Google V Equustek

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 [email protected]
Carolyn M. Homer (CA Bar No. 286441)
3 [email protected]
555 Twin Dolphin Drive, 5th Floor
4 Redwood Shores, California 94065-2139
Telephone: (650) 801-5000
5 Facsimile: (650) 801-5100
6 Attorneys for Plaintiff

Google Inc.
7
8 UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA
9 SAN JOSE DIVISION
10
11 Google Inc., Case No. 17-CV-________________
12 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
1 Plaintiff Google Inc. (Google), by and through its attorneys, hereby alleges:
2 INTRODUCTION
3 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 websitesnot just on Googles 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 Googles 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 Googlea single provider on interactive computer servicesas 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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COMPLAINT
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 courts order cannot be enforced in the United States and an order
7 enjoining that enforcement.
8 PARTIES
9 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 JURISDICTION & VENUE

24 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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COMPLAINT
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 Statesspecifically, 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 Googles 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 controllednamely, 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, Googles 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 FACTUAL BACKGROUND
20 Google Offers Search Services Around The World.
21 13. Google is an American company that offers a free and popular internet search
22 engine, accessible at www.google.com. Googles United States and worldwide search engine
23 operations are conducted from, and controlled by, Googles 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). Googles 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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COMPLAINT
1 14. Googles search results are based on Googles 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 Googles 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 hostsnot 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 Googles search results, anyone can still access a live website via other
13 means, including by entering the websites 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 Equusteks 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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COMPLAINT
1 striking of Datalinks response to Equusteks 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 Datalinks Websites In Search Results Displayed Anywhere In The World.
9 19. In September 2012 Equustek asked Google to cease indexing Datalinks websites
10 in Googles search results. Pursuant to its policies, Google declined to do so at that time. In
11 December 2012, the Canadian court granted Equusteks 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 Googles Canadian search results on
15 www.google.ca. However, Google rejected Equusteks demand that Google delist all links to
16 Datalinks websites on its search services targeted to users outside of Canadas 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 Googles 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 Courts 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 Googles
28 search results world-wide.
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COMPLAINT
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 courts 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 Datalinks 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 Datalinks 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 Datalinks 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 Googles 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 Googles 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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COMPLAINT
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 Googles
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 Datalinks wrongdoing; it holds no assets of Equusteks, 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. Datalinks 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 courts decision, the American courts [can] then tell us what the law really is.
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COMPLAINT
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 Courts 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 Amendments prohibition on abridgments of speech extends to judicial
17 restraints on free speech. Because the Canadian Order is directed to a specific speakerGoogle
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 Googles search results outside of Canada. Upon information and belief, Equustek has
24 not sought similar delisting injunctions against the worlds 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 Datalinks registrars or its webhosts, which could remove Datalinks websites from the internet
28
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COMPLAINT
1 entirely; and has not stopped the sale of Datalinks 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
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 Equusteks action is grounded in
23 Canadian trade secret law (not U.S. federal intellectual property law or trade secret laws), Section
24 230 preempts Equusteks attempted enforcement of the Canadian Order against Google in the
25 United States.
26 39. Google Search satisfies Section 230s 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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COMPLAINT
1 40. Datalink, not Google, is the information content provider that supplies the content
2 of its websites. The fact that Googles search results may contain snippets from third-party
3 websites such as Datalinks 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 Googles display of accurate search results.
6 Equusteks enforcement of the Canadian Order boils down to forcing Google to exclude material
7 that third parties have posted online.
10 require Google to delist search results in the United States.
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
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 Googles 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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COMPLAINT
1 47. Disregarding this, the Supreme Court of Canada declared The Internet has no
2 bordersits 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. Equusteks counsel repeatedly acknowledged that United States courts might view
5 the Canadian Order as violating United States lawbut urged the Canadian courts to not reverse
6 on that basis. For example, Equusteks 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 Equusteks 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 reliefan 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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COMPLAINT
1 the Canadian Order because the Canadian courts failed to extend proper comity to the United
2 States,
5 require Google to delist search results in the United States.
8 injunctive relief.
9 PRAYER FOR RELIEF
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 surrounding enforceability of foreign judgments pursuant to international comity;
14 2. Issue judgment in Googles favor and against Defendants on all causes of action
15 alleged herein;
16 3. Grant Google preliminary and permanent injunctive relief enjoining enforcement of
17 the Canadian Order in the United States;
18 4. Grant such other and further relief as the Court may deem to be just and proper.
19 DATED: July 24, 2017 QUINN EMANUEL URQUHART &

