSC 47.
[43]
[43]

The plaintiff in Zippo is a Pennsylvania corporation that manufactures Zippo
plaintiff
Pennsylvania
that manufactures

lighters. It
corporation that
lighters. It claimed that the defendant, a California corporation that operated an
that the defendant,
internet
under the domain names “ZippoNews.com”,
internet news service and website under the domain names "ZippoNews.com",
“Zippo.com” and “Zippo.net”, infringed its
defendant’s officers,
"Zippo.com" and "Zippo.net", infringed its trademark. The defendant's officers,
internet
located in
it had no offices,
employees, and internet servers were located in California and it had no offices,
Pennsylvania. Pennsylvania
the
employees, or agents in Pennsylvania. Pennsylvania residents accessed the
defendant’s
defendant's website, signed up, and received a news message service. Three
signed up,
received news
thousand
thousand of the defendant's 140,000 subscribers world-wide were Pennsylvania
the defendant’s 140,000 subscribers world-wide were Pennsylvania
residents. Contracts
residents. Contracts between users in Pennsylvania and the defendant were entered
users in Pennsylvania and the defendant
into
into on the website.

2014 BCSC 1063 (CanLII)
(CanLII)

accessible in virtually all places on Earth where access can be obtained
virtually all places on Earth
access can be obtained
either by wire connection or by wireless (including satellite) links. Effectively,
wireless
access to
possession
the only constraint on access to the Internet is possession of the means of
system and possession
securing connection to a telecommunications system and possession of the
basic hardware. [Italics added by the Ontario Court of Appeal.]
[Italics added

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[44]
[44]

Page 13

The issue was whether Pennsylvanian's long-arm statute could "reach" the
was whether Pennsylvanian’s long-arm statute could “reach” the

in
exercise personal jurisdiction
defendant in California and exercise personal jurisdiction over it. As in Van Breda

insufficient basis for the state where the
was an insufficient basis for the state where the website was accessed to assert
jurisdiction.

[45]
[45]

However, the Court found it had jurisdiction because the defendant had
the Court found
jurisdiction because the defendant

subjected itself to Pennsylvania’s jurisdiction by conducting electronic commerce in
Pennsylvania's jurisdiction
conducting electronic

Pennsylvania through
interactive
Pennsylvania through its interactive website.
[46]
[46]

In Scassa & Deturbide at 604, the authors note that in the years since Zippo,
604, the authors note
since

American courts began to feel uncomfortable with the vague “interactivity”
American courts began to feel uncomfortable with the vague "interactivity" concept of
moved towards a test that focussed on “targeting” a jurisdiction,
Zippo and moved towards a test that focussed on "targeting" a jurisdiction, which fit
like
particularly
more easily in areas like defamation where the Zippo test was particularly
inadequate. The concepts of interactivity and targeting are of assistance in
The concepts of interactivity
targeting
carries on business in British
through
assessing whether Google carries on business in British Columbia through its
websites.

[47]
[47]

Google submits that it merely offers a passive website to residents of British
submits
passive
to residents of British

the internet. It argues that its programs automatically
Columbia who wish to search the internet. It argues that its programs automatically
search results without Google being actively involved in
particular
generate search results without Google being actively involved in the particular
Paragraph 23 of Google’s written submissions state:
search. Paragraph 23 of Google's written submissions state:
[23]
… Google's internet search engine allows users to enter key-words
... Google’s internet search engine allows users to enter key-words
and then Google generates a list of results in a specific ranked order.
generates a list of
specific
Google’s search results are computer generated through the use of Google's
Google's search results are computer generated through the use of Google’s
highly confidential and proprietary algorithm and methodology. Google’s web
highly confidential and proprietary algorithm and methodology. Google's web
crawler program (referred to as “Googlebot”) reviews the content that is
crawler program (referred to as "Googlebot") reviews the content that is
available on trillions of webpages or URLs over the internet. Search results
trillions of webpages or URLs over
internet. Search
are generated based on that content [within seconds].
based on that content [within

[48]
[48]

I conclude that Google's internet search websites are not passive information
conclude that Google’s internet search websites are not passive information

letters
word
query,
sites. As a user begins to type a few letters or a word of their query, Google
type
anticipates the
offers
potential
anticipates the request and offers a menu of suggested potential search queries.
offerings
on that particular user’s previous
as the
Those offerings are based on that particular user's previous searches as well as the
keywords
phrases or keywords most commonly queried by all users. As James Grimmelman
commonly queried
all users.

2014 BCSC 1063 (CanLII)
(CanLII)

concluded that
and Thumbnail, the Court concluded that being able to access a passive website

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Page 14

writes in "The Structure of Search Engine Law" (2007-2008) 93 Iowa L Rev 1 at 10writes in “The Structure of Search Engine Law” (2007-2008) 93 Iowa L Rev 1 at 10-

Search engines are also increasingly
Search engines are also increasingly learning from the large volumes of
query data they have accumulated. A user's history of queries can provide
accumulated. A user’s history of queries can provide
useful information about her probable intentions -- for example, whether she
information about her probable intentions -- for example,
search
tends towards navigational or transactional queries. Similarly, search engines
navigational
gain useful feedback into their own successes and failures by seeing which
their
successes and
results users click on or by noticing long strings of searches on related terms,
on or by noticing long strings of searches on related
which may indicate that the user is having trouble finding what she's looking
which may indicate that the user is having trouble finding what she’s looking
for.

[49]
[49]

Google collects a wide range of information as a user searches, including the
collects
of information
a user searches, including

user’s IP address, location, search terms,
whether
user's IP address, location, search terms, and whether the user acts on the search
the
results offered by “clicking through" to the websites
list.
results offered by "clicking through” to the websites on the list.
[50]
[50]

In addition to its search services, Google sells advertising to British Columbia
Google sells advertising to British
In
to its

clients.
entered into an advertising contract with
clients. Indeed, Google entered into an advertising contract with the defendants and
defendants
products
this application.
advertised their products up to the hearing of this application. Google acknowledges
the hearing
filed an affidavit explaining
it should not advertise for the defendants and filed an affidavit explaining its
should not advertise for the defendants
inadvertent failure
account prior
inadvertent failure to suspend the defendants’ Google account prior to the hearing.
suspend the defendants'
[51]
[51]

Although Google's advertising business is marketed in Canada by Google
Although Google’s advertising business is marketed in Canada by Google

Canada, British
residents who wish to advertise on Google's
Canada, British Columbia residents who wish to advertise on Google’s webpages
contract directly with Google
directly Google. Although
contract directly with Google and make payments directly to Google. Although those
contracts stipulate that disputes will be governed
contracts stipulate that disputes will be governed by California law and adjudicated
California law
“choice of laws” provision in those contracts
in California courts, the "choice of laws" provision in those contracts does not alter
Google is carrying on a business in this province through advertising
the fact that Google is carrying on a business in this province through advertising
contracts
contracts with British Columbia residents.
[52]
[52]

The Supreme Court of Canada noted that advertising in a jurisdiction is not by
Supreme Court of Canada noted that advertising in a jurisdiction not

sufficient connection
territorial
itself a sufficient connection to establish territorial competence: Van Breda at
87, 114. But there is a difference between a company advertising its
paras. 87, 114. But there is a difference between a company advertising its own
through
media available to British
residents,
services through a website or other media available to British Columbia residents,
business of selling advertising
internet
and engaging in the business of selling advertising space on the internet to other

2014 BCSC 1063 (CanLII)
(CanLII)

11:
11.

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British Columbia. There uncontradicted evidence
companies in British Columbia. There is uncontradicted evidence before me that
sells advertising
including
Google sells advertising to British Columbia residents, including the defendants.
Google submits that its advertising services are completely separate from its
submits
from
advertising services are completely

and cannot justify
Court
jurisdiction over Google's
search services, and cannot justify the Court assuming jurisdiction over Google’s
With respect, do not agree with that proposition for
search services. With respect, II do not agree with that proposition for two reasons.
[54]
[54]

First, Google's business model is contextual advertising; the "context" is the
First, Google’s business model is contextual advertising; the “context”

search done using Google's search services. Ads are linked to either the subject
search done using Google’s search services. Ads are linked to either the subject
history the
not
matter of the search, or the history of the person searching. Google does not charge
it
space on its websites to
users of its search services. Rather, it sells space on its websites to advertisers
its
whose ads are displayed alongside the search results generated by a user’s query.
whose ads are displayed alongside the search results generated by a user's query.
[55]
[55]

These ads can relate to the topics searched. For example, if "Vancouver
ads can relate to the topics searched. For example, if “Vancouver

lawyers” is searched, a page showing a list of Vancouver lawyers will be generated.
lawyers" is searched, a page showing a list of Vancouver lawyers will be generated.
At the top of the list a number of ads show up for law firms that have paid Google in
list a number
firms that have
ads look
results but
order to advertise there. Those ads look like the other search results but are marked
by Ad.
.

[56]
[56]

These ads can also be unrelated to the content of the search, but geared to a
ads can
be unrelated to the content
the

particular searcher.
particular searcher. For example, if the user has in the past searched a retail
the
outlet
appear
the page showing the search results
website, ads for that retail outlet may appear on the page showing the search results
for the query “Vancouver lawyers”. Google can individually tailor
advertising
for the query "Vancouver lawyers". Google can individually tailor the advertising
a user each time they search using the information the
seen by a user each time they search using the information in the search query and
that user’s own search history.
that user's own search history.
[57]
[57]

Google made the same argument that its ad and search services are
the
argument
services

unrelated
submissions to the
Spain
unrelated in submissions to the European Court of Justice in Google Spain SL and
Justice
Agencia Española de Protección
Google Inc. v. Agencia Espanola de ProtecciOn de Datos (AEPD) and Mario Costeja
Gonzalez, C-131/12 [González]. The European Court of Justice delivered judgment
González,
European Court of Justice delivered judgment
[Gonzalez].

May 2014. Its reasons are available online but are not yet published. that
on 13 May 2014. Its reasons are available online but are not yet published. In that
dispute,
González lodged a complaint
Data Protection
dispute, Mr. Gonzalez lodged a complaint with the Spanish Data Protection Agency
the
González’s name in the
based on the fact that when an internet user entered Mr. Gonzalez's name in the
the
that when
intemet user entered

2014 BCSC 1063 (CanLII)
(CanLII)

[53]
[53]

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the user would
links
Google search engine, the user would obtain links to two pages of a newspaper
two
published in January and March 1998 relating
attachment proceedings
published in January and March of 1998 relating to attachment proceedings against

[58]
[58]

Mr. Gonzalez applied to order the newspaper to remove or alter its webpages
González applied to order
to

so that his personal data no longer appeared. He also requested that Google Spain
that his personal data no longer appeared.
requested that Google

be required
or
his
that it
or Google be required to remove or conceal his personal data so that it was not
included
concerning
included in search results given that the attachment proceedings concerning him
results
been fully resolved for number
“reference to them was now
had been fully resolved for a number of years and any "reference to them was now
years
entirely irrelevant" (para.
entirely irrelevant” (para. 15).
[59]
[59]

The Spanish Data Protection Agency upheld Mr. Gonzalez's complaint
Data Protection
upheld
González’s complaint

Google on
basis
operators
against Google Spain and Google on the basis that search engine operators were
subject to
subject to data protection legislation. Google appealed that decision to the National
legislation. Google
High Court which in turn referred the matter to the European Court of Justice for
which turn referred the matter the
Court of Justice
preliminary rulings. The
Court of Justice
preliminary rulings. The European Court of Justice confirmed that the promotion and
advertising
in
sale of advertising space in relation to Spain constituted the bulk of Google’s
Spain constituted the bulk of Google's
activity
“regarded as closely linked to Google Search”
commercial activity and was "regarded as closely linked to Google Search"
(para. 46). The European Court of Justice concluded at para. 56:
46). The European Court of Justice concluded at
[56]
… the activities of the operator of the search engine [Google] and
[Google]
... the activities
those of its establishment situated in the Member State [Google Spain]
its establishment situated in the Member State [Google
are inextricably
since
activities
concerned are inextricably linked since the activities relating to the
advertising space constitute the means of rendering the search engine at
advertising
constitute the means rendering the
issue economically profitable and that engine is, at the same time, the means
economically profitable and that engine is, at the same time, the
enabling those activities to be performed.
activities to be
enabling

[60]
[60]

González
information
While Gonzalez concerned the protection of personal information and

particular statutory provisions, the analysis relating to the connection
particular statutory provisions, the analysis relating to the connection between
Google’s advertising and search functions is of assistance. too conclude
Google's advertising and search functions is of assistance. II too conclude that the
two parts of Google’s business are inextricably linked; neither service can stand
parts of Google's business are inextricably
neither
alone.

[61]
[61]

Second, whether the advertising activity conducted in British Columbia is the
the advertising activity conducted in British
is

as the activity
plaintiff
same as the activity which the plaintiff seeks to enjoin is not germane to the
enjoin is not germane
territorial competence analysis.
the advertising
territorial competence analysis. The difference between the advertising business and

2014 BCSC 1063 (CanLII)
(CanLII)

González for the recovery of social
Mr. Gonzalez for the recovery of social service debts.

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goes to the strength
connection
the search business to be enjoined goes to the strength of the connection between
and British
could thus
assessing whether
the matter and British Columbia. It could thus be a factor when assessing whether
the Court
jurisdiction,
competence. Once the Court has in personam jurisdiction, it has it for all purposes.
[62]
[62]

Further, at the territorial competence stage of the analysis, the Court is not
territorial
Court
Further,

looking for the strongest
connection
looking for the strongest possible connection to this forum, but for a connection
connection this
sufficient to meet the requirements
sufficient to meet the requirements of the CJPTA. In Purple Echo the plaintiff
damages for
of a co-production
with
claimed damages for alleged breaches of a co-production agreement with
licenced to
only the
broadcaster KCTS which was licenced to broadcast only in the United States,
KCTS which
although broadcasts were available to viewers in Canada. KCTS was found to
although broadcasts were available to viewers in Canada. KCTS was found to have
of
a place of business in British Columbia because PCPTA, a federally incorporated
British Columbia because PCPTA, a federally incorporated
Canadian corporation
Canadian corporation with an office in Vancouver, solicited Canadian donations for
Vancouver,
Canadian donations
KCTS under contract
KCTS under contract and paid the money to KCTS: Purple Echo at paras. 44-46.
the money to
The Court of Appeal’s finding that British Columbia had territorial competence turned
The Court of Appeal's finding that British Columbia had territorial competence turned
number of
as well,
Court nonetheless included
link
on a number of other factors as well, but the Court nonetheless included the link
the “parent” and
as a factor supporting the connection
between the "parent" and its agent company as a factor supporting the connection
that
company and British
between that parent company and British Columbia.
[63]
[63]

In any event, II find that Google's search and advertising services are
find
Google’s
and advertising
In

inextricably
inextricably linked.
[64]
[64]

I will address here Google's submission that this analysis would give every
I will address here Google’s submission that this analysis would

state in the world jurisdiction over Google's search services. That may
state in the world jurisdiction over Google’s search services. That may be so. But if
But
natural consequence
so, it flows as a natural consequence of Google doing business on a global scale,
flows
business
not from a flaw in the territorial competence analysis. As Janet Walker writes in
from
the territorial competence analysis.

Canadian Conflict of Laws,
Ontario:
Castel & Walker: Canadian Conflict of Laws, loose-leaf, 6 ed (Markham, Ontario:
LexisNexis, 2005), ch 11 at 27, legal person such as a corporation can be subject
LexisNexis, 2005), ch 11 at 27, aalegal person such as a corporation can be subject
multiple jurisdictions whether because
through registration,
to multiple jurisdictions whether because it is resident there through registration, or
resident
because it is
on business in that jurisdiction.
the territorial
because it is carrying on business in that jurisdiction. Further, the territorial
analysis would not give every state unlimited jurisdiction
competence analysis would not give every state unlimited jurisdiction over Google;

2014 BCSC 1063 (CanLII)
(CanLII)

but it does not affect this court’s territorial
British Columbia is the appropriate forum, but it does not affect this court's territorial

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Page 18

jurisdiction will be confined to issues closely associated with the forum in
the forum
accordance with private international law.
In summary on this issue, I conclude that the Court has territorial competence

over Google on this application.
2.
2.

[66]
[66]

Is British Columbia the appropriate forum?
Is British Columbia the appropriate forum?

Should the
Should the Court decline to exercise its jurisdiction on the basis that there is
the
that there

another,
convenient
As
another, more convenient forum in which to adjudicate this application? As the
Supreme Court of Canada observed in Van Breda at para. 101, a clear distinction
observed
must be drawn between the existence and the exercise of jurisdiction. The former is
the existence and the exercise jurisdiction. The former
concerned generally with preventing jurisdictional overreach and respecting the
authority
authority of foreign courts, the latter is concerned with fairness to the parties and
Although
efficient resolution of the dispute: Van Breda at paras. 22, 104-105. Although
Google did not frame its argument expressly in terms of forum non conveniens, it
argument expressly terms
Therefore,
asserted that California is a better forum to hear this application. Therefore, the
issue must be addressed.
[67]
[67]

Once jurisdiction is established, the burden falls on Google to show why the
on
show why

Court should decline to exercise its jurisdiction and displace the forum chosen by the
plaintiffs: Van Breda at para. 103. Google must show that the alternative forum is
alternative forum
clearly more appropriate and that, in light of the characteristics of the alternative
in
of
of the alternative
efficiently
forum, the matter can be adjudicated more fairly and efficiently there.
[68]
[68]

In British Columbia the Court's discretion to stay the proceeding in favour of
In British Columbia the Court’s discretion to stay the proceeding in favour of

another state’s jurisdiction grounded ins. 11(1) of
CJPTA:
another state's jurisdiction is grounded in s. 11(1) of the CJPTA:
11 (1) After considering the interests of the parties to a proceeding and the
(1) After considering the interests of
ends of justice, a court may decline to exercise its territorial competence in
may
exercise its territorial competence
the proceeding on the ground that a court of another state is a more
ground that
of another state is a
appropriate forum in which to hear the proceeding.

[69]
[69]

Google’s submissions in support of a stay can be grouped into three main
Google's submissions in support of a stay can be grouped into three main

arguments:

2014 BCSC 1063 (CanLII)
(CanLII)

[65]
[65]

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(i)
(i)

Page 19

The Court should decline jurisdiction because Google has agreed to
should
jurisdiction because Google
block specific websites from its search results and the plaintiffs have
results
the plaintiffs

(ii)
(ii)

Google has a stronger connection to California; and
a stronger connection

(iii)
(iii)

a California court
enforced.
An order made by a California court can be enforced.

I will deal with each submission in turn.
deal
each submission in turn.
(i)
[70]
[70]

Is an out-of-court remedy available to the plaintiffs?
to the plaintiffs?

Google submits that the plaintiffs have a remedy available to them without a
submits that the plaintiffs have a
without

court
failed to avail themselves of it. Although this is not strictly
court order but have failed to avail themselves of it. Although this is not strictly
forum,
speaking another forum, it is convenient to address the question here. After Google
convenient to address the question here.
of this Court’s
2012 and the plaintiffs filed this
received notice of this Court's orders in the fall of 2012 and the plaintiffs filed this
application,
to take down the defendants’ websites that the plaintiffs
application, Google agreed to take down the defendants' websites that the plaintiffs
identified
identified by way of a specific URL.
[71]
[71]

The plaintiffs initially agreed to try that route and adjourned the application
plaintiffs initially agreed to try that route and adjourned the

generally
provided Google with specific URLs from which the
generally to do so. They provided Google with specific URLs from which the
defendants
selling
Court’s
defendants were selling the GW1000 in violation of the Court's orders. Google
GW1000 in violation of
voluntarily blocked 345
This is referred to as “taking
voluntarily blocked 345 websites from its search results. This is referred to as "taking
down” websites.
down" websites.
[72]
[72]

However, the process was wholly unsatisfactory from the plaintiffs'
the process was wholly unsatisfactory from the plaintiffs’

a whole
perspective. In place of the de-indexed websites, a whole host of new websites
the
rankings to
Websites can be generated automatically,
moved up the rankings to take their place. Websites can be generated automatically,
resulting
game of “whac-a-mole” with the plaintiffs identifying
resulting in an endless game of "whac-a-mole" with the plaintiffs identifying new
Google deleting
The plaintiffs
that
URLs and Google deleting them. The plaintiffs argue that any scheme that depends
is ineffective.
on the deletion of individual URLs is ineffective.
[73]
[73]

The insufficiency of the voluntary take-down of specific websites was
insufficiency
the voluntary

Regional Court of Paris in the unreported decision
recognized by the Regional Court of Paris in the unreported decision Trib gr inst
Paris, November
SARL
Pads, 6 November 2013, Max Mosely v. Google France SARL and Google Inc.[Max

2014 BCSC 1063 (CanLII)
(CanLII)

of that out-of-court
failed to avail themselves of that out-of-court remedy;

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Mosely]. Mosely had been surreptitiously videotaped by the News of the World while
been surreptitiously
of the
while

published
engaging in sexual activity with several partners. The newspaper published the
sexual activity with several partners.
found guilty
publishing the
the newspaper was found guilty and ordered to cease publishing the images.
However, the images remained widely available by searching through Google
images remained widely available by searching through
Images.
[74]
[74]

Mosely asked Google to stop indexing the pictures with reference to specific
to stop indexing
pictures

He made many such requests and Google honoured all of the requests
URLs. He made many such requests and Google honoured all of the requests but
images continued
through
After two
of this
the images continued to be indexed through new URLs. After two years of this
prevent
images from
process, Mosely asked Google to prevent the images from being indexed at all.
refused
for
injunction and damages.
Google refused and Mosely applied for an injunction and damages. The Court
it was impossible for the plaintiff
his right
by using
observed that it was impossible for the plaintiff to have his right enforced by using
only the procedures
(English translation
Mosely at
only the procedures made available by Google (English translation of Max Moselyat
10).
[75]
[75]

The inadequacy of this approach in the present matter is heightened by
this
present matter heightened

Google’s removal of specific URLs from only those searches initiated through
Google's removal of specific URLs from only those searches initiated through
– a fact that came to the plaintiffs’ attention only after cross-examining
Google.ca — a fact that came to the plaintiffs' attention only after cross-examining
Smith
his affidavit on May
Mr. Smith on his affidavit on May 21, 2013. As a result, the defendants' blocked
2013. As a result, the defendants’ blocked
searches are conducted
country other than Canada,
websites appear when searches are conducted from any country other than Canada,
search is conducted within
using Google website other than
or when a search is conducted within Canada using a Google website other than
www.google.ca.