SULLIVAN, LLP
20
21
By
22
M^gret yy. Caruso
23 Carolyn M. Homer
24 Attorneys for Plaintiff

Google Inc.
25
26
27
28
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complaint
EXHIBIT A
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IN THE
IN THE SUPREME
SUPREME COURT
COURT OF
OF BRITISH
BRITISH COLUMBIA
COLUMBIA
Citation: Equustek Solutions Inc. v. Jack,

2014 BCSC 1063
(CanLII)
Date: 20140613
2014 BCSC 1063 (CanLII)

Docket: S112421
Registry: Vancouver
Between:
Equustek Solutions
Equustek Solutions Inc.
Inc.
Robert Angus
Robert Angus and
and Clarma
Clarma Enterprises
Enterprises Inc.
Inc.
Plaintiffs
And
Morgan Jack,
Morgan Jack, Andrew
Andrew Crawford,
Crawford,
Datalink Technologies
Datalink Technologies Gateways
Gateways Inc.,
Inc., Datalink
Datalink 5,
5, Datalink
Datalink 6,
6,
John Doe,
John Doe, Datalink
Datalink Technologies
Technologies Gateways
Gateways LLC and Lee
LLC and Lee Ingraham
Ingraham
Defendants
Honourable Madam Justice Fenton

Before: The Honourable Fenlon
Reasons for
Reasons for Judgment
Judgment
Counsel for the Plaintiffs: R.S. Fleming
Counsel for the

the Respondents
Respondents to Application S.R. Schachter,
Schachter, Q.C.
Corporation and
Google Canada Corporation and Google
Google Inc.:
Inc.: G.B. Gomery,
Gomery, Q.C.
Place and Date of Hearing: Vancouver, B.C.

Vancouver,
October 22 and 23, 2013
February 7, 2014
Further
Further Written Submissions: March 7 and 24, 2014
May 23 and 29, 2014
Date of
Place and Date of Judgment:
Judgment: Vancouver, B.C.
Vancouver,
June
June 13, 2014
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Equustek Solutions Inc. v. Jack Page 2
I.
I. INTRODUCTION
INTRODUCTION
[1]
[1] The
The plaintiffs
plaintiffs apply for an interim injunction restraining two
two non-parties,
Google Inc. from including
Inc. and Google Canada Corporation, from including the
the defendants'
defendants
(CanLII)
websites in
websites in search
search results
results generated
generated by
by Googles
Google's search
search engines.
engines. This application
novel questions about the
raises novel Courts authority
the Court's authority to make such an order against a
internet service provider.
global internet
[2]
[2] Although the plaintiffs seek an order against Google Inc. and Google Canada
Although
Corporation, there is no evidence that Google Canada Corporation is
is involved in the
search services the plaintiffs seek to enjoin. It was common ground at
at the hearing
that Google Inc.
Inc. provides those
those internet
internet search services. The order sought,
sought, if it is to
be made, must thus
thus be made against Google Inc.
Inc. Accordingly, when I use the term
Google, II am
"Google", am referring
referring only to Google Inc.
only to Inc. II use
use the
the term
term "Google
Google Canada
Canada" to
to refer
refer
to Google Canada Corporation in places.
II.
II. THE
THE UNDERLYING ACTION
UNDERLYING ACTION
[3]
[3] The
The plaintiffs manufacture
manufacture networking devices that allow complex industrial
manufacturer to communicate with complex industrial
equipment made by one manufacturer
by another
equipment made by another manufacturer.
manufacturer.
[4]
[4] The
The plaintiffs
plaintiffs claim that the
the defendants
defendants other than Andrew Crawford and Lee
(hereinafter referred
Ingraham (hereinafter
Ingraham to as
referred to as the
"the defendants),
defendants"), while
while acting as a distributor of
plaintiffs products, conspired with one of the
the plaintiffs' plaintiffs former engineering
the plaintiffs' engineering
design and manufacture
employees and others to design manufacture a competing product, the
defendants designed their competing product
GW1000. The plaintiffs say that the defendants
using the plaintiffs trade secrets.
plaintiffs' trade secrets.
[5]
[5] The
The plaintiffs
plaintiffs also claim that for many
many years before they made the
the GW1000
the defendants
the defendants covered over the
covered over plaintiffs name
the plaintiffs' name and
and logo
logo and
and passed
passed off
off the
the
plaintiffs products as their own. Later when the defendants began manufacturing
plaintiffs' manufacturing the
relied on
GW1000, they relied on the
the plaintiffs'
plaintiffs goodwill
goodwill by
by exclusively
exclusively advertising
advertising the
the
plaintiffs products
plaintiffs' products on
on their
their websites.
websites. The defendants then delivered their own
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competing product when received orders