[76]
[76]

The majority of GW1000 sales occur outside Canada. Thus, quite apart from
majority
GW1000 sales occur outside Canada. Thus, quite apart from

iterations, the
the practical problem of endless website iterations, the option Google proposes is
equivalent
sought which would
not equivalent to the order now sought which would compel Google to remove the
defendants’ websites from all search results generated
defendants' websites from all search results generated by any of Google’s websites
of Google's
worldwide.
conclude
plaintiffs do not have
court
worldwide. I therefore conclude that the plaintiffs do not have an out of court remedy
to
available to them.

2014 BCSC 1063 (CanLII)
(CanLII)

made others available on its
In a French criminal proceeding,
images and made others available on its website. In a French criminal proceeding,

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(ii)
Does Google have a stronger connection to California?
(ii) Does Google have a stronger connection to California?
Google a a Delaware company that registered and has its head office
[77] Google is is Delaware company that isis registeredand has its head office in

of a person within a state is a strong connecting factor justifying
residence of a person within a state is a strong connecting factor justifying the
assumption
assumption of jurisdiction over that person. Residence for a legal person such as a
jurisdiction over that person. Residence for a legal
such as
corporation established under
of
corporation is established under s. 7 of the CJPTA only if:
(a) the corporation has or is required by law to have a registered office
the
registered
by
in British Columbia,
(b) pursuant to law, it
(i) has registered an address in British Columbia at which
address in
(i)
process may be served generally, or
(ii) has nominated an agent in British Columbia upon whom
in
(ii)
process may be served generally,
served generally,
(c) it has a place of business in British Columbia, or
place of business
Columbia,
(d) its central management is exercised in British Columbia.
management is exercised in British

None these subsections apply to Google in British Columbia, but all pertain
[78] None of of these subsections apply to Google in BritishColumbia, but all pertain
in California. Google’s internet search services are said to “operate out of” its head
California. Google's intemet search services are said to "operate out of its

office.
I accept that Google has a strong presence in and connection to California.
[79] I accept that Google has a strong presence in and connection to California.
But the question is "which forum is more appropriate?” not “where does Google
the question is “which forum is more appropriate?" not "where does

reside?” As the Supreme Court of Canada observed
reside?" As the Supreme Court of Canada observed in Van Breda at para. 109, the
109, the
should
because it finds
Court should not exercise its discretion in favour of a stay solely because it finds that
favour
forums
comparable forums exist in other states:
[109] ...… is is not matter ofof flippinga a coin. A courthearing an application
It It not a a matter flipping coin. A court hearing an application
must
for a stay of proceedings must find that a forum exists that is in a better
position to dispose fairly and efficiently of the litigation. But the court must be
position
fairly
efficiently of
litigation. But the
mindful that jurisdiction may sometimes be established on a rather low
mindful that jurisdiction may sometimes
conflicts
threshold under the conflicts rules. Forum non conveniens may play an
important role in identifying a forum that is clearly more appropriate for
identifying a
that is clearly
disposing of the litigation and thus ensuring fairness to the parties and a more
disposing of the litigation and thus ensuring fairness to the parties and a
efficient process for resolving their dispute.
process

2014 BCSC 1063 (CanLII)
(CanLII)

California. The CJPTA, like the common law it codified, recognizes that the ordinary
it
ordinary

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Page 22

[80] The factors
[80] The factors I must consider in deciding whether California is the more
whether
appropriate forum in which to hear this application include those set out in s. 11(2) of
forum
this
include those
out

11 (2) A court, in deciding the question of whether it or a court outside British
question whether it a court
Columbia is the more appropriate forum in which to hear a proceeding, must
to hear a
consider the circumstances relevant to the proceeding, including
circumstances relevant
proceeding, including
(a) the comparative convenience and expense for the parties to the
parties
proceeding and for their witnesses, in litigating in the court or in any
witnesses, in litigating
alternative
alternative forum,
(b) the law to be applied to issues in the proceeding,
to
(c) the desirability of avoiding multiplicity of legal proceedings,
desirability
multiplicity of legal
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient working of the Canadian legal system as a
efficient working of the Canadian legal system as
whole.

[81] I will address
factors in turn.
[81] I will address each of these factors in turn.
(a)
(a)

Comparative convenience and expense
Comparative convenience and expense

This factor of limited significance since “the proceeding” in this case is
[82] This factor isis of limitedsignificance since "the proceeding" in this case is a
injunction.
single application for an interim injunction. Google has already incurred the expense
of argument and appearance here. I consider it nonetheless because it could still be
nonetheless
could
a factor with respect to enforcement if I grant the order sought.
enforcement
This factor encompasses the Court’s concern for protecting the respondent
[83] This factor encompasses the Court's concern for protecting the respondent
from unfairly inconvenient litigation. Google is a highly sophisticated entity with
unfairly inconvenient
annual revenues
Because
annual revenues of $50 billion and 54,000 employees worldwide. Because of the
nature
emergent nature of its business, Google often finds itself at the cutting edge of legal
finds
the cutting
issues in many different fields of law all over the world, including in the areas of
different
over the world, including the
result
defamation, copyright, privacy and competition law. As a result Google has an incopyright,
house legal department of 700 people, including dedicated product counsel, national
and regional counsel, and litigation counsel.

2014 BCSC 1063 (CanLII)
(CanLII)

CJPTA:
the CJPTA:

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[84]

Page 23

In contrast, the primary corporate plaintiff is a small British Columbia
contrast,
plaintiff
small British

which is incurring significant financial losses due to the defendants’
company which is incurring significant financial losses due to the defendants'

(b)
(b)

The law to be applied to issues in the proceeding
The law to be applied to issues in the proceeding

This a a neutral factor; either forum local law would apply. Google
[85] This is is neutral factor; inin either forumlocal law would apply. Google
that theft of intellectual
rights would
acknowledges that theft of intellectual property rights would be actionable in
me of the applicable law in California
California, but I have no evidence before me of the applicable law in California
governing
granting
injunctions
governing the granting of injunctions against non-parties.
(c)
(c)

The desirability of avoiding multiplicity of proceedings
The desirability of avoiding multiplicity of proceedings

The plaintiffs’ application for an interim injunction against Google is founded
[86] The plaintiffs' application for an interim injunction against Google is founded
on the plaintiffs’ actions against the defendants
the Court’s inherent jurisdiction
on the plaintiffs' actions against the defendants and the Court's inherent jurisdiction
to issue orders to protect the integrity of its own process, as recognized in s. 39(1) of
to protect the integrity of its own process, as recognized in s. 39(1)

and Equity
R.S.B.C. 1996, c. 253. The plaintiffs seek the injunction
the Law and Equity Act, R.S.B.C. 1996, c. 253. The plaintiffs seek the injunction to
prevent the defendants from continued and flagrant breaches of this Court’s orders
prevent the defendants from continued and flagrant breaches of this Court's orders
in the underlying action.
underlying
Setting aside for the moment the question of whether this application could
[87] Setting aside for the moment the question of whether this application could be
made in California without the underlying action to support
would
a minimum
made in California without the underlying action to support it, it would at a minimum
plaintiffs to commence
require the plaintiffs to commence a second proceeding in California. This factor
favours
therefore favours British Columbia.
(d)
(d)

The desirability of avoiding conflicting decisions in
The desirability of avoiding conflicting decisions in
different courts.
different courts.

This factor of little assistance on this application as there is a single issue,
[88] This factor is is of little assistance on thisapplication as there is a single issue,
whether
injunction should
is unlikely
whether the injunction should be granted, which is unlikely to be considered in both
courts.

(e)
(e)

Fair and efficient working of the Canadian legal system
Fair and efficient working of the Canadian legal system

This factor of little assistance on the application before
[89] This factor isis of littleassistance on the application before me.

2014 BCSC 1063 (CanLII)
(CanLII)

conduct.
this factor favours British Columbia
conduct. I find this factor favours British Columbia as the more appropriate forum.
the

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Equustek Solutions Inc. v. Jack
(f)
(f)

[90]
[90]

Page 24

The enforcement of an eventual judgment
The enforcement of an eventual judgment

This is the main ground upon which Google asserts that California is the more
ground
This
which

outside of British Columbia?

[91]
[91]

Google raises a good point. Traditionally, courts have not granted injunctive
raises a good point. Traditionally, courts have not granted injunctive

who reside outside the jurisdiction.
relief against defendants who reside outside the jurisdiction. In Barrick Gold at
74, the Ontario Court of Appeal explained this general rule by quoting from
para. 74, the Ontario Court of Appeal explained this general rule by quoting from
Sharpe’s text
Specific Performance:
Robert J. Sharpe's text Injunctions and Specific Performance:
Claims for injunctions against foreign parties present jurisdictional constraints
which are not encountered in the case of claims for money judgments. In the
In
case of a money claim, the courts need not limit assumed jurisdiction to
assumed
cases where enforceability is ensured. Equity, however, acts in personam
enforceability
and the effectiveness of an equitable decree depends upon the control which
equitable
depends upon
may be exercised over the person of the defendant. If the defendant is
physically present, it will be possible to require him or her to do, or permit,
acts outside the jurisdiction. The courts have, however, conscientiously
which
avoided making orders which cannot be enforced. The result is that the
courts are reluctant to grant injunctions against parties not within the
jurisdiction and the practical import of rules permitting service ex juris in
permitting
respect of injunction claims is necessarily limited. Rules of court are typically
limited to cases where it is sought to restrain the defendant from doing
anything within the jurisdiction. As a practical matter the defendant "who is
doing anything within the jurisdiction" will usually be physically present within
jurisdiction"
original;
the jurisdiction to allow ordinary service. [Italics in original; underlining
added.]
[92]

On this basis the Court of Appeal in United Services Funds (Trustees of) v.

Richardson
1988 CanLII
Richardson Greenshields of Canada Ltd. (1988), 23 B.C.L.R. (2d) 1, 1988 CanLII
2960 (C.A.) held that court should not grant an order compelling an out-of-country
2960 (C.A.) held that aacourt should not grant an order compelling an out-of-country
individual to
for
individual to attend for examination for discovery.
[93]
[93]

However, there are exceptions to the general rule. For example, in Barrick
exceptions
However,
the general rule.

granted a permanent injunction
a British
Gold the Ontario Court of Appeal granted a permanent injunction against a British
Columbia resident in a defamation proceeding.
[94]
[94]

An injunction is an equitable remedy and is enforced through the courts’
An injunction is an equitable remedy and is enforced through the courts'

contempt
that power is exercised through fines and imprisonment.
contempt power. Generally, that power is exercised through fines and imprisonment.

2014 BCSC 1063 (CanLII)

appropriate forum. How, Google asks, can this Court force Google to take steps
forum.
force
to

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Page 25

penalties are more easily invoked when a person resides within the court’s
These penalties are more easily invoked when a person resides within the court's
jurisdiction so that either the
jurisdiction so that either the person or his assets can be "seized".
or his assets can be “seized”.
not
only
to the
But these are not the only remedies available to the Court. In Bea v. The
these

Owners,
2014 BCSC 826, Grauer J. cites with approval the
Ovviers, Strata Plan LMS2138, 2014 BCSC 826, Grauer J. cites with approval the
following words of the Chief Justice of the Supreme Court Newfoundland
following words of the Chief Justice of the Supreme Court of Newfoundland and
Labrador:

The law of contempt is found in the development of the common law. That
found the development
law is always evolving. The state of its development is not frozen at any
evolving.
particular date in judicial history. So also, with respect to the types of penalty
judicial history. So
particular
which a court may employ to vindicate its contempt power. Differing penalties
may
to
may be creatively employed, either singly or in combination, in new situations
be creatively employed, either singly or in combination, new situations
exercise
to achieve the purposes behind the exercise of the contempt power.

[96]
[96]

For example, this court may dismiss or refuse to hear proceedings brought by
this
proceedings brought
refuse

violating
a party who is violating a court order: Breberin v. Santos, 2013 BCCA 385 at
Schmidt v. Wood,
para. 14; Schmidtv. Wood, 2012 ABCA 235 at para. 5.
[97]
[97]

barring
contempt
While barring a person in contempt from making use of the Court's process
the Court’s process

be a smaller stick than imprisonment,
of enforcement
may be a smaller stick than imprisonment, it is nonetheless a means of enforcement
nonetheless
particularly
non-resident corporation
of some significance. That is particularly so when a non-resident corporation carries
on business in British Columbia and may be sued or wish to sue in these courts.
business British Columbia and
courts.
Although Google’s contracts with advertisers in British Columbia are
Although Google's contracts with advertisers in British Columbia are by the choice of
the
provisions to be determined California, other
laws provisions to be determined in California, other causes of action in defamation
tort could well
or tort could well arise in British Columbia (see for example Trkulja v. Google (No 5),
British Columbia (see
VSC 533, an Australian defamation case which raised issues of whether
[2012] VSC 533, an Australian defamation case which raised issues of whether
“publishes” the
Google "publishes" the material displayed on its search engines).
(iii)
An order made in California can be enforced
(ii:) An order made in California can be enforced
[98]
[98]

Google argues that the plaintiffs should apply in California because a
the plaintiffs should apply in California because

California court order can be enforced against Google in that state.
California court order can be enforced against Google in that state. I accept that a
that
British
California court order is easier to enforce in California than a British Columbia court
court
related to the assertion that California therefore better forum
order. However, related to the assertion that California is therefore a better forum is

2014 BCSC 1063 (CanLII)
(CanLII)

[95]
[95]

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would
the interlocutory
the question of whether a California court could or would order the interlocutory relief
whether a California court could
plaintiffs.
sought by the plaintiffs.
Google asserts that the plaintiffs can make this application in California.
plaintiffs
make this application

However, Google bears the burden of proof at this stage of the analysis and has
Google bears the burden of proof
analysis
provided no support for that proposition. Indeed, neither party alluded to or
support for that proposition. Indeed, neither
alluded

Although
go no further
attempted to prove California law. Although I need go no further given where the
burden of proof lies, Canadian jurisprudence offers insight into the complexity of this
Canadian jurisprudence offers insight into the complexity of this
question.

[100]
plaintiffs
originating
[100] Assuming the plaintiffs could file an originating application in California, they
would
asking for a standalone interim injunction with no underlying substantive
would be asking for a standalone interim injunction with no underlying substantive
followed the
relief sought in California. The Supreme Court of Canada has followed the approach
sought in California. The Supreme Court of
by
UK House of Lords and determined that an interlocutory injunction
taken by the UK House of Lords and determined that an interlocutory injunction can
be issued in such circumstances, but only if two conditions are satisfied:
only
conditions
Employees Canadian Pacific
Brotherhood of Maintenance of Way Employees Canadian Pacific System
Canadian Pacific
S.C.R. 495. First, the issuing court
Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495. First, the issuing court
jurisdiction
second, the substantive underlying dispute
must have jurisdiction simpliciter, and second, the substantive underlying dispute
must
cause of action recognized by the issuing
noted, have nothing
must be a cause of action recognized by the issuing court. As II noted, II have nothing
to
whether
courts have
before me to say whether California courts have adopted the same approach.
[101] Furthermore, Google’s assertion that the order sought in this court could not
[101] Furthermore, Google's assertion that the order sought in this court could not
in
ignores the potential for
plaintiffs
a British
be enforced in California ignores the potential for the plaintiffs to sue on a British
court
is a distinct
applying
Columbia court order in California. That is a distinct legal step from applying for a
standalone
appropriate
standalone order in California, which Google contends is the appropriate procedure.
[102]
submits that the plaintiffs cannot enforce a British Columbia injunction
[102] Google submits that the plaintiffs cannot enforce a British Columbia injunction
Technologies Corp.
in California. Google relies on Ingenium Technologies Corp. v. McGraw-Hill
2005 BCSC 465 at para. 28, in which Pitfield J., on a without notice
Companies, 2005 BCSC 465 at para. 28, in which Pitfield J., on a without notice
“[a]n injunction is not
judgment
application stated that "[a]n injunction is not a form of judgment or order on which
[the plaintiff] could realistically sue for recognition and enforcement
[the plaintiff] could realistically sue for recognition and enforcement on a timely
basis, if it would be able to sue on such judgment at all". conclude from
basis, if it would be able to sue on such judgment at all”. I conclude from a review of

2014 BCSC 1063 (CanLII)
(CanLII)

[99]
[99]

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Page 27

case law that there are situations which
the case law that there are situations in which a party can sue for enforcement of a
enforcement
law is evolving in
direction.
foreign interlocutory order. Certainly, the common law is evolving in that direction.
interlocutory order. Certainly,

(3d) 500, 269 D.L.R. (4th) 679 (C.A.). The
Insurance Co. Ltd. (Re) (2006), 80 O.R. (3d) 500, 269 D.L.R. (4th) 679 (C.A.). The
addressed the trend towards enforcing
British Columbia Court of Appeal addressed the trend towards enforcing foreign nonColumbia Court
judgments
Minera Aquiline
IMA Exploration
monetary judgments in Minera Aquiline Argentina SA v. IMA Exploration Inc., 2007
BCCA 319 at para. 92:
[92]
… academic opinion is consistent with the general trend of private
trend of
... academic opinion is consistent
international law. The Supreme Court of Canada has recognized that the law
international law. The
of Canada
has evolved to allow courts to deal with disputes arising in an increasingly
allow
deal with disputes
interdependent global economy. In its recent jurisprudence, the Supreme
interdependent global
its
jurisprudence, the Supreme
Court has reasoned that, in the proper case, the limits of the courts'
Court has reasoned that, in the proper case, the limits of the courts’
jurisdiction should be expanded,
jurisdiction should be expanded, not narrowed. In Pro Swing Inc. (at
paras. 78-79), McLachlin C.J.C. (in dissent, but not on this issue) referred to
78-79), McLachlin C.J.C. (in dissent, but not on this issue)
Morguard Investments Ltd. v. De Savoye, [1990] 3 S.C.R. 1077 at 1098, Hunt
Ltd. v. De
T&N plc,
v. T&N plc, [1993] 4 S.C.R. 289 at 321-322, and Beals v. Saldanha, [2003] 3
S.C.R.416 at para. 27, for the rationale for extending the limits of the court's
S.C.R. 416 at para. 27, for the rationale for extending the limits of the court’s
jurisdiction to enforce foreign non-monetary judgments. She commented
jurisdiction to enforce foreign non-monetary judgments. She commented that
exclude the courts from
comity, order and fairness do not exclude the courts from enforcing foreign
non-monetary judgments, and in the context of modern private international
in the context modern private international
law, may require it. The majority of the Court in Pro Swing Inc. concluded that
may
The majority
was not the right case to extend the jurisdiction, but all of the justices agreed
case to
the jurisdiction,
that the “time is ripe to review the traditional common law rule" (para.
that the "time is ripe to review the traditional common law rule” (para. 15) in
light of changing global commercial
light of changing global commercial realities.

that Google objects to British Columbia retaining jurisdiction
[104] Finally, I note that Google objects to British Columbia retaining jurisdiction
Finally,
the order sought would
Google to take steps in relation to
because the order sought would require Google to take steps in relation to its
That objection is not resolved by “going to California”.
websites worldwide. That objection is not resolved by "going to California". If the
involves worldwide relief, a
order involves worldwide relief, a California court will be no more appropriate a
court will be no
forum than British Columbia to make such an
forum than British Columbia to make such an order. Even if the order can be
construed
narrowly
the
construed more narrowly as requiring Google to take steps at the site where the
requiring Google to
computers controlling the search programs are located,
computers controlling the search programs are located, Google has not established
those computers
only
that those computers are located in California, or that they can only be
that they
reprogrammed there.

[105] As the Court of Appeal observed in Olney v. Rainville, 2009 BCCA 380 at
27, “What is essential is that the taking of jurisdiction
consistent
para. 27, "What is essential is that the taking of jurisdiction be consistent with order

2014 BCSC 1063 (CanLII)
(CanLII)

Court of Appeal enforced a foreign interlocutory
[103] The Ontario Court of Appeal enforced a foreign interlocutory order in Cavell

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Page 28

and fairness.” conclude
this issue that
and fairness." I conclude on this issue that Google has not established that
forum than British
for adjudicati ng
California is a more appropriate forum than British Columbia for adjudicating the

3.
3.

Should the order sought be granted?
Should the order sought be granted?

[106] Having
that
Court has jurisdiction
[106] Having determined that the Court has jurisdiction over Google and that
Google has not established that California is a more appropriate forum, we come to
that California
forum,
the heart of the matter: Should the injunction be granted?
the matter: Should the injunction be granted?

[107]
[107] Google asserts that the Court does not have the authority to make an order of
that the
not have
authority to make
sought. In issue is whether the Court has “subject matter competence".
the kind sought. In issue is whether the Court has "subject matter competence”. The
plaintiffs and Google agree that the type of order
plaintiffs and Google agree that the type of order II am asked to make has never
a Canadian court.
before been made by a Canadian court.
[108]
subject
[108] Google asserts that the Court lacks subject matter competence for two main
two
reasons: first, because the order is sought
non-party;
reasons: first, because the order is sought against a non-party; second, because it
would require
worldwide
latter objection
would require the Court to make an order with worldwide effect. The latter objection
Court
territorial competence
may sound like an issue more properly addressed at the territorial competence stage
the question of whether the Court has territorial
of the analysis. However, the question of whether the Court has territorial
analysis.
to
the application because of its connection to the persons or
competence to hear the application because of its connection to the persons or facts
involved
involved is distinct from the question of whether, in the words of s. 39 of the Law and
distinct from the question of whether, in the words of
Equity Act, it is “just or convenient” that the order sought should be made to enjoin or
"just or convenient" that the order sought should be made enjoin
mandate the particular conduct.
the particular conduct.
(a)
(a)

Can an order be made against a non-party?
Can an order be made against a non-party?

[109]
submits that
a Court does not have authority
[109] Google submits that as a general rule a Court does not have authority to
an order against a non-party who owes no duty to the plaintiff.
make an order against a non-party who owes no duty to the plaintiff. Google
are two exceptions to that
acknowledges there are two exceptions to that rule, but argues that neither
this
exception applies to this case.
[110]
[110] The first exception arises when a non-party with knowledge of a court order
exception
when non-party
knowledge
Court’s authority.
deliberately disobeys it and thereby deprecates the Court's authority. This exception
and thereby

2014 BCSC 1063 (CanLII)
(CanLII)

plaintiffs' application for an interim injunction against Google.
plaintiffs’ application for an interim injunction against

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Lindley
Seaward
was described by Lindley L.J. in Seavterd v. Paterson, [1897] 1 Ch. 545 (C.A.) at
Ch.

A motion to commit a man for breach of an injunction, which is technically
man for breach of an injunction, which
wrong unless he is bound by the injunction, is one thing; and a motion to
injunction,
thing;
man
commit a man for contempt of Court, not because he is bound by the
not
injunction by being a party to the cause, but because he is conducting himself
injunction by being a party to the cause, but
so as to obstruct the course of justice, is another and totally different thing. In
case the party who is bound by
injunction
the one case the party who is bound by the injunction is proceeded against
for the purpose of enforcing the order of the Court for the benefit of the
person who got it. In the other case the Court will not allow its process to be
case
Court will
set at naught and treated with contempt. In the one case the person who is
case
person
interested in enforcing the order enforces it for his own benefit; in the other
benefit;
case,
been contumaciously
case, if the order of the Court has been contumaciously set at naught the
offender cannot square it with the person who has obtained the order and
with
save himself from the consequences of his act. The distinction between the
consequences of
The distinction
two kinds of contempt is perfectly well known, although in some cases there
kinds of
is perfectly well known, although in some cases
may be a little difficulty in saying on which side of the line a case falls. As to
be a little difficulty in saying on which side of the line a case
jurisdiction, if the facts are of
stated, notwithstanding
the jurisdiction, if the facts are of the character I have stated, notwithstanding
the arguments of Mr. Seward Brice, II cannot bring myself to entertain any
Seward Brice, cannot bring
difficulty about it.
difficulty

this “contempt” exception, the Court’s objective is not to further
[111] Under this "contempt" exception, the Court's objective is not to further the
the plaintiffs, but to uphold its authority.
interests of the plaintiffs, but to uphold its authority.
[112] The plaintiffs argue that after Google received notice of this Court's orders
The plaintiffs argue that after Google received notice of this Court’s orders

defendants, should not have allowed the defendants' websites to be
against the defendants, it should not have allowed the defendants’ websites to be
displayed in Google's search results.
plaintiffs
that this amounts
displayed in Google’s search results. The plaintiffs argue that this amounts to aiding
and abetting the defendants’ contempt and
and abetting the defendants' contempt and is comparable to Greenpeace Canada v.
MacMillan Bloedel Ltd. (1994), 96 B.C.L.R. (2d) 201, 1994 CanLII 943 (C.A.), aff’d
CanLII
(C.A.), affd
MacMillan Bloedel Ltd.

MacMillan Bloedel Ltd.
1048. In that case the Court
MacMillan Bloedel Ltd. v Simpson, [1996] 2 S.C.R. 1048. In that case the Court
an injunction preventing the
all persons having notice
granted an injunction preventing the defendants and all persons having notice of the
physically obstructing the plaintiffs logging operations.
order from physically obstructing the plaintiff’s logging operations. Logging
protestors who were not named
defendants protested
protestors who were not named as defendants protested that the order was
the
J.A. rejected that notion, citing with approval at
44 the
overbroad. Macfarlane J.A. rejected that notion, citing with approval at para. 44 the
following words from Robert Sharpe's text
following words from Robert J. Sharpe’s text Injunctions and Specific Performance:
Performance:
It cannot be objected that the net of liability is cast too wide where the plaintiff
the net of liability
where the plaintiff
It
is able to show that the non-party has deliberately agreed to flout the order at
deliberately
flout
order
the instigation of the defendant. However, the court must be cautious not to
instigation of the defendant.
hold in contempt a party who acts independently of the defendant, and who
contempt party
independently of the defendant,
may exercise a right distinct from that of the defendant. Such a person has
exercise a right distinct from that of the defendant. Such

2014 BCSC 1063 (CanLII)
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555-556:

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not yet had his day in court and should not be bound by an order made in an
action to which he was not a party. [Emphasis added.]

Court’s
While Google’s search engines facilitate
Court's orders and assist the defendants. While Google's search engines facilitate
the defendants’ ongoing breach by leading searchers to the defendants' websites,
the defendants' ongoing breach by leading searchers to the defendants’ websites,
Google operates its search engines in the ordinary course of its business,
independently
defendants
independently of the defendants and not in order to assist them in their breach.
them
[114] The plaintiffs’ authorities involve quite different facts. In MacMillan Bloedel,
[114] The plaintiffs'
involve
to
those held in contempt had knowingly violated the court order to support the
defendant’s
Union
defendant's blockade of the logging road. In Glazer v. Union Contractors Ltd. and
Thornton (1960), 25 D.L.R. (2d) 653, 33 W.W.R. 145 (B.C.S.C.) the Court had
appointed a receiver over money owing to a company by the Government. A
Government.
government
government minister, aware of the order but not a party to the proceeding, was
funds
committed for contempt for causing funds owing to the company to be paid to the
company’s order rather than to the receiver.
company's order rather than to the receiver. In Attorney General v. Punch Ltd.,
[2002] UKHL 50, [2003] 1 All ER 289, an order prohibited the publication of certain
information that the non-party published in its magazine when on notice of the order.
non-party
In all of these cases, the non-parties found in contempt had engaged in conduct
calculated
Google’s search results are not of the
calculated to directly frustrate a court order. Google's search results are not of the
frustrate
same ilk.
[115] The argument that Google aided and abetted the defendants’ contempt of the
[115] The argument that Google aided and abetted the defendants' contempt of the
existing court orders is stronger in relation to Google’s sale of advertising space to
Google's sale of
when Google received notice of this Court's
the defendants. But as I noted earlier, when Google received notice of this Court’s
should
orders it agreed that it should not continue to do this. I accept that Google only
continue
continued
commencement
to
administrative
continued to do so up to the commencement of this hearing due to an administrative
oversight.
[116] The
[116] The second exception to the general rule that a Court will not make orders
rule
against a non-party extends to orders made against non-parties to aid in the fact
non-party extends
non-parties
the
finding necessary to the administration of justice. Examples of orders made against
justice.

2014 BCSC 1063 (CanLII)
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[113] There
[113] There is no evidence that Google acted in this case to deliberately flout this

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non-parties
non-parties who have no obligation to the plaintiff abound: subpoenas are issued to
have
to the plaintiff abound: subpoenas
obtain evidence at trial under Rule 12-5(31)-(39); documents and oral evidence may
Rule

[117]
Norwich Pharmacal
[117] In addition, under the Nomich Pharmacal Co. and Others v. Customs and
[Nomich
Excise Commissioners, [1974] A.C. 133, [1973] 2 All ER 943 (H.L.) [Norwich
Pharmacal]
authority,
Pharmacal] line of authority, courts can make orders against non-parties even before
an action is commenced. The remedy of pre-action discovery was articulated in
articulated
Norwich Pharmacal by
Nomich Pharmacal by Lord Reed at 175:
[I]f through no fault of his own a person gets mixed up in the tortious acts of
others so as to facilitate their wrong-doing he may incur no personal liability
but he comes under a duty to assist the person who has been wronged by
giving him full information and disclosing the identity of the wrongdoers. I do
identity
not think that it matters whether he became so mixed up by voluntary action
on his part or because it was his duty to do what he did. It may be that if this
causes him expense the person seeking the information ought to reimburse
information ought
him. But justice requires that he should co-operate in righting the wrong if he
unwittingly facilitated its perpetration.

Norwich Pharmacal
Nomich Pharmacal has been adopted as part of the law in British Columbia:
Kenney v. Loewen
Kenney v. Loet4en (1999), 64 B.C.L.R. (3d) 346, 1999 CanLII 6110 (S.C.), Procon
Mining and Tunnelling Ltd. et al. v. McNeil, Bonnar et al., 2007 BCSC 454 [Procon
McNeil, Bonner
Mining
Tunnelling
Publishing
Mining], and Pierce v. Canjex Publishing Ltd., 2011 BCSC 1503.
[118]
Norwich
goes
[118] Google argues that the Norvtich Pharmacal line of authority goes no further
non-party
than compelling a non-party to provide information and is only imposed in
exceptional cases with due concern for the non-party against whom the order is
the non-party
whom the
AG
sought: GEA Group AG v. Ventra Group Co., 2009 ONCA 619 [Ventra] at para. 85.
[Ventre]
[119]
authority
[119] I do not accept Google’s submission that the Court only has authority to make
Google's
non-party in
or further
an order against a non-party in relation to contempt or to further fact finding
necessary to effect justice. Lack of precedent should not be confused with lack of
should not
confused
subject matter competence.
[120]
[120] Lord Woolf M.R. described this distinction in Broadmoor Hospital Authority &
Anor v. R, [1999] EWCA Civ 3039, [2000] QB 775 at para. 21:

2014 BCSC 1063 (CanLII)
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advance
also be obtained in advance of trial under Rules 7-1(18) and 7-5.
under Rules

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Page 32

[21]
The powers of courts with equitable jurisdiction to grant injunctions
Injunctions
are, subject to any relevant statutory restrictions, unlimited. Injunctions are
granted only when to do so accords with equitable principles, but this
restriction involves, not a defect of powers, but an adoption of doctrines and
practices that change in their application from time to time. Unfortunately
there have sometimes been made observations by judges that tend to
confuse questions of jurisdiction or of powers with questions of discretions or
of practice. The preferable analysis involves a recognition of the great width
involves
of equitable powers, an historical appraisal of the categories of injunctions
that have been established and an acceptance that pursuant to general
equitable principles injunctions may issue in new categories when this course
this
appears appropriate.

[121] The Court has inherent jurisdiction to maintain the rule of law and to control
inherent
The
its own process. The power to grant injunctions is a broad one and is confirmed by
The
injunctions
confirmed
which
Injunctions
s. 39 of the Law and Equity Act. Injunctions may be issued in "in all cases in which it

convenient
appears to the court to be just or convenient that the order should be made ... on
should
terms and conditions the court thinks just”: MacMillan
terms and conditions the court thinks just": MacMillan Bloedel, [1996] 2 S.C.R. 1048
at para. 15.
[122] The Court’s willingness to use its equitable jurisdiction against non-parties is
The Court's willingness to use its equitable jurisdiction against non-parties

injunctions.
is particularly
evident in the development of Mareva injunctions. This line of authority is particularly
the development
helpful
injunctions
involve
helpful because Mareva injunctions also involve orders against non-parties who
reside outside of the province.
injunction
[123] Madam Justice Newbury granted the first Mareva injunction in Canada in
Newbury
the
Mooney v. Orr
Mooneyv. Orr (1994), 98 B.C.L.R. (2d) 318 (S.C.) [Mooney No. 1] on an ex parte
[Mooney No. 1]
granting
application. After referring to English and Australian cases granting such relief, she
observed at para. 11:
The reasons for extending Mareva injunctions to apply to foreign assets are
extending Mareva
apply
valid in British Columbia no less than in England and Australia - the notion
that a court should not permit a defendant to take action designed to frustrate
defendant
designed
existing or subsequent orders of the court, and the practical consideration
that in this day of instant communication and paperless cross-border
and paperless cross-border
transfers, the courts must, in order to preserve the effectiveness of their
judgments, adapt to new circumstances.
adapt new circumstances.

months
[124] Madam Justice Huddart continued the injunction in a hearing two months later
Huddart continued the injunction
hearing
with both parties present: Mooney v. Orr (1994), 100 B.C.L.R. (2d) 335 (S.C.)

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[Mooney No. 2]. She agreed that Mareva orders were a necessary development,
that
a necessary development,

Whether this
Whether this extension of existing principles is seen as an expansion of the
principles is seen
exercise of discretion given by the Law and Equity Act or inherent in the
given
court's ability to control its process, II am of the view that such a discretion
ability to control its process, am of the
must be exercised whenever it is required to ensure the effective
it
administration of justice in British Columbia..
in British Columbia..
[125] In England, where Mareva injunctions were first made in 1975, such orders
In
injunctions were first made in 1975, such

originally restricted to assets within England. In the late
English
were originally restricted to assets within England. In the late 1980s the English
courts relaxed
restrictions to apply to the defendants'
courts relaxed those restrictions to apply to the defendants’ assets wherever they
wherever
ancillary
to non-parties resident in
were situated, and ancillary orders were extended to non-parties resident in foreign
countries.
could not only be restrained from dealing with the defendants’
countries. Non-parties could not only be restrained from dealing with the defendants'
could
transfer
assets, but could also be mandated to take steps to transfer assets to a receiver
located elsewhere:

extra-territorial
[126] The extra-territorial reach of these orders is evident. Vaughan Black and
these
is evident.
Babin
on
development of the law in “Mareva Injunctions
Edward Babin commented on the development of the law in "Mareva Injunctions in
Territorial Aspects" (1997) 28 Can Bus IJ 430
Canada: Territorial Aspects” (1997) 28 Can Bus LJ 430 at 441:
these considerations [favouring
All of these considerations [favouring the granting of extra-territorial orders]
run up against one principal objection: the judicial power of all national courts
principal
is territorially circumscribed and it is improper for a court to attempt to
territorially circumscribed
is
for
exercise its power to affect actions outside the court’s territory. Stated so
exercise its power to affect actions outside the court's territory. Stated so
broadly, that limitation must now be seen as dated and lacking in general
broadly,
limitation must now be seen
validity, or at
seems little
validity, or at least subject to several exceptions. There now seems little
to several
doubt that Canadian courts actually have the power to employ in personam
doubt
actually
orders to enjoin parties to do or refrain from doing something anywhere in the
doing
world. [Emphasis added.]

include
from
[127] The expansion of Mareva orders to include non-parties resulted from the
Courts’ recognition that
practical effect without
Courts' recognition that Mareva injunctions would have no practical effect without
injunctions would
involving non-parties.
because unscrupulous defendants will simply
involving non-parties. That is so because unscrupulous defendants will simply fail to
accountants, lawyers
comply with the injunction, whereas the defendants’ brokers, accountants, lawyers
with the injunction, whereas the defendants'
likely to
and bankers are less likely to engage in such conduct. However, as Black & Babin
such conduct. However,
453, the rights of non-parties
the states in which they
must
observed at 453, the rights of non-parties and the states in which they reside must
taken into account:
be taken into account:

2014 BCSC 1063 (CanLII)
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saying
saying at para. 60:

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[128]
developed protections
[128] The Courts have developed protections for non-parties who are not resident
non-parties
a presence within this jurisdiction but
in the province, or who may have a presence within this jurisdiction but are also
a number of jurisdictions
territory.
present or resident in a number of jurisdictions outside the territory. In recognition of
may be subject to laws in force in the foreign jurisdiction
the fact that such persons may be subject to laws in force in the foreign jurisdiction
which forbid compliance with an order made
included
which forbid compliance with an order made by this Court, the Court has included in
this Court, the Court
worldwide Mareva injunctions terms which have come to be known as the "Babanaft"
injunctions terms which have come to be known as the “Babanaft”
“Baltic” provisos.
and "Baltic" provisos.
[129]
Andrew Valentine describe these provisos
[129] Stephen Pitel and Andrew Valentine describe these provisos and the
rationale behind their inclusion in worldwide Mareva injunctions in “The Evolution of
their inclusion
injunctions in "The Evolution of

Extra-Territorial Mareva Injunction in Canada: Three Issues" (2006) 2 J P Int’l L
the Extra-Territorial Mareva Injunction in Canada: Three Issues” (2006) 2 J P Int'l L
339 at 371-377. Babanaft and Baltic provisos are intended to ensure that courts do
courts
provisos are
ensure
exorbitant jurisdiction over non-parties situated abroad and
not exercise exorbitant jurisdiction over non-parties situated abroad and are
particularly important defining the
particularly important in defining the effect of worldwide Mareva injunctions on
injunctions
with a presence both inside and outside the local jurisdiction.
corporate non-parties with a presence both inside and outside the local jurisdiction.
[130]
[130] The Babanaft proviso states in part that where a corporate non-party has a
proviso states in part that where corporate non-party has
outside of the jurisdiction, must have
presence in and outside of the jurisdiction, it must have notice of the order and the
abroad that would aid in violation of the injunction.
ability to restrain activities abroad that would aid in violation of the injunction.
[131]
proviso
[131] The Baltic proviso permits corporate non-parties to comply with their foreign
obligations
legal obligations as they reasonably perceive them.
[132] Although Mareva injunctions are granted at the plaintiff’s suit, a Mareva
[132]
injunctions are granted the plaintiffs suit,

order’s primary function is maintaining the integrity of the Court's process. Madam
order's primary function is maintaining the integrity of the Court’s process. Madam
Justice Huddart
Speditions
Justice Huddart wrote in Grenzservice Speditions Ges.m.b.h v. Jans (1995), 15
at
B.C.L.R. (3d) 370, 1995 CanLII 2507 (S.C.) at para. 92:
[92] The Mareva and Anton Pillar orders were conceived not so much to
The Mareva and Anton Pillar orders were conceived not so much
protect plaintiffs as to protect the Court’s jurisdiction against defendants bent
plaintiffs as to
Court's jurisdiction against defendants

2014 BCSC 1063 (CanLII)
(CanLII)

[T]his practical need to control the actions of non-parties must, as is the case
non-parties
case
with parties, be balanced against such persons’ legitimate interests in privacy
persons'
and liberty of action (including such rights as they may have acquired by
contract), and against the rights of other states to sovereign jurisdiction over
persons and activities within their boundaries.

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on dissipating or secreting their assets or evidence in order to render
inconsequential the judicial process against them. …
inconsequential the judicial process against them....

party resident in a foreign jurisdiction in appropriate circumstances. The fact that an
circumstances.
injunction
injunction has not before been made against an internet search provider such as
against an intemet
provider such
carefully,
Google is reason to tread carefully, but does not establish that the Court does not
make
have subject matter competence. Indeed, the notion that a court may only make the
orders it has made in the past is anathema to the spirit of the common law. As
anathema
common
Newbury
Mooney
Newbury J. observed in Mooney No. 1 at para. 11:
… the courts must, in order to preserve the effectiveness of their judgments,
... the courts must, order
circumstances. Such adaptability
adapt to new circumstances. Such adaptability has always been, and
continues to be, the genius of the common law.