when they received orders for
for the
the plaintiffs products, in a tactic
plaintiffs' products,
bait and
amounting to "bait
amounting and switch".
switch.
[6]
[6] This underlying
underlying action was commenced on April 12, 2011. The
The defendants
defendants
(CanLII)
various court orders from the
failed to comply with various the outset of proceedings, resulting
resulting in
the defences of Morgan Jack and Datalink Technologies Gateways Inc.
Technologies Gateways Inc. being struck
struck
June 2012.
in June
[7]
[7] The
The defendants
defendants originally carried on business
business in Vancouver
Vancouver but
but now
now appear
virtual company. They carry on business through a complex and
to operate as a virtual
network of websites through
ever expanding network through which they advertise and sell their
product. These websites have been the subject of numerous
numerous court orders,
orders, including
including
a December 2012 order prohibiting the defendants from carrying on business
through any website. The defendants
through defendants continue
continue to sell the GW1000 on their websites
in violation of these court
court orders.
[8]
[8] Google is not a party to this action. It operates and maintains
maintains internet
intemet search
that include
services that include the defendants various
the defendants' various websites
websites in
in Google's
Googles search
search results.
results.
Google acknowledges
acknowledges that it has the ability to remove
remove websites from
from its search
engine results, and routinely does so in various situations.
[9]
[9] Following the December 2012 order prohibiting the defendants from
from carrying
carrying
through any website, Google voluntarily
on business through complied with
voluntarily complied with the
the plaintiffs'
plaintiffs
request to remove specific webpages or uniform (URLs) from its
uniform resource locations ("URLs")
Google.ca search results (i.e. from searches originating in Canada), removing
removing 345
unwilling to block an entire category of URLs,
URLs in total. However, Google is unwilling
sometimes referred
sometimes referred to
to as
as mother
"mother sites results worldwide.
sites" from its search results
III.
III. POSITION OF
POSITION OF THE
THE PARTIES
PARTIES TO
TO THIS
THIS APPLICATION
APPLICATION
[10]
[10] The
The plaintiffs
plaintiffs take the position that an injunction
injunction should
should be granted against
Google because Googles search engine
Google's search facilitates the
engine facilitates the defendants
defendants' ongoing
ongoing breach
of the Courts orders by leading customers to Datalink websites.
Court's orders
-4-
-4
Google
[11] Google takes
takes theposition
the positionthat
thatthe
theCourt
Courtdoes
doesnot
nothave
have jurisdiction
jurisdiction over
over either
Inc. or Google Canada because neither is present in British Columbia and
Google Inc.
because the application for an injunction
injunction does not
not relate
relate to
to Google
Google doing or
refraining from doing anything
anything in either British Columbia or Canada. Google argues
(CanLII)
that even if this Court has jurisdiction, the order sought should not be made for two
main reasons: (i) because
reasons: (i) because itit would
would amount
amount to
to aa worldwide
worldwide order that could
could not be
enforced and (ii) because it would constitute
constitute an unwarranted
unwarranted intrusion
intrusion into
into Googles
Google's
lawful business activities as a search engine.
lawful
IV.
IV. ISSUES
ISSUES
Theapplication
[12] The applicationraises
raisesthree
three main
main issues:
issues:
(i)
(i) Does this Court have territorial competence over a worldwide internet
search provider such as Google?
(ii)
(ii) If the answer to the first question is yes, should
should this Court decline to
exercise jurisdiction on the basis that California is the more appropriate
forum?
(iii) Should the order sought be granted?