(b)
(b)

Should I make this order against Google?
Should I make this order against Google?

[134] Having
injunction
[134] Having determined that the Court has authority to issue an injunction with
extra-territorial
it
convenient
extra-territorial effect against a non-party where it is just or convenient to do so, the
case?
question remains: should II grant the injunction on the facts of this case? A related
remains: should grant the injunction on the facts of
question is what test should be applied in making that determination.
should
determination.
[135]
[135] Google submits that it would not be just to make the order sought for four
would
just
reasons.
[136]
valuable
[136] First, Google says that it provides an important and valuable tool for
that
important
navigating hundreds trillions webpages
navigating hundreds of trillions of webpages on the internet. Google argues it
the intemet.
argues
or
disputes over
cannot, as a practical matter, monitor content or arbitrate disputes over content
because of the enormous volume of content; because it cannot determine whether
whether
enormous volume
because content on websites is constantly
information is inaccurate or lawful; and because content on websites is constantly
changing
judgments
changing so even if Google could form judgments about the content of sites on its
could
the content
judgments would
moments
index at any given moment, those judgments would be obsolete moments later.
moment,
[137] Whether Google is a passive indexer with no control over content has been
[137] Whether
indexer
control
content has
González,
the subject of litigation in other jurisdictions: Gonzalez, Max Mosely, and Trkulja.
However,
However, the order sought in the present case would not require Google to monitor

2014 BCSC 1063 (CanLII)
(CanLII)

[133] conclude
authority
[133] I conclude that the Court has authority to grant an injunction against a non-

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the content of the defendants' websites. Rather, the order would simply require
the content of the defendants’ websites. Rather, the order would simply require
all of the defendants’ websites from its searches. To put it simply,
Google to remove all of the defendants' websites from its searches. To put it simply,
slight
of individual
order is, in many ways, only a slight expansion on the removal of individual URLs,
agreed to do voluntarily.
which Google agreed to do voluntarily.
[138]
submits would
unjust to
sought
[138] Second, Google submits it would be unjust to make the order sought because
de-indexing entire websites without regard to content of the specific URLs would
without
specific
would
constitute undue censorship. Google's employee
constitute undue censorship. Google’s employee Mr. Smith deposed:
not
identified may
URLs not specifically reviewed and identified may be used for any number of
innocent purposes and a complete removal could result in possibly numerous
a complete removal could result in
being blocked
had the opportunity
URLs being blocked without Google having had the opportunity to review
determine if a departure from its
them and determine if a departure from its usual indexing process is
necessary or warranted in the circumstances.
in

[139]
find this argument
that it
[139] I do not find this argument persuasive. Google acknowledges that it alters
search results to avoid generating links to child pornography and “hate speech”
search results to avoid generating links to child pornography and "hate speech"
recognizes its corporate responsibility this
employing 47 fullwebsites. It recognizes its corporate responsibility in this regard, employing 47 fulldown specific
time employees worldwide who, like Mr. Smith, take down specific websites,
who,
including
Excluding the defendant’s prohibited
including websites subject to court order. Excluding the defendant's prohibited
subject court
websites from search results is in keeping with Google’s approach to blocking
websites from search results is in keeping with Google's approach to blocking
websites subject to court order.

[140] Third,
that
Court should
make an order that could
[140] Third, Google argues that the Court should not make an order that could
because it would
in the impossible
affect searches worldwide because it would put Google in the impossible situation of
something
being ordered to do something that could require it to contravene a law in another
to contravene
jurisdiction. This raises the concern
jurisdiction. This raises the concern addressed by the Baltic proviso in Mareva
injunctions.

[141]
as an example of such jurisdictional difficulties the case
[141] Google gives as an example of such jurisdictional difficulties the case of
Yahoo! Inc. v. La Ligue Contre Le Racism et L’Antisemitisme [Yahoo]. In 2000 two
Racism et LAntisemitisme
In 2000 two

groups filed suit
French anti-racism groups filed a suit in France against Yahoo alleging that Yahoo
Yahoo
violated a French law prohibiting the display of Nazi paraphernalia by permitting
violated
law prohibiting the
by permitting

The plaintiffs
users of its internet auction services to display and sell such artifacts. The plaintiffs
internet

2014 BCSC 1063 (CanLII)
(CanLII)

it is not a question of blocking what is being said, but rather who is saying it. The
not
blocking what being said, but rather
saying

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demanded that Yahoo’s French subsidiary, Yahoo.fr, remove all hyperlinks to
demanded that Yahoo's French subsidiary, Yahoo.fr, remove all hyperlinks to the
containing
offending content.
parent website (Yahoo.com) containing the offending content. As in this case, Yahoo
States. The French Court held that it could properly
were located in the United States. The French Court held that it could properly
jurisdiction because the damage
suffered
required
assert jurisdictionbecause the damage was suffered in France and required Yahoo
“take all necessary measures” to “dissuade and render impossible”
to "take all necessary measures" to "dissuade and render impossible" all access via
yahoo.com by intemet users in France to the Yahoo! intemet auction service
by internet users in France to the Yahoo! internet auction service
displaying
artifacts,
to block internet users
displaying Nazi artifacts, as well as to block internet users in France from accessing
other online Nazi material: 145 F Supp 2d 1168 (ND Cal 2001) at 1172.
other online Nazi material: 145 F Supp 2d 1168 (ND Cal 2001)
[142] Yahoo claimed that implementing the order would violate its First Amendment
[142]
claimed that implementing the order would violate its

rights to freedom expression
rights to freedom of expression and therefore could not be enforced in the United
therefore could
States. The French Court did not accept that submission. Yahoo initiated a suit in
French Court did not accept that submission.
initiated a suit
California against the French plaintiffs, and obtained a declaratory judgment that the
plaintiffs,
judgment
constitutionally unenforceable the
States, contrary
French orders were constitutionally unenforceable in the United States, contrary to
issue international comity,
the first amendment. Addressing the issue of international comity, the Court
States Courts will generally
enforce
reasoned that United States Courts will generally recognize and enforce foreign
judgments
could not do
enforcement of
judgments but could not do so on the facts of that case because enforcement of the
the facts of that case
French orders would violate Yahoo's constitutional rights to free speech: 169
French orders would violate Yahoo’s constitutional rights to free speech: 169 F Supp
1181 (ND Cal 2001) at 1192-1193. This decision was ultimately reversed
2d 1181 (ND Cal 2001) at 1192-1193. This decision was ultimately reversed on
different grounds: 379 F 3d 1120 (9th Cir 2004), reheard in 433 F 3d 1199
different grounds: 379 F 3d 1120 (9th Cir 2004), reheard in 433 F 3d 1199 (9th Cir
2006).

[143] Yahoo provides a cautionary note. As with Mareva injunctions, courts must be
cautionary
injunctions, courts must
[143]
cognizant
potentially compelling non-party to take action in a foreign jurisdiction
cognizant of potentially compelling a non-party to take action in a foreign jurisdiction
would
jurisdiction. That concern can
that would breach the law in that jurisdiction. That concern can be addressed in
injunctions, by inserting
appropriate cases, as it is for Mareva injunctions, by inserting a Baltic type proviso,
non-party from compliance with the order if to do so would
which would excuse the non-party from compliance with the order if to do so would
would
breach local laws.

[144] In
is
[144] In the present case, Google is before this Court and does not suggest that an
present
that
requiring to block the defendants' websites would offend California law,
order requiring it to block the defendants’ websites would offend California law, or

2014 BCSC 1063 (CanLII)
(CanLII)

Court lacked jurisdiction
because its
argued that the French Court lacked jurisdiction over the matter because its servers
the

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the
of
state or country from
search could be conducted.
indeed the law of any state or country from which a search could be conducted.
that most countries will
intellectual
Google acknowledges that most countries will likely recognize intellectual property

[145] Fourth,
that the order sought is
broad.
submits
[145] Fourth, Google argues that the order sought is too broad. Google submits that
if the injunction is granted it should be limited to Google.ca, the website designated
the injunction is granted it should be limited to Google.ca, the

an order that
a reach that extends
for Canada, because no court should make an order that has a reach that extends
Canada, because no court should
around the world.
[146]
the
me, the injunction would
[146] I note again that on the record before me, the injunction would compel Google
steps
in which
controlled,
to take steps in California or the state in which its search engine is controlled, and
would not therefore direct that steps
around
of
would not therefore direct that steps be taken around the world. That the effect of the
injunction could reach beyond one state is a separate issue.
injunction could reach beyond one state is a separate issue. Even an order
mandating or enjoining conduct entirely within British Columbia may have such
enjoining conduct entirely within British Columbia may

extraterritorial,
extraterritorial, or even worldwide effect.
[147] For example, a non-party corporation that warehouses and ships goods for a
[147]
a non-party corporation
ships

manufacturing
might be ordered on an interim injunction
defendant manufacturing company might be ordered on an interim injunction to
the defendants’ goods and refrain from shipping them. That injunction could
freeze the defendants' goods and refrain from shipping them. That injunction could
customers around the
affect orders received from customers around the world. Could it sensibly be argued
sensibly
could
injunction
that the Court could not grant the injunction because it would have effects
would have
worldwide?
impact of an injunction
worldwide? The impact of an injunction on strangers to the suit or the order itself is a
valid consideration in deciding whether to exercise the Court’s jurisdiction to grant an
valid consideration in deciding whether to exercise the Court's jurisdiction to grant an
injunction. It does not, however, affect the Court’s authority to make such an order.
injunction. It does not, however, affect the Court's authority to make such an order.
[148] Further, although
a website for each country
[148] Further, although Google has a website for each country to which searches
country default, users
made within that country default, users can override that default and access other
that default
country’s Google websites. For example, even if the defendants’ websites were
country's Google websites. For example, even if the defendants' websites were
conducted through
Canadian users
blocked from searches conducted through www.google.ca, Canadian users can go
or www.google.fr and obtain results including the defendants’
to www.google.co.uk or www.google.fr and obtain results including the defendants'
record
that
within
websites. On the record before me it appears that to be effective, even within
Canada, Google must block search results on all of its
Furthermore,
Canada, Google must block search results on all of its websites. Furthermore, the
defendants’ sales originate primarily in other countries, so the Court’s process
defendants' sales originate primarily in other countries, so the Court's process

2014 BCSC 1063 (CanLII)
(CanLII)

rights
selling
wrong.
rights and view the selling of pirated products as a legal wrong.
products

- 39 - 39 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 53 of 143

Equustek Solutions Inc. v. Jack

Page 39

cannot
unless
injunction ensures
cannot be protected unless the injunction ensures that searchers from any
jurisdiction do not find the defendants' websites.
jurisdiction do not find the defendants’ websites.

Google’s argument that removal of images should be restricted to searches that
Google's argument that removal of images should be restricted to searches that
Moselyat
could
conducted
translation
could be conducted from within France (English translation of Max Mosely at 13).
within France

restriction was
constituting a breach of France's penal
That restriction was based on the images constituting a breach of France’s penal
code; publication of the images was not a breach of the laws of other countries. The
publication of the images
countries.
not
therefore
from
“search
French Court therefore ordered Google to remove the images from the "search
accessible in France”.
distinguishable
engine that it operates, accessible in France". Max Mosely is distinguishable on that
basis.

[150]
[150] Accepting that an order with worldwide effect can be granted, what test
that
with worldwide effect can
should
determining whether should
conclude that
should be applied in determining whether it should be granted? I conclude that the
sought
non-party
order sought against a non-party requires the Court to consider the standard test for
the
granting
injunction
into
the direction a non-party.
granting an injunction but modified to take into account the direction to a non-party.
In Mooney No. 2, Huddart J. described an appropriate standard at p. 22:
Huddart
appropriate standard at
The comparable approach to a Mareva injunction would be to require a
injunction would be require
strong prima facie (…) or a good arguable case (...) to cross the threshold,
(…) to cross the threshold,
(...)
and then to balance the interests of the two parties, having regard to all the
relevant factors in each case, to reach a just and convenient result.
a just
convenient
in
case,

[151]
of course to the plaintiffs’ claim against
[151] The fair question to be tried relates of course to the plaintiffs' claim against
since that is the cause of action in relation to which the injunction
the defendants, since that is the cause of action in relation to which the injunction is
sought.
no issue with that. In this case the plaintiffs have not only
sought. Google takes no issue with that. In this case the plaintiffs have not only
raised an arguable claim; two of the defendants’ defences have been struck and
the defendants' defences have been struck and

to have admitted the allegations.
they are presumed to have admitted the allegations.
[152]
interests
plaintiffs and non-party
[152] As for balancing the interests of the plaintiffs and non-party Google, the
balancing
plaintiffs have established that they
suffering
defendants’
plaintiffs have established that they are suffering irreparable harm by the defendants'
ongoing sale the GW1000 on the internet. The plaintiffs have also established
ongoing sale of the GW1000 on the internet. The plaintiffs have also established that
inadvertently facilitating that harm through its search
Google is inadvertently facilitating that harm through its search engines. While there
other search engines, Google does not contest the plaintiffs’ assertion that
are other search engines, Google does not contest the plaintiffs' assertion that
Google’s position as the search engine used for 70-75% of internet
Google's position as the search engine used for 70-75% of internet searches means

2014 BCSC 1063 (CanLII)
(CanLII)

[149] Google relies on Max Mosely in which the Regional Court of Paris acceded to
[149]
which the
Court

- 40 - 40 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 54 of 143
Equustek Solutions Inc. v. Jack

Page 40

will
be commercially successful if
cannot be found through
the defendants will not be commercially successful if they cannot be found through
Google’s
Google's search services.

inconvenienced
way or that it would incur
not assert that it would be inconvenienced in any material way or that it would incur
would
to do so. The balance of convenience thus favours granting the injunction.
expense to do so. The balance of convenience thus favours granting the injunction.
Consideration of the factors identified Norwich Pharmacal
[154] Consideration of the factors identified in Nomich Pharmacal may also be of
assistance: Procon Mining at para. 27; Ventra at para. 50. Modified to reflect the
50. Modified to reflect the
sought
include:
relief sought in this case they include:
a.

the applicant
provided
sufficient
valid,
Whether the applicant has provided evidence sufficient to raise a valid,
claim;
bona fide or reasonable claim;

b.
b.

the applicant has established a relationship with the third
Whether the applicant has established a relationship with the third
party such that it establishes that the third party is somehow involved
the third party is somehow involved
of;
in the acts complained of;

c.
c.

the third
only
to obtain
Whether the third party is the only practicable means to obtain the
relief sought;

d.
d.

the third
can be indemnified for costs to which the third
Whether the third party can be indemnified for costs to which the third
party may be exposed because of the order; and
party

e.

the interests of justice
granting of the relief sought.
Whether the interests of justice favour the granting of the relief sought.

To this list of considerations would add the degree to which
interests
[155] To this list of considerations II would add the degree to which the interests of
applicant and the identified non-party could be affected –
those other than the applicant and the identified non-party could be affected — here
potential purchasers will not be able to find and buy the defendants' products as
potential purchasers will not be able to find and buy the defendants’ products as
but that is as it should be in light of the existing court orders prohibiting
easily, but that is as it should be in light of the existing court orders prohibiting the
defendants
defendants from selling the GW1000 and related products.
selling the GW1000 and related products.
Google an innocent bystander but is unwittingly facilitating the
[156] Google isis an innocentbystander but itit is unwittingly facilitating the
defendants’ ongoing breaches of
is
defendants' ongoing breaches of this Court’s orders. There is no other practical way
Court's orders.

2014 BCSC 1063 (CanLII)
(CanLII)

Google acknowledges that it can do what is being
[153] Google acknowledges that it can do what is being asked of it. Google does

-41 - 41 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 55 of 143
Equustek Solutions Inc. v. Jack

Page 41

for the defendants' website
There is no other practical
for the defendants’ website sales to be stopped. There is no other practical way to
remove the defendants’ websites from Google’s search results.
remove the defendants' websites from Google's search results.

injunction is just and equitable in all of the circumstances of the case:
injunction is just and equitable in all of the circumstances of the case: Tracey v.
Financial Solutions
Instaloans Financial Solutions Centres (B.C.) Ltd., 2007 BCCA 481 at para. 31. A
not
prisoner of formula.
judge must not become the prisoner of a formula. As Saunders J.A. observed in
Saunders
observed
Tracey at para. 33:
… the criteria [for determining whether to grant an injunction] are only a
injunction]
... the criteria [for determining
only
of the statutory authority for injunctions
judicial expression or explanation of the statutory authority for injunctions in
s. 39(1) of the Law and Equity Act, …
of
Equity
...
An injunction or an order in the nature of mandamus
39(1) An injunction or an order in the nature of mandamus may be
granted or a receiver or receiver manager appointed by an
interlocutory order of the court in all cases in which it appears to the
interlocutory order of the court in all cases
it
court to be just or convenient that the order should be made.
just or convenient that the order should be made.
[Emphasis in original]
[Emphasis in original]
[158] In determining whether this interim injunction should be granted, I am mindful
injunction should
am mindful

Madam Justice Newbury’s admonition that a court should
of Madam Justice Newbury's admonition that a court should not permit a defendant
to frustrate orders of the court and that “courts must, order to
to frustrate orders of the court and that "courts must, in order to preserve the
effectiveness of their judgments, adapt to new circumstances": Mooney (No. 1) at
judgments, adapt to new circumstances”: Mooney
paras. 10-11.

must adapt
reality e-commerce with its
[159] The Court must adapt to the reality of e-commerce with its potential for abuse
would
the
others
sell through
by those who would take the property of others and sell it through the borderless
those
electronic
conclude that an interim injunction should
electronic web of the internet. II conclude that an interim injunction should be granted
compelling Google to block the defendants' websites from Google’s search results
compelling Google to block the defendants’ websites from Google's search results
worldwide.
preserve the Court’s process and to ensure
worldwide. That order is necessary to preserve the Court's process and to ensure
the defendants cannot continue to flout the Court’s orders.
that the defendants cannot continue to flout the Court's orders.
[160] Non-parties affected by Mareva injunctions are not normally before the Court,
Non-parties affected
injunctions are not normally

applications that kind
because applications of that kind are brought without notice. Google was named in
brought without notice. Google was
this application, served with materials,
hearing. It is not therefore
this application, served with materials, and attended the hearing. It is not therefore
anticipating
conflicts Google could
necessary to craft terms anticipating possible conflicts Google could face in

2014 BCSC 1063 (CanLII)
(CanLII)

fundamental question
case is whether
granting
[157] The fundamental question in each case is whether the granting of an

- 42 - 42 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 56 of 143
Equustek Solutions Inc. v. Jack

Page 42

complying with the interim injunction. No terms of this kind have been
complying with the interim injunction. No terms of this kind have been requested by
see no basis on the record before me to expect such difficulties.
Google and II see no basis on the record before me to expect such difficulties.

I conclude that the interim injunction sought should be granted:
[161] I conclude that the interim injunction sought should be granted:
date of
judgment,
Inc. is to cease indexing
Within 14 days of the date of this judgment, Google Inc. is to cease indexing
referencing
results
or referencing in search results on its internet search engines the websites
its internet
contained
the notice of application.
contained in Schedule A to the notice of application.
VII.
COSTS
VII. COSTS
The plaintiffs are entitled to special costs of this application against the
[162] The plaintiffs are entitled to special costs of this application against the
defendants
and Datalink 7. Special costs are justified
defendants Morgan Jack, Datalink 4 and Datalink 7. Special costs are justified
plaintiff’s application to enjoin Google was made necessary by the
because the plaintiffs application to enjoin Google was made necessary by the
defendants’ flagrant and ongoing breaches of this Court’s orders.
defendants' flagrant and ongoing breaches of this Court's orders.

The Honourable Madam Justice L.A. Fenlon
Honourable Madam Justice

2014 BCSC 1063 (CanLII)
(CanLII)

VI.
CONCLUSION
VI. CONCLUSION

- 43
- 43 Case 5:17-cv-04207-NC Document -1 Filed 07/24/17 Page 57 of 143

SUPREME COURT
COLUMUIA
OF
VANCOUVER REGISTRY
NE

SP 2 2 2014

No. S112421
Vancouver Registry

ENTF RED
4,

THE SUPRE E COURT OF BRITISH COLUMBIA

BETWEEN:
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES INC.
PLAINTIFFS
AND:
MORGAN JACK, ANDREW CRAWFORD,
DATALINK TECHNOLOGIES GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM, MIKE
BUNKER, and IGOR C,HEIFOT
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

) THE HONOURABLE
) Friday, the 13th day of
)
MADAM JUSTICE FENLON ) June 2014

ON THE APPLICATION of the plaintiffs dated November 13, 2012, coming on for
hearing at Vancouvern October 22 and 23, 2013, and February 7, 2014, and on
hearing Robbie Fleming, counsel for the plaintiffs, and Stephen R. Schachter Q.C. and
Geoffrey B. Gomery Q.C., counsel for the application respondents Google Canada
Corporation and Google Inc., and no one appearing for the remaining defendants; and
on reading further written submissions dated March 7 and 24, 2014, and May 23 and
29, 2014; and JUDGMENT BEING RESERVED TO THIS DATE:

THIS COURT ORDERS THAT:
1.

Within 14 days of the date of this order, Google Inc. is to cease indexing or
referencing in search results on its internet search engines the websites listed
in Schedule A, including all of the subpages and subdirectories of the listed
websites, until the conclusion of the trial of this action or further order of this
court;

2.

By September 23, 2014, Google Inc. is to cease indexing or referencing in
search results on its internet search engines the websites listed in the following

011867\001\00076680

www.roberffieminglawyers.com

44
- 44
Case 5:17-cv-04207-NC Document - Filed 07/24/17 Page 58 of 143
1

schedules, including all of the subpages and subdirectories of the listed
websites:
a. the additional websites referenced in the December 13, 2012 Order of
Tindale J., as set out in "Schedule B" attached, and
b. the additional websites referenced during the hearing of this application,
as set out in "Schedule C" attached;
until the conclusion of the trial of this action or further order of this court;
3.

The plaintiffs and Google Inc. have liberty to apply to vary any part of this order,
including the Schedules;

4.

Madam Justice Fenton is seized of any applications brought pursuant to
paragraph 3 above; and

5.

The plaintiffs are awarded special costs of this application against the
defendants Morgan Jack, Datalink Technologies Gateways Inc. and Datalink
Technologies Gateways LLC.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND
CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS
BEING BY CONSENT:

lawyer for the plaintiffs
obbie Fleming

Signature---awyer for Google C nada Corporation
o.f
and Google Inc.
Geoffrey B. Gomery

011867\001\00076680

www.robertfleminglawyers.com

- 45
- 45 Case 5:17-cv-04207-NC Document - Filed 07/24/17 Page 59 of 143
1

"Schedule A"
wwvv.datatechgateways.com
www.gw1000.com
www.protocolconverter.com
www.datalinkgateways.com
www. datalink-gateways. com
www.datalink-networks.com
www.1770-kf3.com
www.1784-ktx.corn
www.1784-pcmk.com
www.datalinkcontrollers.corn
www.datalink-networking.corn
www.datalinkgw1000.com
wwvv.datalinkinterfaces.corn
www.gw-1000.com
www.1784u2dhp.com
wvvw.dhtoethernet.corn
vvvvw.datalinkconverters.corn

011867\001\00076680

www.robertfleminglawyers.com

-

- 46
- 46
Case 5:17-cv-04207-NC Document -1 Filed 07/24/17 Page 60 of 143

"Schedule B"

www.multigatecommunications.com
www.americangatewaycorp. corn
www.ethernetinterfaces.com
wvvw.ethernetdhplus. corn
www.gatewayinterfaces.com
www.m ultigatecom .com
www.dlgw1000.com
wvvw.gw1000-dh4851.com
www. gateway-1000. corn
wvvw.gatewaytech 1000. corn

011867\001\00076680

www.robertfleminglawyers,com

- 47 - 47
Case 5:17-cv-04207-NC Document-1 Filed 07/24/17 Page 61 of 143

"Schedule C"

wvvw.eth ernetdatah ighway. corn
vvww.dl-gw-1 000. com
www.abethernetsolutions.com
www.dhethernetprotocol.com
www.gw1000-dhp1.com
www.1770kf2.com

011867\001\00076680

www.robertfleminglawyers.com

- 49 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 62 of 143

- REME COURT
P
OF BRITISH COLUMBIA
VANCOUVER REGISTRY

No. S112421
Vancouver Registry

DEC 1 5 2014
ENTERED

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN:
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES INC.

PLAINTIFFS

AND:
MORGAN JACK, ANDREW CRAWFORD,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM, MIKE
BUNKER and IGOR CHIEFOT

DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

) THE HONOURABLE
) Thursday, the 27th day of
)
MADAM JUSTICE FENLON ) November 2014

ON THE APPLICATION of the plaintiffs dated November 12, 2014, coming on for
hearing at Vancouver, BC, on November 27, 2014 and on hearing John Zeljkovich,
counsel for the plaintiffs, and Geoffrey B. Gomery Q.C., counsel for the application
respondent Google Inc., and no one appearing for the remaining defendants;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include the additional
websites listed as Schedule "A" to this order;

www.robertfleminglawyers.com

- 50
-50Case 5:17-cv-04207-NC Document - Filed 07/24/17 Page 63 of 143
1

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its internet search engines the websites listed in
Schedule "A to this order, including all subpages and subdirectories of those
websites, until the conclusion of the trial of this action or further order of this
court;

3.

Future applications brought by the plaintiffs to vary the Schedules contained in
the June 13, 2014 order made in this action can be made by giving written notice
of their application (including supporting materials) to Google Inc. (without notice
to any of the other defendants), and requiring that Google Inc. inform the
plaintiffs of its position in response to the application within 5 business days; in
the event that Google Inc. opposes the application, the matter may be set down
in the usual manner, with the plaintiffs providing notice to Google Inc. and the
defendant Igor Cheifot; and in the event that Google Inc. does not oppose the
application, the plaintiffs may proceed with the matter by way of desk order;

4.

By consent, this order, and any subsequent orders amending or supplementing
the Schedules contained in the June 13, 2014 order made in this action, will
stand, fall or be varied according to any order pronounced by the Court of Appeal
from the order pronounced June 13, 2014.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

Signatu of lawyer for the plaintiffs
John Zeljkovich

Signature of law r for Google Inc.
Geoffrey B. Gomery, Q.C.

By the Court.

Registrar

www.robertfleminglawyers.com

- 51 - 51 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 64 of 143

Schedule A
www.1784pktx.com
www.controllogixethernet.com
www.controllogixqateways.com
www.datalink-converters.com
www.datalink-interfaces.com
www.datalinkconverters.com
www.dhpqateway.com
www.dhpgateways.com
www.dhptoethernet.com
www.ethernetqateways.com
www.ethernetipconverter.com
www.ethernetipdhplus.com
www.gatewayprotocol.com
www.gatewayprotocols.com
www.gatewaytodhp.com
www.gw1000-abeip.com
www.gw1000-dh485eip.com
www.qw1000-dh485me.com
www.gw1000-dhpa.com
www.gw1000-dhpm.com
www.multi-gateways.com
www.multigateprotocols.com

www.robertfleminglawyers.com

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 65 of 143

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 66 of 143

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 67 of 143

- 53 53 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 68 of 143

SUPREME COURT
BRITISH COLU MBIA
VANCOUVER REGISTRY

APR 2 3 2015

No. S112421
Vancouver Registry

GtNITRgn

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

)

BEFORE

)

)
)y4

)
)

u-AtviE
t

ft-w- Comer

, theZ day of
April 204

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include the additional
websites listed as Schedule "A" to this order; and

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its internet search engines the websites listed in
Schedule "A to this order, including all subpages and subdirectories of those
www.robertfleminglawyers.com

- 54 54
Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 69 of 143

websites, until the conclusion of the trial of this action or further order of this
court.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

Sign
re of lawyer for the plaintiffs
Jo Zeljkovich

By the Court.

www.robertfleminglawyers.com

- 55 - 55 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 70 of 143

Schedule A
http://www.ethernetdatahighwayplus.corn
http://www,datalink-gw1000.com

www.robeffleminglawyers.com

- 57 - 57 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 71 of 143

SuPREME COURT
BRITISH COLUMBIA
OV
ANCOUVER REGISTRY

No. S112421
Vancouver Registry

JUN 0 4 1D15
I \I THE SUPREME COURT OF BRITISH COLUMBIA

EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

E OF 11

)

)
)
)

litAte,5o(

, the 1 14day of
(

June 2015

Co LA (Z-T

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT;
1.

The June 13, 2014 order made in this action be varied to include the additional
websites listed as Schedule "A" to this order; and

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its internet search engines the websites listed in
Schedule "A to this order, including all subpages and subdirectories of those
wwvv.robertfleminglawyers.com

- 58 - 58 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 72 of 143

websites, until the conclusion of the trial of this action or further order of this
court.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

Signatvre-4Sf lawyer for the plaintiffs
John Zeljkovich

Registrar

www.robertfleminglawyers.com

- 59 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 73 of 143

Schedule A
www.qateway-owl 000dhpl.com
www.datalink-gw1000abeip.corn

www.robertfleminglawyers.com

- 99 - 99 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 74 of 143
SUPREME COURT
OF BRITISH COLUMBIA
VANCOUVER REGISTRY

JUL 0 B 2015

No. S112421
Vancouver Registry

. ENT p60

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

)
-1.+C'
) -I\ Cc-Ir.c>f= 1
"-

)
)

Fr (40-41

the 3

day of

July 2015
)
)

)
)

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include the additional
websites listed as Schedule "A" to this order; and

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its internet search engines the websites listed in
Schedule "A" to this order, including all subpages and subdirectories of those
www.robertilerninglawyers.com

- 100 - 100 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 75 of 143

websites, until the conclusion of the trial of this action or further order of this
court.
THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

Signatut df1awyer for the p aintiffs
John eljkovich

By the Court.

Registrar

www.robertfleminglawyers.com

-

- 101
- 101 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 76 of 143

Schedule A
www.datalink-qw1000-abeip.com
https://ethernetiptodhplus.wordpress.com
www.ethernettodatahiqhwayplus.corn
www.datahighwayplustoethernet.corn

www.robertfleminglawyers.corn

- 103
- 103 Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 77 of 143

No. S112421
Vancouver Registry

;r1) 1.7 2015
4IN

D

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

)
) TAE= NOURABLE
-E-1-10
JUST-AGE
)

)
)
)

et‘A

(°1 , the ‘' day of
");
2015

)

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include the additional
websites listed as Schedule "A" to this order; and

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its internet search engines the websites listed in
Schedule "A" to this order, including all subpages and subdirectories of those
www.robertfleminglawyers.com

- 104
- 104 Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 78 of 143

websites, until the conclusion of the trial of this action or further order of this
court.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

SignaturOlawyer for the plaintiffs
John Zeljkoyich

By the Court.

www.robertfleminglawyers.corn

- 105 - 105 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 79 of 143

Schedule A
www.datalinkqw1000abeip.com
https://plus.google.cam/+Ethernetallenbradleydhplus
https://kinja.com/datalinkgw1000
https://datalinkgw1000.wordpress.corn

www.robertfleminglawyers.com

- 111 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 80 of 143

'",

V1
11:1(A OiVi*

No. S112421
Vancouver Registry

HE SUPREME COURT OF BRITISH COLUMBIA

EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

)
)
)
)
)

)
A JUDGE OF THE COURT )
)
)
)

IllAV,SIVN , the l'Z'Mday of
OfinikAMI -2015.L/op L.,

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include the additional
website listed in Schedule "A" to this order;

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its Internet search engines the websites listed
in Schedule "A" to this order, including all subpages and subdirectories of those

www.robertfleminglawyers.com

- 112
- 112 Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 81 of 143

websites, until the conclusion of the trial of this action or further order of this
court; and
3.

The June 13, 2014 order made in this action be varied to include a term that
within 14 days of the date of this order, Google Inc. cease indexing or referencing
in search results on its internet search engines the URLs listed in Schedule "B" to
this order until the conclusion of the trial of this action or further order of this
court.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

Signatwe of lawyer for the plaintiffs
JohneZeljkovich

By the Court.

Registrar

www.robertfleminglawyers.com

- 113 - 113 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 82 of 143

Schedule A
1. http://www.ethernet-datahighwayplus.com

www.robertfleminglawyers,com

- 114 - 114 Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 83 of 143

Schedule B
1. httpillwww.pccweb.com/wp-content/uploads/2015/08/C Data Link Technologies.pdf;
2. http://www.modbus.org/viewdevicephp?id=335;
3. http://www.manualslib.com/manual/665918/11i-Datalink-Gw1000.html;
4. http://www.automation .com/product-showcase/gw1000-abeip-allen-bradly-data-highway-plus-converter;
5. http://datalinkgw1000.kinja.com/gw1000-dhpe-ethernet-df1-dh-1721122330;
6. httpl/www.iebmedia.com/index,php?id=10610&parentid=52&themeid=222&hpid=4&
showdetail=true&bb=1;
7. http://www.emobility24.eu/index. ph p?id=10610&parentid=52&themeid=222&h pid=4&
showdetail=true&bb=1;
8. http://www.manta.com/c/mx2zsrq/datalink-technologies-gateways-inc;
9. http://www.manta.com/c/mx4dg23/data lin k-technolog ies-gateways;
10. http://www.manta.com/cp/mx450tw/555112b2bc36f6db05ded5bf/datalink-_gw1000dhp1-df1-to-data-highway-plus-dh-conyerter;
11. https://fr-fr.facebook.com/datalinkqw1000abeip/;
12. https://www.facebook.com!permalink.php?id=779277212121133&story fbid=782111
681837686;
13. https://vi-vn.facebook.com/datalinkqw1000abeip/; and
14. https://www.linkedin.com/company/datalink-technologies-group-inc.

www.robertfleminglawyers.com

- 116 - 116
Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 84 of 143

No. S112421
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETVVEENi.
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATA.L1NK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

)
) Pi

65-7 , the L. ---' day of
N
201
-6

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include the additional
website listed in Schedule "A" to this order;

2.

Within 14 days of the date of this order, Google Inc. cease indexing or
referencing in search results on its internet search engines the websites listed in
Schedule "A" to this order, including all subpages and subdirectories of those
www.robertfleminglawyers.com

- 117 - 117
Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 85 of 143

websites, until the conclusion of the trial of this action or further order of this
court; and
3.

The June 13, 2014 order made in this action be varied to include a term that
within 14 days of the date of this order, Google Inc. cease indexing or referencing
in search results on its Internet search engines the URLs listed in Schedule "B" to
this order until the conclusion of the trial of this action or further order of this
court.

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

I

r

Signatufe'of lawyer for the plaintiffs
Joh.n/Zeljkovich

By the Court.

Registrar

wwvv.robertfleminglawyers.com

- 118
118
Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 86 of 143

Schedule A
1. http://wwiv.datalinkcontrollers.datatechqateways.corn/
2. http://www.ethemetip-datahighwayplus.com/

www.robertfleminglawyers.com

-119- 119
Case 5:17-cv-04207-NC Document 1- Filed 07/24/17 Page 87 of 143

1. http://516493715498262299.weeblv.com/about.html
2. http://datalinkow1000.kinIacom
3. http://datalinkow1000.kinjacom/gw1000-abeip-1720388351
4. http://manual.zz.com/doc/2989233/gw1000-user-manual
5. http://wwiv.articlesbase.com/industrial-articles/datalink-technolooies-gw1000-abeiplow-cost-df1-ethernet-ethernetip-converter-to-allen-brad ley-data-highway-plus-d h-dh485-7210304. html
6. http://www.artipot.com/articles/1853538/datalink-ow1000-df1-ab-ethernet-ethemet-ipconverter-to-allen-bradleyss-datahighway-plus-dh-dh-485.htm
7. http://www.docfoc.com/gw1000-abeip
8. http://wvvw.europages.co.uk/DATALINK-TECHNOLOGIESGW1000ABEIP/00000004659162-460217001.html
9. http://www.iebmedia.com/index.php?id=10947&parentid=52&themeid=226&hid=576
62&hpic1=4&showdetail=true&sup=57662&bb=&nbb=
10. http://www.manta.com/cp/mx450tw/5551180059146d3f665d05fb/datalink-gw1000abeip-ethernet-ip-to-data-highway-plus-converter
11. http://wwvv.mfgpapes.com/company/Datalink-Technolopies-in-WASHIN GTON-USA10168500/
12. http://www.sooperarticles.com/shopping-articles/electronics-articles/datalink-owl 000altemative-allen-bradleys-1784-u2dhp-dh-interiace-card-1394191.html
13. httos://www.facebook.com/datalinkow1000abeipi
14. https://www.facebook.com/datalinkgw1000abeip/posts/782453511803503
15. https://www.facebook.com/datalinkqw1000abeip/posts/889923767723143

vvww.robertfleminglawyers.corn

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 88 of 143
SUPREME COURT
IA
OF BRITISH
REGI ST RY
VANCOUVERCOLUMB

AUG 2 4 2016

No. S112421
Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:
EQUUSTEK SOLUTIONS INC.,
ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC,
LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER,
IGOR CHEIFOT aka JOLIO FERNANDEZ,
ALEXANDER CHEIFOT aka RANDY SCHTOLZ,
FRANK GEIGER aka FELIX FERNANDEZ, and
ALFONSO DOE
DEFENDANTS

ORDER MADE AFTER APPLICATION

BEFORE

)

1 OUDGE OF "THE- (cuct

)

Nalrodai , the _a_ day of

)

2016

ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;

THIS COURT ORDERS THAT:
1.

The June 13, 2014 order made in this action be varied to include a term that
within 14 days of the date of this order, Google Inc. cease indexing or referencing
in search results on its internet search engines the URLs listed in Schedule "A" to
this order until the conclusion of the trial of this action or further order of this
court.
BY THE COURT
ENDORSEMENTS ATTACHED
REGISTRAR

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 89 of 143

THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT
TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY
CONSENT:

re of lawyer for the plaintiffs
Sig
John Zeljkovich

www.robertfleminglawyers.com

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 90 of 143

Schedule A

1. http://www.cesco.com/b2c/product/617546
2. http://www.iebmedia.com/wireless.php?id=11042&parentid=52&themeid=225
&hid=57662&hpid=4&showdetail=true&sup=57662&bb=&nbb=
3. https://www.facebook.com/datalinkgw1000abeip/posts/782111681837686
4. http://datalinkgw1000.kinja.com/datalink-gw1000-multi-protocol-converterinterfacing-n-1723096976
5. http://www.articlesbase.com/industrial-articles/datalink-technologies-gw1000abeip-low-cost-df1-ethemet-ethernetip-converter-to-allen-bradley-datahighway-plus-dh-dh-485-7210304.html

www.robertfleminglawyers.com

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 91 of 143

EXHIBIT B

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 92 of 143

SUPREME COURT OF CANADA
CITATION: Google Inc. v. Equustek Solutions Inc.,
2017 SCC 34

APPEAL HEARD: December 6, 2016
JUDGMENT RENDERED: June 28, 2017
DOCKET: 36602

BETWEEN:
Google Inc.
Appellant
and
Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc.
Respondents
- and Attorney General of Canada, Attorney General of Ontario, Canadian Civil
Liberties Association, OpenMedia Engagement Network, Reporters Committee
for Freedom of the Press, American Society of News Editors, Association of
Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones &
Company, Inc., First Amendment Coalition, First Look Media Works, Inc., New
England First Amendment Coalition, News Media Alliance (formerly known as
Newspaper Association of America), AOL Inc., California Newspaper Publishers
Association, The Associated Press, The Investigative Reporting Workshop at
American University, Online News Association, Society of Professional
Journalists, Human Rights Watch, ARTICLE 19, Open Net (Korea), Software
Freedom Law Centre, Center for Technology and Society, Wikimedia
Foundation, British Columbia Civil Liberties Association, Electronic Frontier
Foundation, International Federation of the Phonographic Industry, Music
Canada, Canadian Publishers’ Council, Association of Canadian Publishers,
International Confederation of Societies of Authors and Composers,
International Confederation of Music Publishers, Worldwide Independent
Network and International Federation of Film Producers Associations
Interveners

CORAM: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté,
Brown and Rowe JJ.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 93 of 143

R EASONS FOR JUDGMENT:
(paras. 1 to 54)

Abella J. (McLachlin C.J. and Moldaver, Karakatsanis,
Wagner, Gascon and Brown JJ. concurring)

JOINT DISSENTING REASONS :
(paras. 55 to 82)

Côté and Rowe JJ.

N OTE: This document is subject to editorial revision before its reproduction in final
form in the Canada Supreme Court Reports.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 94 of 143

GOOGLE INC.

v. EQUUSTEK SOLUTIONS INC.

Google Inc.

Appellant

v.

Equustek Solutions Inc.,
Robert Angus and Clarma Enterprises Inc.

Respondents

and

Attorney General of Canada, Attorney General of Ontario,
Canadian Civil Liberties Association, OpenMedia
Engagement Network, Reporters Committee for
Freedom of the Press, American Society of News Editors,
Association of Alternative Newsmedia, The Center for
Investigative Reporting, Dow Jones & Company, Inc.,
First Amendment Coalition, First Look Media Works, Inc.,
New England First Amendment Coalition, News Media
Alliance (formerly known as Newspaper Association of America),
AOL Inc., California Newspaper Publishers Association,
The Associated Press, The Investigative Reporting
Workshop at American University, Online News Association,
Society of Professional Journalists, Human Rights Watch,
ARTICLE 19, Open Net (Korea), Software Freedom Law Centre,
Center for Technology and Society, Wikimedia Foundation,
British Columbia Civil Liberties Association,
Electronic Frontier Foundation, International Federation
of the Phonographic Industry, Music Canada,
Canadian Publishers’ Council, Association of Canadian Publishers,
International Confederation of Societies of Authors and Composers,
International Confederation of Music Publishers,
Worldwide Independent Network and International
Federation of Film Producers Associations
Interveners

Indexed as: Google Inc. v. Equustek Solutions Inc.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 95 of 143

2017 SCC 34

File No.: 36602.

2016: December 6; 2017: June 28.

Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté,
Brown and Rowe JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Injunctions — Interlocutory injunction — Non-party — Technology
company bringing action against distributor for unlawful use and sale of its
intellectual property through Internet — Company granted interlocutory injunction
against Google, a non-party to underlying action, to cease indexing or referencing
certain search results on its Internet search engine — Whether Google can be
ordered, pending trial of action, to globally de-index websites of distributor which, in
breach of several court orders, is using those websites to unlawfully sell intellectual
property of another company — Whether Supreme Court of British Columbia had
jurisdiction to grant injunction with extraterritorial effect — Whether, if it did, it was
just and equitable to do so.

E is a small technology company in British Columbia that launched an
action against D. E claimed that D, while acting as a distributor of E’s products,
began to re-label one of the products and pass it off as its own. D also acquired

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 96 of 143

confidential information and trade secrets belonging to E, using them to design and
manufacture a competing product. D filed statements of defence disputing E’s claims,
but eventually abandoned the proceedings and left the province. Some of D’s
statements of defence were subsequently struck.

Despite court orders prohibiting the sale of inventory and the use of E’s
intellectual property, D continues to carry on its business from an unknown location,
selling its impugned product on its websites to customers all over the world. E
approached Google and requested that it de-index D’s websites. Google refused. E
then brought court proceedings, seeking an order requiring Google to do so. Google
asked E to obtain a court order prohibiting D from carrying on business on the
Internet saying it would comply with such an order by removing specific webpages.

An injunction was issued by the Supreme Court of British Columbia
ordering D to cease operating or carrying on business through any website. Between
December 2012 and January 2013, Google advised E that it had de-indexed 345
specific webpages associated with D. It did not, however, de-index all of D’s
websites. De-indexing webpages but not entire websites proved to be ineffective since
D simply moved the objectionable content to new pages within its websites,
circumventing the court orders. Moreover, Google had limited the de-indexing to
searches conducted on google.ca. E therefore obtained an interlocutory injunction to
enjoin Google from displaying any part of D’s websites on any of its search results
worldwide. The Court of Appeal for British Columbia dismissed Google’s appeal.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 97 of 143

Held (Côté and Rowe JJ. dissenting): The appeal is dismissed and the
worldwide interlocutory injunction against Google is upheld.

Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon and Brown JJ.: The issue is whether Google can be ordered, pending a trial,
to globally de-index D’s websites which, in breach of several court orders, is using
those websites to unlawfully sell the intellectual property of another company.

The decision to grant an interlocutory injunction is a discretionary one
and entitled to a high degree of deference. Interlocutory injunctions are equitable
remedies that seek to ensure that the subject matter of the litigation will be preserved
so that effective relief will be available when the case is ultimately heard on the
merits. Their character as “interlocutory” is not dependent on their duration pending
trial. Ultimately, the question is whether granting the injunction is just and equitable
in the circumstances of the case.

The test for determining whether the court should exercise its discretion
to grant an interlocutory injunction against Google has been met in this case: there is
a serious issue to be tried; E is suffering irreparable harm as a result of D’s ongoing
sale of its competing product through the Internet; and the balance of convenience is
in favour of granting the order sought.

Google does not dispute that there is a serious claim, or that E is suffering
irreparable harm which it is inadvertently facilitating through its search engine. Nor

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 98 of 143

does it suggest that it would be inconvenienced in any material way, or would incur
any significant expense, in de-indexing D’s websites. Its arguments are that the
injunction is not necessary to prevent irreparable harm to E and is not effective; that
as a non-party it should be immune from the injunction; that there is no necessity for
the extraterritorial reach of the order; and that there are freedom of expression
concerns that should have tipped the balance against granting the order.

Injunctive relief can be ordered against someone who is not a party to the
underlying lawsuit. When non-parties are so involved in the wrongful acts of others
that they facilitate the harm, even if they themselves are not guilty of wrongdoing,
they can be subject to interlocutory injunctions. It is common ground that D was
unable to carry on business in a commercially viable way without its websites
appearing on Google. The injunction in this case flows from the necessity of Google’s
assistance to prevent the facilitation of D’s ability to defy court orders and do
irreparable harm to E. Without the injunctive relief, it was clear that Google would
continue to facilitate that ongoing harm.

Where it is necessary to ensure the injunction’s effectiveness, a court can
grant an injunction enjoining conduct anywhere in the world. The problem in this
case is occurring online and globally. The Internet has no borders — its natural
habitat is global. The only way to ensure that the interlocutory injunction attained its
objective was to have it apply where Google operates — globally. If the injunction
were restricted to Canada alone or to google.ca, the remedy would be deprived of its

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 99 of 143

intended ability to prevent irreparable harm, since purchasers outside Canada could
easily continue purchasing from D’s websites, and Canadian purchasers could find
D’s websites even if those websites were de-indexed on google.ca.

Google’s argument that a global injunction violates international comity
because it is possible that the order could not have been obtained in a foreign
jurisdiction, or that to comply with it would result in Google violating the laws of that
jurisdiction, is theoretical. If Google has evidence that complying with such an
injunction would require it to violate the laws of another jurisdiction, including
interfering with freedom of expression, it is always free to apply to the British
Columbia courts to vary the interlocutory order accordingly. To date, Google has
made no such application. In the absence of an evidentiary foundation, and given
Google’s right to seek a rectifying order, it is not equitable to deny E the
extraterritorial scope it needs to make the remedy effective, or even to put the onus on
it to demonstrate, country by country, where such an order is legally permissible.

D and its representatives have ignored all previous court orders made
against them, have left British Columbia, and continue to operate their business from
unknown locations outside Canada. E has made efforts to locate D with limited
success. D is only able to survive — at the expense of E’s survival — on Google’s
search engine which directs potential customers to D’s websites. This makes Google
the determinative player in allowing the harm to occur. On balance, since the
world-wide injunction is the only effective way to mitigate the harm to E pending the

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 100 of 143

trial, the only way, in fact, to preserve E itself pending the resolution of the
underlying litigation, and since any countervailing harm to Google is minimal to
non-existent, the interlocutory injunction should be upheld.

Per Côté and Rowe JJ. (dissenting): While the court had jurisdiction to
issue the injunctive order against Google, it should have refrained from doing so.
Numerous factors affecting the grant of an injunction strongly favour judicial restraint
in this case.

First, the Google Order in effect amounts to a final determination of the
action because it removes any potential benefit from proceeding to trial. In its original
underlying claim, E sought injunctions modifying the way D carries out its website
business. E has been given more injunctive relief than it sought in its originating
claim, including requiring D to cease website business altogether. Little incentive
remains for E to return to court to seek a lesser injunctive remedy. This is evidenced
by E’s choice to not seek default judgment during the roughly five years which have
passed since it was given leave to do so. The Google Order provides E with more
equitable relief than it sought against D and gives E an additional remedy that is final
in nature. The order against Google, while interlocutory in form, is final in effect. The
test for interlocutory injunctions does not apply to an order that is effectively final. In
these circumstances, an extensive review of the merits of this case was therefore
required but was not carried out by the court below, contrary to caselaw. The Google
Order does not meet the test for a permanent injunction. Although E’s claims were

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 101 of 143

supported by a good prima facie case, it was not established that D designed and sold
counterfeit versions of E’s product, or that this resulted in trademark infringement
and unlawful appropriation of trade secrets.

Second, Google is a non-party to the proceedings between E and D. E
alleged that Google’s search engine was facilitating D’s ongoing breach by leading
customers to D’s websites. However, the prior order that required D to cease carrying
on business through any website was breached as soon as D established a website to
conduct its business, regardless of how visible that website might be through Google
searches. Google did not aid or abet the doing of the prohibited act.

Third, the Google Order is mandatory and requires ongoing modification
and supervision because D is launching new websites to replace de-listed ones.
Courts

should

avoid

granting

injunctions

that

require

such

cumbersome

court-supervised updating.

Furthermore, the Google Order has not been shown to be effective in
making D cease operating or carrying on business through any website. Moreover, the
Google Order does not assist E in modifying D’s websites, as E sought in its
originating claim for injunctive relief. The most that can be said is the Google Order
might reduce the harm to E. But it has not been shown that the Google Order is
effective in doing so. D’s websites can be found using other search engines, links
from other sites, bookmarks, email, social media, printed material, word-of-mouth, or

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 102 of 143

other indirect means. D’s websites are open for business on the Internet whether
Google searches list them or not.

Finally, there are alternative remedies available to E. E sought a
world-wide Mareva injunction to freeze D’s assets in France, but the Court of Appeal
for British Columbia urged E to pursue a remedy in French courts. There is no reason
why E cannot do what the Court of Appeal urged it to do. E could also pursue
injunctive relief against the ISP providers. In addition, E could initiate contempt
proceedings in France or in any other jurisdiction with a link to the illegal websites.
Therefore, the Google Order ought not to have been granted.

Cases Cited

By Abella J.

Applied: RJR — MacDonald Inc. v. Canada (Attorney General), [1994]
1 S.C.R. 311; MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048; considered:
Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133;
Mareva Compania Naviera SA v. International Bulkcarriers SA, [1975] 2 Lloyd’s
Rep. 509; referred to: Manitoba (Attorney General) v. Metropolitan Stores Ltd.,
[1987] 1 S.C.R. 110; Seaward v. Paterson, [1897] 1 Ch. 545; York University v. Bell
Canada Enterprises (2009), 311 D.L.R. (4th) 755; Cartier International AG v. British
Sky Broadcasting Ltd., [2016] EWCA Civ 658, [2017] 1 All E.R. 700;
Warner-Lambert Co. v. Actavis Group PTC EHF, [2015] EWHC 485 (Pat.), 144

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 103 of 143

B.M.L.R. 194; Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2;
Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., 2007
SCC 20, [2007] 1 S.C.R. 867; Mooney v. Orr (1994), 98 B.C.L.R. (2d) 318; Babanaft
International Co. S.A. v. Bassatne, [1990] 1 Ch. 13; Republic of Haiti v. Duvalier,
[1990] 1 Q.B. 202; Derby & Co. v. Weldon, [1990] 1 Ch. 48; Derby & Co. v. Weldon
(Nos. 3 and 4), [1990] 1 Ch. 65.

By Côté and Rowe JJ. (dissenting)

RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R.
311; Fourie v. Le Roux, [2007] UKHL 1, [2007] 1 All E.R. 1087; Guaranty Trust Co.
of New York v. Hannay & Co., [1915] 2 K.B. 536; Cartier International AG v. British
Sky Broadcasting Ltd., 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949; Mercedes
Benz A.G. v. Leiduck, [1996] 1 A.C. 284; John Deere Ltd. v. Firdale Farms Ltd.
(1987), 45 D.L.R. (4th) 641; Parkin v. Thorold (1852), 16 Beav. 59, 51 E.R. 698;
Schooff v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323
D.L.R. (4th) 680; McIsaac v. Healthy Body Services Inc., 2009 BCSC 1716; Plouffe
v. Roy, 2007 CanLII 37693; Spiller v. Brown (1973), 43 D.L.R. (3d) 140; 1711811
Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th)
643; MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048; Seaward v. Paterson,
[1897] 1 Ch. 545; Acrow (Automation) Ltd. v. Rex Chainbelt Inc., [1971] 1 W.L.R.
1676; Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C.
133; National Commercial Bank of Jamaica Ltd. v. Olint Corp., [2009] 1 W.L.R.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 104 of 143

1405; Redland Bricks Ltd. v. Morris, [1970] A.C. 652; Co-operative Insurance
Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1; Attorney General v.
Observer Ltd., [1990] 1 A.C. 109.

Statutes and Regulations Cited

Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998).
Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36.
Law and Equity Act, R.S.B.C. 1996, c. 253, s. 39(1).

Authors Cited

Bean, David, Andrew Burns and Isabel Parry. Injunctions, 11th ed. London: Sweet &
Maxwell, 2012.
Berryman, Jeffrey. The Law of Equitable Remedies, 2nd ed. Toronto: Irwin Law,
2013.
Black, Vaughan, and Edward Babin. “Mareva Injunctions in Canada: Territorial
Aspects” (1997), 28 Can. Bus. L.J. 430.
Fraser, Peter G., John W. Horn and Susan A. Griffin. The Conduct of Civil Litigation
in British Columbia, 2nd ed. Markham, Ont.: LexisNexis, 2007 (loose-leaf
updated December 2016, release 24).
Pitel, Stephen G. A., and Andrew Valentine. “The Evolution of the Extra-territorial
Mareva Injunction in Canada: Three Issues” (2006), 2 J. Priv. Int’l L. 339.
Riordan, Jaani. The Liability of Internet Intermediaries. Oxford: Oxford University
Press, 2016.
Sharpe, Robert J. Injunctions and Specific Performance, loose-leaf ed. Toronto:
Canada Law Book, 1992 (updated November 2016, release 25).

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 105 of 143

Spry, I. C. F. The Principles of Equitable Remedies: Specific Performance,
Injunctions, Rectification and Equitable Damages, 9th ed. Pyrmont, N.S.W.:
Lawbook, 2014.

APPEAL from a judgment of the British Columbia Court of Appeal
(Frankel, Groberman and Harris JJ.A.), 2015 BCCA 265, 75 B.C.L.R. (5th) 315, 373
B.C.A.C. 240, 641 W.A.C. 240, 39 B.L.R. (5th) 175, 71 C.P.C. (7th) 215, 135 C.P.R.
(4th) 173, 386 D.L.R. (4th) 224, [2015] 11 W.W.R. 45, [2015] B.C.J. No. 1193 (QL),
2015 CarswellBC 1590 (WL Can.), affirming a decision of Fenlon J., 2014 BCSC
1063, 63 B.C.L.R. (5th) 145, 28 B.L.R. (5th) 265, 374 D.L.R. (4th) 537, [2014] 10
W.W.R. 652, [2014] B.C.J. No. 1190 (QL), 2014 CarswellBC 1694 (WL Can.),
granting an interlocutory injunction against Google. Appeal dismissed, Côté and
Rowe JJ. dissenting.

William C. McDowell, Marguerite F. Ethier and Scott M. J. Rollwagen,
for the appellant.

Robbie Fleming and Michael Sobkin, for the respondents.

Jeffrey G. Johnston, for the intervener the Attorney General of Canada.

Sandra Nishikawa, John Corelli and Brent Kettles, for the intervener the
Attorney General of Ontario.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 106 of 143

Mathew

Good,

for

the

intervener

the

Canadian Civil Liberties

Association.

Cynthia Khoo, for the intervener the OpenMedia Engagement Network.

Written submissions only by Iris Fischer and Helen Richards, for the
interveners the Reporters Committee for Freedom of the Press, the American Society
of News Editors, the Association of Alternative Newsmedia, The Center for
Investigative Reporting, Dow Jones & Company, Inc., the First Amendment
Coalition, First Look Media Works, Inc., the New England First Amendment
Coalition, the News Media Alliance (formerly known as the Newspaper Association
of America), AOL Inc., the California Newspaper Publishers Association, The
Associated Press, The Investigative Reporting Workshop at American University, the
Online News Association and the Society of Professional Journalists.

Written submissions only by Paul Schabas and Kaley Pulfer, for the
interveners Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software
Freedom Law Centre and the Center for Technology and Society.

Written submissions only by David T. S. Fraser and Jane O’Neill, for the
intervener the Wikimedia Foundation.

Justin Safayeni and Carlo Di Carlo, for the intervener the British
Columbia Civil Liberties Association.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 107 of 143

David Wotherspoon and Daniel Byma, for the intervener the Electronic
Frontier Foundation.

Dan Glover and Miranda Lam, for the interveners the International
Federation of the Phonographic Industry, Music Canada, the Canadian Publishers’
Council, the Association of Canadian Publishers, the International Confederation of
Societies of Authors and Composers, the International Confederation of Music
Publishers and the Worldwide Independent Network.

Gavin MacKenzie and Brooke MacKenzie, for the intervener the
International Federation of Film Producers Associations.

The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner,
Gascon and Brown JJ. was delivered by
ABELLA J. —

[1]

The issue in this appeal is whether Google can be ordered, pending a trial,

to globally de-index the websites of a company which, in breach of several court
orders, is using those websites to unlawfully sell the intellectual property of another
company. The answer turns on classic interlocutory injunction jurisprudence: is there
a serious issue to be tried; would irreparable harm result if the injunction were not
granted; and does the balance of convenience favour granting or refusing the

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 108 of 143

injunction. Ultimately, the question is whether granting the injunction would be just
and equitable in all the circumstances of the case.

Background

[2]

Equustek Solutions Inc. is a small technology company in British

Columbia.

It

manufactures

networking

devices that allow complex industrial

equipment made by one manufacturer to communicate with complex industrial
equipment made by another manufacturer.

[3]

The underlying action between Equustek and the Datalink defendants

(Morgan Jack, Datalink Technology Gateways Inc., and Datalink Technologies
Gateways LLC – “Datalink”) was launched by Equustek on April 12, 2011. It
claimed that Datalink, while acting as a distributor of Equustek’s products, began to
re-label one of the products and pass it off as its own. Datalink also acquired
confidential information and trade secrets belonging to Equustek, using them to
design and manufacture a competing product, the GW1000. Any orders for
Equustek’s product were filled with the GW1000. When Equustek discovered this in
2011, it terminated the distribution agreement it had with Datalink and demanded that
Datalink delete all references to Equustek’s products and trademarks on its websites.

[4]
claims.

The Datalink defendants filed statements of defence disputing Equustek’s

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 109 of 143

[5]

On September 23, 2011, Leask J. granted an injunction ordering Datalink

to return to Equustek any source codes, board schematics, and any other
documentation it may have had in its possession that belonged to Equustek. The court
also prohibited Datalink from referring to Equustek or any of Equustek’s products on
its websites. It ordered Datalink to post a statement on its websites informing
customers that Datalink was no longer a distributor of Equustek products and
directing customers interested in Equustek’s products to Equustek’s website. In
addition, Datalink was ordered to give Equustek a list of customers who had ordered
an Equustek product from Datalink.

[6]

On March 21, 2012, Fenlon J. found that Datalink had not properly

complied with this order and directed it to produce a new customer list and make
certain changes to the notices on their websites.

[7]

Datalink abandoned the proceedings and left the jurisdiction without

producing any documents or complying with any of the orders. Some of Datalink’s
statements of defence were subsequently struck.

[8]

On July 26, 2012, Punnett J. granted a Mareva injunction freezing

Datalink’s worldwide assets, including its entire product inventory. He found that
Datalink had incorporated “a myriad of shell corporations in different jurisdictions”,
continued to sell the impugned product, reduced prices to attract more customers, and
was offering additional services that Equustek claimed disclosed more of its trade
secrets. He concluded that Equustek would suffer irreparable harm if the injunction

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 110 of 143

were not granted, and that, on the balance of convenience and due to a real risk of the
dissipation of assets, it was just and equitable to grant the injunction against Datalink.

[9]

On August 3, 2012, Fenlon J. granted another interlocutory injunction

prohibiting Datalink from dealing with broader classes of intellectual property,
including “any use of whole categories of documents and information that lie at the
heart of any business of a kind engaged in by both parties”. She noted that Equustek’s
“earnings ha[d] fallen drastically since [Datalink] began [its] impugned activities”
and concluded that “the effect of permitting [Datalink] to carry on [its] business
[would] also cause irreparable harm to [Equustek]”.

[10]

On September 26, 2012, Equustek brought an application to have

Datalink and its principal, Morgan Jack, found in contempt. No one appeared on
behalf of Datalink. Groves J. issued a warrant for Morgan Jack’s arrest. It remains
outstanding.

[11]

Despite the court orders prohibiting the sale of inventory and the use of

Equustek’s intellectual property, Datalink continues to carry on its business from an
unknown location, selling its impugned product on its websites to customers all over
the world.

[12]

Not knowing where Datalink or its suppliers were, and finding itself

unable to have the websites removed by the websites’ hosting companies, Equustek
approached Google in September 2012 and requested that it de-index the Datalink

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 111 of 143

websites. Google refused. Equustek then brought court proceedings seeking an order
requiring Google to do so.

[13]

When it was served with the application materials, Google asked

Equustek to obtain a court order prohibiting Datalink from carrying on business on
the Internet. Google told Equustek it would comply with such an order by removing
specific webpages. Pursuant to its internal policy, Google only voluntarily de-indexes
individual webpages, not entire websites. Equustek agreed to try this approach.

[14]

On December 13, 2012, Equustek appeared in court with Google. An

injunction was issued by Tindale J. ordering Datalink to “cease operating or carrying
on business through any website”. Between December 2012 and January 2013,
Google advised Equustek that it had de-indexed 345 specific webpages associated
with Datalink. It did not, however, de-index all of the Datalink websites.

[15]

Equustek soon discovered that de-indexing webpages but not entire

websites was ineffective since Datalink simply moved the objectionable content to
new pages within its websites, circumventing the court orders.
[16]

Google had limited the de-indexing to those searches that were conducted

on google.ca. Google’s search engine operates through dedicated websites all over the
world. The Internet search services are free, but Google earns money by selling
advertising space on the webpages that display search results. Internet users with
Canadian Internet Protocol addresses are directed to “google.ca” when performing

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 112 of 143

online searches. But users can also access different Google websites directed at other
countries by using the specific Uniform Resource Locator, or URL, for those sites.
That means that someone in Vancouver, for example, can access the Google search
engine as though he or she were in another country simply by typing in that country’s
Google URL. Potential Canadian customers could, as a result, find Datalink’s
websites even if they were blocked on google.ca. Given that the majority of the sales
of Datalink’s GW1000 were to purchasers outside of Canada, Google’s de-indexing
did not have the necessary protective effect.
[17]

Equustek therefore sought an interlocutory injunction to enjoin Google

from displaying any part of the Datalink websites on any of its search results
worldwide. Fenlon J. granted the order (374 D.L.R. (4th) 537 (B.C.S.C.)). The
operative part states:
Within 14 days of the date of this order, Google Inc. is to cease indexing
or referencing in search results on its internet search engines the
[Datalink] websites …, including all of the subpages and subdirectories
of the listed websites, until the conclusion of the trial of this action or
further order of this court. [Emphasis added]

[18]

Fenlon J. noted that Google controls between 70-75 percent of the global

searches on the Internet and that Datalink’s ability to sell its counterfeit product is, in
large part, contingent on customers being able to locate its websites through the use
of Google’s search engine. Only by preventing potential customers from accessing
the Datalink websites, could Equustek be protected. Otherwise, Datalink would be
able to continue selling its product online and the damages Equustek would suffer
would not be recoverable at the end of the lawsuit.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 113 of 143

[19]

Fenlon J. concluded that this irreparable harm was being facilitated

through Google’s search engine; that Equustek had no alternative but to require
Google to de-index the websites; that Google would not be inconvenienced; and that,
for the order to be effective, the Datalink websites had to be prevented from being
displayed on all of Google’s search results, not just google.ca. As she said:
On the record before me it appears that to be effective, even within
Canada, Google must block search results on all of its websites.
Furthermore, [Datalink’s] sales originate primarily in other countries, so
the Court’s process cannot be protected unless the injunction ensures that
searchers from any jurisdiction do not find [Datalink’s] websites. 1

[20]

The Court of Appeal of British Columbia dismissed Google’s appeal (386

D.L.R. (4th) 224). Groberman J.A. accepted Fenlon J.’s conclusion that she had in
personam jurisdiction over Google and could therefore make an order with
extraterritorial effect. He also agreed that courts of inherent jurisdiction could grant
equitable relief against non-parties. Since ordering an interlocutory injunction against
Google was the only practical way to prevent Datalink from flouting the court’s
several orders, and since there were no identifiable countervailing comity or freedom
of expression concerns that would prevent such an order from being granted, he
upheld the interlocutory injunction.

[21]

For the following reasons, I agree with Fenlon J. and Groberman J.A. that

the test for granting an interlocutory injunction against Google has been met in this
case.

1

Para. 148.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 114 of 143

Analysis

[22]

The decision to grant an interlocutory injunction is a discretionary one

and entitled to a high degree of deference (Manitoba (Attorney General) v.
Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 155-56). In this case, I see no
reason to interfere.

[23]

Injunctions are equitable remedies. “The powers of courts with equitable

jurisdiction to grant injunctions are, subject to any relevant statutory restrictions,
unlimited” (Ian Spry, The Principles of Equitable Remedies (9th ed. 2014), at p. 333).
Robert Sharpe notes that “[t]he injunction is a flexible and drastic remedy.
Injunctions are not restricted to any area of substantive law and are readily
enforceable through the court’s contempt power” (Injunctions and Specific
Performance (loose-leaf ed.), at para. 2.10).

[24]

An interlocutory injunction is normally enforceable until trial or some

other determination of the action. Interlocutory injunctions seek to ensure that the
subject matter of the litigation will be “preserved” so that effective relief will be
available when the case is ultimately heard on the merits (Jeffrey Berryman, The Law
of Equitable Remedies (2nd ed. 2013), at pp. 24-25). Their character as
“interlocutory” is not dependent on their duration pending trial.

[25]

RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R.

311, sets out a three-part test for determining whether a court should exercise its

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 115 of 143

discretion to grant an interlocutory injunction: is there a serious issue to be tried;
would the person applying for the injunction suffer irreparable harm if the injunction
were not granted; and is the balance of convenience in favour of granting the
interlocutory injunction or denying it. The fundamental question is whether the
granting of an injunction is just and equitable in all of the circumstances of the case.
This will necessarily be context-specific.

[26]

Google does not dispute that there is a serious claim. Nor does it dispute

that Equustek is suffering irreparable harm as a result of Datalink’s ongoing sale of
the GW1000 through the Internet. And it acknowledges, as Fenlon J. found, that it
inadvertently facilitates the harm through its search engine which leads purchasers
directly to the Datalink websites.

[27]

Google argues, however, that the injunction issued against it is not

necessary to prevent that irreparable harm, and that it is not effective in so doing.
Moreover, it argues that as a non-party, it should be immune from the injunction. As
for the balance of convenience, it challenges the propriety and necessity of the
extraterritorial reach of such an order, and raises freedom of expression concerns that
it says should have tipped the balance against granting the order. These arguments go
both to whether the Supreme Court of British Columbia had jurisdiction to grant the
injunction and whether, if it did, it was just and equitable to do so in this case.

[28]

Google’s first argument is, in essence, that non-parties cannot be the

subject of an interlocutory injunction. With respect, this is contrary to the

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 116 of 143

jurisprudence. Not only can injunctive relief be ordered against someone who is not a
party to the underlying lawsuit, the contours of the test are not changed. As this Court
said in MacMillan Bloedel Ltd. v. Simpson [1996] 2 S.C.R. 1048, injunctions may be
issued ‘“in all cases in which it appears to the court to be just or convenient that the
order should be made . . . on terms and conditions the court thinks just”’ (para. 15,
citing s. 36 of the Law and Equity Act, R.S.B.C. 1979, c. 224). MacMillan Bloedel
involved a logging company seeking to restrain protesters from blocking roads. The
company obtained an interlocutory injunction prohibiting not only specifically named
individuals, but also “John Doe, Jane Doe and Persons Unknown” and “all persons
having notice of th[e] order” from engaging in conduct which interfered with its
operations at specific locations. In upholding the injunction, McLachlin J. noted that
[i]t may be confidently asserted . . . that both English and Canadian
authorities support the view that non-parties are bound by injunctions: if
non-parties violate injunctions, they are subject to conviction and
punishment for contempt of court. The courts have jurisdiction to grant
interim injunctions which all people, on pain of contempt, must obey.
[Emphasis added; para. 31]
See also Berryman, at pp. 57-60; Sharpe, at paras. 6.260 to 6.265.

[29]

In other words, where a non-party violates a court order, there is a

principled basis for treating the non-party as if it had been bound by the order. The
non-party’s obligation arises “not because [it] is bound by the injunction by being a
party to the cause, but because [it] is conducting [itself] so as to obstruct the course of
justice” (MacMillan Bloedel, at para. 27, quoting Seaward v. Paterson, [1897] 1 Ch.
545 (C.A.), at p. 555).

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 117 of 143

[30]

The pragmatism and necessity of such an approach was concisely

explained by Fenlon J. in the case before us when she offered the following example:
. . . a non-party corporation that warehouses and ships goods for a
defendant manufacturing company might be ordered on an interim
injunction to freeze the defendants’ goods and refrain from shipping
them. That injunction could affect orders received from customers around
the world. Could it sensibly be argued that the Court could not grant the
injunction because it would have effects worldwide? The impact of an
injunction on strangers to the suit or the order itself is a valid
consideration in deciding whether to exercise the Court’s jurisdiction to
grant an injunction. It does not, however, affect the Court’s authority to
make such an order.2

[31]

Norwich orders are analogous and can also be used to compel non-parties

to disclose information or documents in their possession required by a claimant
(Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133
(H.L.), at p. 175). Norwich orders have increasingly been used in the online context
by plaintiffs who allege that they are being anonymously defamed or defrauded and
seek orders against Internet service providers to disclose the identity of the
perpetrator (York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755
(Ont. S.C.J.)).

Norwich disclosure may be ordered against non-parties who are not

themselves guilty of wrongdoing, but who are so involved in the wrongful acts of
others that they facilitate the harm. In Norwich, this was characterized as a duty to
assist the person wronged (p. 175; Cartier International AG v. British Sky
Broadcasting Ltd., [2017], 1 All E.R. 700 (C.A.), at para. 53). Norwich supplies a
principled

2

Para. 147.

rationale

for

granting injunctions against non-parties who

facilitate

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 118 of 143

wrongdoing (see Cartier, at paras. 51-55; and Warner-Lambert Co. v. Actavis Group
PTC EHF, 144 B.M.L.R. 194 (Ch.)).

[32]

This approach was applied in Cartier, where the Court of Appeal of

England and Wales held that injunctive relief could be awarded against five non-party
Internet service providers who had not engaged in, and were not accused of any
wrongful act. The Internet service providers were ordered to block the ability of their
customers to access certain websites in order to avoid facilitating infringements of the
plaintiff’s

trademarks.

(See

also

Jaani Riordan,

The

Liability of

Internet

Intermediaries (2016), at pp. 412 and 498-99.)

[33]

The same logic underlies Mareva injunctions, which can also be issued

against non-parties. Mareva injunctions are used to freeze assets in order to prevent
their dissipation pending the conclusion of a trial or action (Mareva Compania
Naviera SA v. International Bulkcarriers SA, [1975] 2 Lloyd’s Rep. 509 (C.A.);
Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2). A Mareva injunction
that requires a defendant not to dissipate his or her assets sometimes requires the
assistance of a non-party, which in turn can result in an injunction against the nonparty if it is just and equitable to do so (Stephen Pitel and Andrew Valentine, “The
Evolution of the Extra-territorial Mareva Injunction in Canada: Three Issues” (2006),
2 J. Priv. Int’l L. 339, at p. 370; Vaughan Black and Edward Babin, “Mareva
Injunctions in Canada: Territorial Aspects” (1997), 28 Can. Bus. L.J. 430, at pp. 45253; Berryman, at pp. 128-31). Banks and other financial institutions have, as a result,

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 119 of 143

been bound by Mareva injunctions even when they are not a party to an underlying
action.

[34]

To preserve Equustek’s rights pending the outcome of the litigation,

Tindale J.’s order of December 13, 2012 required Datalink to cease carrying on
business through the Internet. Google had requested and participated in Equustek’s
obtaining this order, and offered to comply with it voluntarily. It is common ground
that Datalink was unable to carry on business in a commercially viable way unless its
websites were in Google’s search results. In the absence of de-indexing these
websites, as Fenlon J. specifically found, Google was facilitating Datalink’s breach of
Tindale J.’s order by enabling it to continue carrying on business through the Internet.
By the time Fenlon J. granted the injunction against Google, Google was aware that
in not de-indexing Datalink’s websites, it was facilitating Datalink’s ongoing breach
of Tindale J.’s order, the purpose of which was to prevent irreparable harm to
Equustek.

[35]

Much like a Norwich order or a Mareva injunction against a non-party,

the interlocutory injunction in this case flows from the necessity of Google’s
assistance in order to prevent the facilitation of Datalink’s ability to defy court orders
and do irreparable harm to Equustek. Without the injunctive relief, it was clear that
Google would continue to facilitate that ongoing harm.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 120 of 143

[36]

Google’s next argument is the impropriety of issuing an interlocutory

injunction

with

extraterritorial

effect.

But

this

too

contradicts

the

existing

jurisprudence.
[37]

The British Columbia courts in these proceedings concluded that because

Google carried on business in the province through its advertising and search
operations, this was sufficient to establish the existence of in personam and territorial
jurisdiction. Google does not challenge those findings. It challenges instead the global
reach of the resulting order. Google suggests that if any injunction is to be granted, it
should be limited to Canada (or google.ca) alone.

[38]

When a court has in personam jurisdiction, and where it is necessary to

ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s
conduct anywhere in the world. (See Impulsora Turistica de Occidente, S.A. de C.V.
v. Transat Tours Canada Inc., [2007] 1 S.C.R. 867, at para. 6; Berryman, at p. 20;
Pitel and Valentine, at p. 389; Sharpe, at para. 1.1190; Spry, at p. 37.) Mareva
injunctions have been granted with worldwide effect when it was found to be
necessary to ensure their effectiveness. (See Mooney v. Orr (1994), 98 B.C.L.R. (2d)
318 (S.C.); Berryman, at pp. 20 and 136; Babanaft International Co. S.A. v. Bassatne,
[1990] 1 Ch. 13 (C.A.); Republic of Haiti v. Duvalier, [1990] 1 Q.B. 202 (C.A.);
Derby & Co. v. Weldon, [1990] 1 Ch. 48 (C.A.); and Derby & Co. v. Weldon (Nos. 3
and 4) [1990] 1 Ch. 65 (C.A.); Sharpe, at paras. 1.1190 to 1.1220.)

[39]

Groberman J.A. pointed to the international support for this approach:

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 121 of 143

I note that the courts of many other jurisdictions have found it
necessary, in the context of orders against Internet abuses, to pronounce
orders that have international effects. Several such cases are cited in the
arguments of [International Federation of Film Producers Associations
and International Federation of the Phonographic Industry], including
APC v. Auchan Telecom, 11/60013, Judgment (28 November 2013)
(Tribunal de Grande Instance de Paris); McKeogh v. Doe (Irish High
Court, case no. 20121254P); Mosley v. Google, 11/07970, Judgment (6
November 2013) (Tribunal de Grande Instance de Paris); Max Mosley v.
Google (see “Case Law, Hamburg District Court: Max Mosley v. Google
Inc.
online:
Inform’s
Blog
https://inforrm.wordpress.com/
2014/02/05/case-law-hamburg-district-court-max-mosley-v-google-incgoogle-go-down-again-this-time-in-hamburg-dominic-crossley/) and ECJ
Google Spain SL, Google Inc. v. Agencia Española de Protección de
Datos, Mario Costeja González, C-131/12 [2014], CURIA.3

[40]

Fenlon J. explained why Equustek’s request that the order have

worldwide effect was necessary as follows:

The majority of GW1000 sales occur outside Canada. Thus, quite apart
from the practical problem of endless website iterations, the option
Google proposes is not equivalent to the order now sought which would
compel Google to remove the [Datalink] websites from all search results
generated by any of Google’s websites worldwide. I therefore conclude
that [Equustek does] not have an out-of-court remedy available to [it].4
...
. . . to be effective, even within Canada, Google must block search
results on all of its websites.5

As a result, to ensure that Google did not facilitate Datalink’s breach of court orders
whose purposes were to prevent irreparable harm to Equustek, she concluded that the
injunction had to have worldwide effect.
3

Para. 95.
Para. 76.
5
Para. 148.
4

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 122 of 143

[41]

I agree. The problem in this case is occurring online and globally. The

Internet has no borders — its natural habitat is global. The only way to ensure that the
interlocutory injunction attained its objective was to have it apply where Google
operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place
outside Canada. If the injunction were restricted to Canada alone or to google.ca, as
Google suggests it should have been, the remedy would be deprived of its intended
ability to prevent irreparable harm. Purchasers outside Canada could easily continue
purchasing from Datalink’s websites, and Canadian purchasers could easily find
Datalink’s websites even if those websites were de-indexed on google.ca. Google
would still be facilitating Datalink’s breach of the court’s order which had prohibited
it from carrying on business on the Internet. There is no equity in ordering an
interlocutory injunction which has no realistic prospect of preventing irreparable
harm.

[42]

The interlocutory injunction in this case is necessary to prevent the

irreparable harm that flows from Datalink carrying on business on the Internet, a
business which would be commercially impossible without Google’s facilitation. The
order targets Datalink’s websites — the list of which has been updated as Datalink
has sought to thwart the injunction — and prevents them from being displayed where
they do the most harm: on Google’s global search results.

[43]

Nor does the injunction’s worldwide effect tip the balance of convenience

in Google’s favour. The order does not require that Google take any steps around the

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 123 of 143

world, it requires it to take steps only where its search engine is controlled. This is
something Google has acknowledged it can do — and does — with relative ease.
There is therefore no harm to Google which can be placed on its “inconvenience”
scale arising from the global reach of the order.

[44]

Google’s argument that a global injunction violates international comity

because it is possible that the order could not have been obtained in a foreign
jurisdiction, or that to comply with it would result in Google violating the laws of that
jurisdiction is, with respect, theoretical. As Fenlon J. noted, “Google acknowledges
that most countries will likely recognize intellectual property rights and view the
selling of pirated products as a legal wrong”. 6

[45]

And while it is always important to pay respectful attention to freedom of

expression concerns, particularly when dealing with the core values of another
country, I do not see freedom of expression issues being engaged in any way that tips
the balance of convenience towards Google in this case. As Groberman J.A.
concluded:

In the case before us, there is no realistic assertion that the judge’s
order will offend the sensibilities of any other nation. It has not been
suggested that the order prohibiting the defendants from advertising
wares that violate the intellectual property rights of the plaintiffs offends
the core values of any nation. The order made against Google is a very
limited ancillary order designed to ensure that the plaintiffs’ core rights
are respected.

6

Para. 144.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 124 of 143

. . . the order in this case is an interlocutory one, and one that can be
varied by the court. In the unlikely event that any jurisdiction finds the
order offensive to its core values, an application could be made to the
court to modify the order so as to avoid the problem.7

[46]

If Google has evidence that complying with such an injunction would

require it to violate the laws of another jurisdiction, including interfering with
freedom of expression, it is always free to apply to the British Columbia courts to
vary the interlocutory order accordingly. To date, Google has made no such
application.

[47]

In the absence of an evidentiary foundation, and given Google’s right to

seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial
scope it needs to make the remedy effective, or even to put the onus on it to
demonstrate, country by country, where such an order is legally permissible. We are
dealing with the Internet after all, and the balance of convenience test has to take full
account of its inevitable extraterritorial reach when injunctive relief is being sought
against an entity like Google.

[48]

This is not an order to remove speech that, on its face, engages freedom

of expression values, it is an order to de-index websites that are in violation of several
court orders. We have not, to date, accepted that freedom of expression requires the
facilitation of the unlawful sale of goods.

7

Paras. 93-94.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 125 of 143

[49]

And I have trouble seeing how this interferes with what Google refers to

as its content neutral character. The injunction does not require Google to monitor
content on the Internet, nor is it a finding of any sort of liability against Google for
facilitating access to the impugned websites. As for the balance of convenience, the
only obligation the interlocutory injunction creates is for Google to de-index the
Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the
removal of individual URLs, which Google agreed to do voluntarily”. 8 Even if it
could be said that the injunction engages freedom of expression issues, this is far
outweighed by the need to prevent the irreparable harm that would result from
Google’s facilitating Datalink’s breach of court orders.

[50]

Google did not suggest that it would be inconvenienced in any material

way, or would incur any significant expense, in de-indexing the Datalink websites. It
acknowledges, fairly, that it can, and often does, exactly what is being asked of it in
this case, that is, alter search results. It does so to avoid generating links to child
pornography and websites containing “hate speech”. It also complies with notices it
receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112
Stat. 2680 (1998) to de-index content from its search results that allegedly infringes
copyright, and removes websites that are subject to court orders.

[51]

As for the argument that this will turn into a permanent injunction, the

length of an interlocutory injunction does not, by itself, convert its character from a

8

Para. 137.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 126 of 143

temporary to a permanent one. As previously noted, the order requires that the
injunction be in place “until the conclusion of the trial of this action or further order
of this court”. There is no reason not to take this order at face value. Where an
interlocutory injunction has been in place for an inordinate amount of time, it is
always open to a party to apply to have it varied or vacated. Google has brought no
such application.

[52]

Datalink and its representatives have ignored all previous court orders

made against them, have left British Columbia, and continue to operate their business
from unknown locations outside Canada. Equustek has made efforts to locate
Datalink with limited success. Datalink is only able to survive — at the expense of
Equustek’s survival — on Google’s search engine which directs potential customers
to its websites. In other words, Google is how Datalink has been able to continue
harming Equustek in defiance of several court orders.
[53]

This does not make Google liable for this harm. It does, however, make

Google the determinative player in allowing the harm to occur. On balance, therefore,
since the interlocutory injunction is the only effective way to mitigate the harm to
Equustek pending the resolution of the underlying litigation, the only way, in fact, to
preserve Equustek itself pending the resolution of the underlying litigation, and since
any countervailing harm to Google is minimal to non-existent, the interlocutory
injunction should be upheld.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 127 of 143

[54]

I would dismiss the appeal with costs in this Court and in the Court of

Appeal for British Columbia.

The following are the reasons delivered by
CÔTÉ AND ROWE JJ. —

[55]

Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc.

(“Equustek”) seek a novel form of equitable relief ― an effectively permanent
injunction, against an innocent third party, that requires court supervision, has not
been shown to be effective, and for which alternative remedies are available. Our
response calls for judicial restraint. While the court had jurisdiction to issue the June
13, 2014 order against Google Inc. (“Google Order”) (2014 BCSC 1063, 374 D.L.R.
(4th) 537, per Fenlon J.), in our view it should have refrained from doing so. The
authority to grant equitable remedies has always been constrained by doctrine and
practice. In our view, the Google Order slipped too easily from these constraints.

[56]

As we will explain, the Google Order is effectively final redress against a

non-party that has neither acted unlawfully, nor aided and abetted illegal action. The
test for interlocutory injunctions established in RJR ― MacDonald Inc. v. Canada
(Attorney General), [1994] 1 S.C.R. 311, does not apply to an order that is effectively
final, and the test for a permanent injunction has not been satisfied. The Google Order

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 128 of 143

is mandatory and requires court supervision. It has not been shown to be effective,
and there are alternative remedies available to Equustek.

I.

[57]

Judicial Restraint

The power of a court to grant injunctive relief is derived from that of the

Chancery courts of England (Fourie v. Le Roux, [2007] UKHL 1, [2007] 1 All E.R.
1087, at para. 30), and has been confirmed in British Columbia by the Law and
Equity Act, R.S.B.C. 1996, c. 253, s. 39(1):

39 (1) An injunction or an order in the nature of mandamus may be
granted or a receiver or receiver manager appointed by an
interlocutory order of the court in all cases in which it appears to the
court to be just or convenient that the order should be made.

[58]

In Fourie, Lord Scott explained that “provided the court has in personam

jurisdiction over the person against whom an injunction, whether interlocutory or
final, is sought, the court has jurisdiction, in the strict sense, to grant it” (para. 30).
However, simply because a court has the jurisdiction to grant an injunction does not
mean that it should. A court “will not according to its settled practice do so except in
a certain way and under certain circumstances” (Lord Scott, at para. 25, quoting from
Guaranty Trust Co. of New York v. Hannay & Co., [1915] 2 K.B. 536, at p. 563; see
also Cartier International AG v. British Sky Broadcasting Ltd., 2014 EWHC 3354
(Ch.), [2015] 1 All E.R. 949, at paras. 98-100). Professor Spry comes to similar

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 129 of 143

conclusions (I. C. F. Spry, The Principles of Equitable Remedies (9th ed. 2014), at p.
333):

The powers of courts with equitable jurisdiction to grant injunctions
are, subject to any relevant statutory restrictions, unlimited. Injunctions
are granted only when to do so accords with equitable principles, but this
restriction involves, not a defect of powers, but an adoption of doctrines
and practices that change in their application from time to time. [Footnote
omitted.]

[59]

The importance of appropriately modifying judicial restraint to meet the

needs of justice was summarized by Lord Nicholls in Mercedes Benz A.G. v. Leiduck,
[1996] 1 A.C. 284 (P.C.), at p. 308: “As circumstances in the world change, so must
the situations in which the courts may properly exercise their jurisdiction to grant
injunctions. The exercise of the jurisdiction must be principled, but the criterion is
injustice.”

[60]

Changes to “settled practice” must not overshoot the mark of avoiding

injustice. In our view, granting the Google Order requires changes to settled practice
that are not warranted in this case: neither the test for an interlocutory nor a
permanent injunction has been met; court supervision is required; the order has not
been shown to be effective; and alternative remedies are available.

II.

Factors Suggesting Restraint in This Case

A.

The Effects of the Google Order Are Final

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 130 of 143

[61]

In RJR ― MacDonald, this Court set out the test for interlocutory

injunctions ― a serious question to be tried, irreparable harm, and the balance of
convenience ― but also described an exception (at pp. 338-39):

Two exceptions apply to the general rule that a judge should not
engage in an extensive review of the merits. The first arises when the
result of the interlocutory motion will in effect amount to a final
determination of the action. This will be the case either when the right
which the applicant seeks to protect can only be exercised immediately or
not at all, or when the result of the application will impose such hardship
on one party as to remove any potential benefit from proceeding to trial.
...
The circumstances in which this exception will apply are rare. When it
does, a more extensive review of the merits of the case must be
undertaken. Then when the second and third stages of the test are
considered and applied the anticipated result on the merits should be
borne in mind. [Emphasis added.]

[62]

In our view, the Google Order “in effect amount[s] to a final

determination of the action” because it “remove[s] any potential benefit from
proceeding to trial”. In order to understand this conclusion, it is useful to review
Equustek’s underlying claim. Equustek sought, in its Further Amended Notice of
Civil Claim against Datalink, damages, declarations, and:

A temporary and permanent injunction restraining the Defendants from:
a. using the Plaintiffs’ trademarks and free-riding on the goodwill of
any Equustek products on any website;
b. making statements disparaging or in any way referring to the
Equustek products;

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 131 of 143

c. distributing the offending manuals and displaying images of the
Plaintiff’s products on any website; and
d. selling the GW1000 line of products which were created by the theft
of the Plaintiff’s trade secrets;
and obliging them to:
e. immediately disclose all hidden websites;
f.

display a page on all websites correcting [their] misrepresentations
about the source and continuing availability of the Equustek
products and directing customers to Equustek.

In short, Equustek sought injunctions modifying the way in which Datalink carries
out its website business, along with damages and declarations. On June 20, 2012,
Datalink’s response was struck and Equustek was given leave to apply for default
judgment. It has not done so. On December 13, 2012, Justice Tindale ordered that

[t]he Defendants Morgan Jack, Datalink Technologies Gateways Inc. and
Datalink Technologies Gateways LLC (the “Datalink Defendants”) cease
operating or carrying on business through any website, including those
contained in Schedule “A” and all associated pages, subpages and
subdirectories, and that these Defendants immediately take down all such
websites, until further order of this court. [“December 2012 Order”]
The December 2012 Order gives Equustek more than the injunctive relief it sought in
its originating claim. Rather than simply ordering the modification of Datalink
websites, the December 2012 Order requires the ceasing of website business
altogether. In our view, little incentive remains for Equustek to return to court to seek
a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 132 of 143

judgment during the roughly five years which have passed since it was given leave to
do so.

[63]

As for the Google Order, it provides Equustek with an additional remedy,

beyond the December 2012 Order and beyond what was sought in its original claim.
In our view, granting of the Google Order further erodes any remaining incentive for
Equustek to proceed with the underlying action. The effects of the Google Order are
final in nature. Respectfully, the pending litigation assumed by our colleague Abella
J. is a fiction. The Google Order, while interlocutory in form, is final in effect. Thus,
it gives Equustek more relief than it sought.

[64]
its

Procedurally, Equustek requested an interlocutory order in the course of
litigation

with

Datalink.

While

Equustek’s action against Datalink

could

technically endure indefinitely (G.P. Fraser, J.W. Horn and S.A. Griffin, The Conduct
of Civil Litigation in British Columbia (2nd ed. (loose-leaf)), at § 14.1) ― and thus
the interlocutory status of the injunction could technically endure indefinitely ― it
does not follow that the Google Order should be considered interlocutory. Courts of
equity look to substance over form, because “a dogged devotion to form has often
resulted in injustice” (John Deere Ltd. v. Firdale Farms Ltd. (1987), 45 D.L.R. (4th)
641 (Man. C.A.), at p. 645). In Parkin v. Thorold (1852), 16 Beav. 59, 51 E.R. 698, at
p. 701, Lord Romilly explained it thus:

. . . Courts of Equity make a distinction in all cases between that which is
matter of substance and that which is matter of form; and, if [they do]
find that by insisting on the form, the substance will be defeated, [they

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 133 of 143

hold] it to be inequitable to allow a person to insist on such form, and
thereby defeat the substance.

In our view, the substance of the Google Order amounts to a final remedy. As such, it
provides Equustek with more equitable relief than it sought against Datalink, and
amounts to final resolution via Google. It is, in effect, a permanent injunction.

[65]

Following RJR ― MacDonald (at pp. 338-39), an extensive review of the

merits is therefore required at the first stage of the analysis (Schooff v. British
Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680, at
paras. 26-27). Yet this was not done. When Justice Fenlon considered Equustek’s
application for an interim injunction enjoining Google to cease indexing or
referencing Datalink’s websites, she did not conduct an extensive review of the
merits. She did however note that Equustek had raised an arguable case, and that
Datalink was presumed to have admitted the allegations when its defenses were
struck (para. 151). The rule is not immutable that if a statement of defense is struck,
the defendant is deemed to have admitted the allegations contained in the statement of
claim. While the facts relating to Datalink’s liability are deemed to be admitted, the
court can still exercise its discretion in assessing Equustek’s claims (McIsaac v.
Healthy Body Services Inc., 2009 BCSC 1716, at paras. 42 and 44 (CanLII); Plouffe
v. Roy, 2007 CanLII 37693 (Ont. S.C.J.), at para. 53; Spiller v. Brown (1973), 43
D.L.R. (3d) 140 (Alta. S.C. (App. Div.)), at p. 143). Equustek has avoided such an
assessment. Thus, an extensive review of the merits was not carried out.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 134 of 143

[66]

The Google Order also does not meet the test for a permanent injunction.

To obtain a permanent injunction, a party is required to establish: (1) its legal rights;
(2) that damages are an inadequate remedy; and (3) that there is no impediment to the
court’s discretion to grant an injunction (1711811 Ontario Ltd. v. Buckley Insurance
Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 74-80; Spry, at pp.
395 and 407-8). Equustek has shown the inadequacy of damages (damages are
ascertainable but unlikely to be recovered, and the wrong is continuing). However, in
our view, it is unclear whether the first element of the test has been met. Equustek’s
claims were supported by a good prima facie case, but it was not established that
Datalink designed and sold counterfeit versions of its product, or that this resulted in
trademark infringement and unlawful appropriation of trade secrets.

[67]

In any case, the discretionary factors affecting the grant of an injunction

strongly favour judicial restraint. As we will outline below, the Google Order enjoins
a non-party, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no
assets of Equustek’s, and has no information relevant to the underlying proceedings.
The Google Order is mandatory and requires court supervision. It has not been shown
to be effective, and Equustek has alternative remedies.

B.

[68]

Google Is a Non-Party

A court order does not “technically” bind non-parties, but “anyone who

disobeys the order or interferes with its purpose may be found to have obstructed the
course of justice and hence be found guilty of contempt of court” (MacMillan Bloedel

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 135 of 143

Ltd. v. Simpson, [1996] 2 S.C.R. 1048, at paras. 23 and 27). In MacMillan Bloedel,
the injunction prohibiting named individuals from blocking a logging road also
caused non-parties to face contempt proceedings for doing the act prohibited by the
injunction.

[69]

The instant case is not one where a non-party with knowledge of a court

order deliberately disobeyed it and thereby deprecated the court’s authority. Google
did not carry out the act prohibited by the December 2012 Order. The act prohibited
by the December 2012 Order is Datalink “carrying on business through any website”.
That act occurs whenever Datalink launches websites to carry out business ― not
when other parties, such as Google, make it known that such websites exist.

[70]

There is no doubt that non-parties also risk contempt proceedings by

aiding and abetting the doing of a prohibited act (Seaward v. Paterson, [1897] 1 Ch.
545 (C.A.); D. Bean, A. Burns and I. Parry, Injunctions (11th ed. 2012), at para. 908). Lord Denning said in Acrow (Automation) Ltd. v. Rex Chainbelt Inc., [1971] 1
W.L.R. 1676 (C.A.), at p. 1682:

It has long been held that the court has jurisdiction to commit for
contempt a person, not a party to the action, who, knowing of an
injunction, aids and abets the defendant in breaking it. The reason is that
by aiding and abetting the defendant, he is obstructing the course of
justice.

[71]

In our view, Google did not aid or abet the doing of the prohibited act.

Equustek alleged that Google’s search engine was facilitating Datalink’s ongoing

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 136 of 143

breach by leading customers to Datalink websites (Fenlon J.’s reasons, at para. 10).
However, the December 2012 Order was to cease carrying on business through any
website. That Order was breached as soon as Datalink established a website to
conduct its business, regardless of how visible that website might be through Google
searches. If Equustek’s argument were accepted, the scope of “aids and abets” would,
in our view, become overbroad. It might include the companies supplying Datalink
with the material to produce the derivative products, the companies delivering the
products, or as Google argued in its factum, it might also include the local power
company that delivers power to Datalink’s physical address. Critically, Datalink
breached the December 2012 Order simply by launching websites to carry out
business, regardless of whether Google searches ever reveal the websites.

[72]

We agree with our colleague Justice Abella that Mareva injunctions and

Norwich orders can operate against non-parties. However, we respectfully disagree
that the Google Order is similar in nature to those remedies. Mareva injunctions are
granted to freeze assets until the completion of a trial ― they do not enforce a
plaintiff’s substantive rights (Mercedes Benz, at p. 302). In contrast, the Google Order
enforces Equustek’s asserted intellectual property rights by seeking to minimize harm
to those rights. It does not freeze Datalink’s assets (and, in fact, may erode those
assets).

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 137 of 143

[73]

Norwich orders are made to compel information from third parties. In

Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133
(H.L.), at p. 175, Lord Reid identified

a very reasonable principle that if through no fault of his own a person
gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to
assist the person who has been wronged by giving him full information
and disclosing the identity of the wrongdoers.

Lord Reid found that “without certain action on [Customs’] part the infringements
could never have been committed” (at 174). In spite of this finding, the court did not
require Customs to take specific action to prevent importers from infringing the
patent of Norwich Pharmacal; rather the court issued a limited order compelling
Customs to disclose the names of importers. In Cartier, the court analogized from
Norwich to support an injunction requiring Internet service providers (“ISPs”) to
block access to trademark-infringing websites because “it is via the ISPs’ services”
that customers view and purchase the infringing material (para. 155). That injunction
did not extend to parties merely assisting in finding the websites.

[74]

In the case at bar, we are of the view that Google does not play a role in

Datalink’s breach of the December 2012 Order. Whether or not the December 2012
Order is violated does not hinge on the degree of success of the prohibited website
business. Rather, the December 2012 Order is violated merely by Datalink
conducting business through a website, regardless of the visibility of that website or
the number of customers that visit the website. Thus Google does not play a role

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 138 of 143

analogous to Customs in Norwich nor the ISPs in Cartier. And unlike the order in
Norwich, the Google Order compels positive action aimed at the illegal activity rather
than simply requiring the provision of information to the court.

C.

[75]

The Google Order Is Mandatory

While the distinction between mandatory and prohibitive injunctions has

been questioned (see National Commercial Bank of Jamaica Ltd. v. Olint Corp.,
[2009] 1 W.L.R. 1405 (P.C.), at para. 20), courts have rightly, in our view, proceeded
cautiously where an injunction requires the defendant to incur additional expenses to
take positive steps (Redland Bricks Ltd. v. Morris, [1970] A.C. 652 (H.L.), at
pp. 665-66; J. Berryman, The Law of Equitable Remedies (2nd ed. 2013), at pp. 199200). Also relevant to the decision of whether to grant a mandatory injunction is
whether it might require continued supervision by the courts, especially where the
terms of the order cannot be precisely drawn and where it may result in wasteful
litigation over compliance (Co-operative Insurance Society Ltd. v. Argyll Stores
(Holdings) Ltd., [1998] A.C. 1 (H.L.).

[76]

The

Google Order requires ongoing modification and

supervision

because Datalink is launching new websites to replace de-listed ones. In fact, the
Google Order has been amended at least seven times to capture Datalink’s new sites
(orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015;
September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 139 of 143

should avoid granting injunctions that require such cumbersome court-supervised
updating.

D.

[77]

The Google Order Has Not Been Shown To Be Effective

A court may decline to grant an injunction on the basis that it would be

futile or ineffective in achieving the purpose for which it is sought (Spry, at pp.
419-20; Berryman, at p. 113). For example, in Attorney General v. Observer Ltd.,
[1990] 1 A.C. 109 (H.L.), the Spycatcher memoirs of an M.I.5 agent were already
readily available, thus making a perpetual injunction against publication by the
defendant newspapers ineffective.

[78]

In our view, the Google Order is not effective in enforcing the December

2012 Order. It is recalled that the December 2012 Order requires that Datalink “cease
operating or carrying on business through any website” — it says nothing about the
visibility or success of the website business. The December 2012 Order is violated as
soon as Datalink launches websites to carry on business, regardless of whether those
websites appear in a Google search. Moreover, the Google Order does not assist
Equustek in modifying the Datalink websites, as Equustek sought in its originating
claim for injunctive relief.

[79]

The most that can be said is that the Google Order might reduce the harm

to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152).
But it has not been shown that the Google Order is effective in doing so. As Google

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 140 of 143

points out, Datalink’s websites can be found using other search engines, links from
other sites, bookmarks, email, social media, printed material, word-of-mouth, or other
indirect means. Datalink’s websites are open for business on the Internet whether
Google searches list them or not. In our view, this lack of effectiveness suggests
restraint in granting the Google Order.

[80]

Moreover, the quest for elusive effectiveness led to the Google Order

having worldwide effect. This effect should be taken into consideration as a factor in
exercising discretion. Spry explains that territorial limitations to equitable jurisdiction
are “to some extent determined by reference to questions of effectiveness and of
comity” (p. 37). While the worldwide effect of the Google Order does not make it
more effective, it could raise concerns regarding comity.

E.

[81]

Alternatives Are Available

Highlighting the lack of effectiveness are the alternatives available to

Equustek. An equitable remedy is not required unless there is no other appropriate
remedy at law (Spry, at pp. 402-3). In our view, Equustek has an alternative remedy
in law. Datalink has assets in France. Equustek sought a world-wide Mareva
injunction to freeze those assets, but the Court of Appeal for British Columbia urged
Equustek to pursue a remedy in French courts: “At present, it appears that the
proposed defendants reside in France . . . . The information before the Court is that
French courts will assume jurisdiction and entertain an application to freeze the assets
in that country” (2016 BCCA 190, 88 B.C.L.R. (5th) 168, at para. 24). We see no

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 141 of 143

reason why Equustek cannot do what the Court of Appeal urged it to do. Equustek
could also pursue injunctive relief against the ISPs, as was done in Cartier, in order to
enforce the December 2012 Order. In addition, Equustek could initiate contempt
proceedings in France or in any other jurisdiction with a link to the illegal websites.

III.

Conclusion

[82]

For these reasons, we are of the view that the Google Order ought not to

have been granted. We would allow the appeal and set aside the June 13, 2014 order
of the Supreme Court of British Columbia.

Appeal dismissed with costs, CÔTÉ and ROWE JJ. dissenting.

Solicitors for the appellant: Lenczner Slaght Royce Smith Griffin,
Toronto.

Solicitors for the respondents: Robert Fleming Lawyers, Vancouver;
Michael Sobkin, Ottawa.

Solicitor for the intervener the Attorney General of Canada: Attorney
General of Canada, Ottawa.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 142 of 143

Solicitor for the intervener the Attorney General of Ontario: Attorney
General of Ontario, Toronto.

Solicitors

for

the

intervener

the

Canadian

Civil

Liberties

Association: Blake, Cassels & Graydon, Vancouver.

Solicitor

for

the

intervener

the

OpenMedia

Engagement

Network: Cynthia Khoo, Vancouver.

Solicitors for the interveners the Reporters Committee for Freedom of the
Press, the American Society of News Editors, the Association of Alternative
Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., the
First Amendment Coalition, First Look Media Works, Inc., the New England First
Amendment Coalition, the News Media Alliance (formerly known as the Newspaper
Association of America), AOL Inc., the California Newspaper Publishers Association,
The Associated Press, The Investigative Reporting Workshop at American University,
the Online News Association and the Society of Professional Journalists: Blake,
Cassels & Graydon, Toronto.

Solicitors for the interveners Human Rights Watch, ARTICLE 19, Open
Net (Korea), the Software Freedom Law Centre and the Center for Technology and
Society: Blake, Cassels & Graydon, Toronto.

Case 5:17-cv-04207-NC Document 1 Filed 07/24/17 Page 143 of 143

Solicitors for the intervener the Wikimedia Foundation: McInnes Cooper,
Halifax.

Solicitors for the intervener the British Columbia Civil Liberties
Association: Stockwoods, Toronto.

Solicitors

for

the

intervener

the

Electronic

Frontier

Foundation: MacPherson Leslie & Tyerman, Vancouver; Fasken Martineau
DuMoulin, Vancouver.

Solicitors for the interveners the International Federation of the
Phonographic Industry, Music Canada, the Canadian Publishers’ Council, the
Association of Canadian Publishers, the International Confederation of Societies of
Authors and Composers, the International Confederation of Music Publishers and the
Worldwide Independent Network: McCarthy Tétrault, Toronto.

Solicitors for the intervener the International Federation of Film
Producers Associations: MacKenzie Barristers, Toronto.