Should
V. ANALYSIS
V. ANALYSIS
1.
1. Does the
Does the Court
Court have territorial competence
have territorial competence over
over Google?
Google?
Determiningwhether
[13] Determining whetherjurisdiction
jurisdictionshould
should be
beassumed
assumed in
in aa case
case with
interjurisdictional aspects has always been a complex question. The worldwide
interjurisdictional
growth of intemet
internet or
or e-commerce
e-commerce has
has only
only made
made the
the task
task more
more challenging.
challenging.
[14] The
The startingpoint
starting pointinindeciding
decidingwhether
whetherthe
theCourt
Courthas
hasterritorial
territorial competence
competence to
make the order sought against Google is the Court Jurisdiction and Proceedings
Transfer Act, S.B.C. 2003, c. 28 [CJPTA]
[CJPTA] which codified and replaced the common
is established
law in this area. Territorial competence is established "by
by the
the existence
existence of
of defined
defined
connections between the
connections the territory
territory or legal
legal system
system... and a party to the proceeding or
-5
5 -1 Filed 07/24/17 Page 19 of 143
Case 5:17-cv-04207-NC Document
the facts
the facts on
on which
which the
the proceeding
proceeding is
is based":
based: Stanvtey
Stanway v. Wyeth
Wyeth Pharmaceuticals
Inc., 2009 BCCA 592 at para. 10.
[15]
[15] The plaintiffs
plaintiffs accept they bear
bear the
the burden
burden of
of establishing the Court's
establishing the Courts territorial
territorial
(CanLII)
competence over Google. However, the
the parties
parties do not
not agree on the standard
standard of
proof to be applied
applied to
to this
this analysis.
(i) Standard of
What Standard of Proof
Proof applies?
applies?
[16]
[16] The plaintiffs
plaintiffs argue
argue that
that they
they need only show
need only show a good arguable case that
within the
Google is within Courts jurisdiction,
the Court's jurisdiction, sometimes
sometimes described as a prima facie case.
submits that
Google submits that the ordinary, higher
the ordinary, higher standard
standard of
of proof
proof on
on aa balance
balance of
probabilities applies.
[17]
[17] The Court of Appeal held that aa plaintiff
plaintiff need only
only establish
establish an
an arguable
arguable case
issubject
that a defendant is subject to
to the Courtsjurisdiction:
the Court's jurisdiction: Purple Echo Productions, Inc.
v. KCTS Television, 2008 BCCA 85 [Purple Echo]
Echo] at paras. 41-42. That can be
asserting facts
accomplished by asserting facts that,
that, ifif proved,
proved, would
would found
found jurisdiction:
jurisdiction: Purple Echo
para. 36.
at para. 36.However,
However, this
thisconclusion
conclusion is predicated on
is predicated on the
the assumption
assumption that
that "[i]f
[i]f an
an
case were
arguable case were made
madeout,
out,the
thecase
casewould
wouldcontinue
continuewith
withjurisdiction
jurisdiction potentially
potentially
still a
still live issue":
a live issue: Purple Echo at para. 37.
37. The
The Court
Court of
of Appeal
Appeal noted
noted that since a
determination under
determination under what
what is
is now
now Rule
Rule 21-8(1) is not a final determination,
21-8(1) is determination, a prima
facie standard suffices:
suffices: Purple Echo at para. 39.
39. The
The standard
standard of
of proof
proof is
is thus
thus clear
when a defendant challenges
challenges jurisdiction.
jurisdiction. However,
However, Google is not
not a defendant,
defendant, but a
non-party respondent on an
non-party an interim
interim application.
application.
[18]
[18] The order sought
sought on this
this application is an interim one in the underlying
underlying action
plaintiffs and
between the plaintiffs and defendants,
defendants, and if ordered, may also turn
turn out
out to
to be time-
limited against Google. However, ifif the
limited the order is made
made itit is
is unlikely
unlikely there will
will be
opportunity to
another opportunity to consider
consider the
the Courts
Court's jurisdiction
jurisdictionto
tomake
make an
an order against
In that
Google. In that sense
sense the
the issue
issue of
of territorial
competence on
on this
this application
application is aa final
final
determination.
-6-
-6
[19]
[19] On the other
other hand, the
the plaintiffs
plaintiffs have had
had limited
limited opportunity
opportunity to gather
evidence in
evidence in support
support of
of the
the jurisdictional
jurisdictional facts
facts they
they rely
rely on
on to establish the
to establish Courts
the Court's
territorial competence over
over Google.
Google. They Smith, who
They have cross-examined Steven Smith, who
member of
is a member of the
the "Legal
Legal Removals
Removals" team
team in
in Googles
Google's legal
legal department,
department, but
(CanLII)
discovery of
discovery of Googles
Google's corporate
corporate structure
structure and
and operations
operations has
has been limited.
been limited.
[20]
[20] The Supreme Court of Canada
Canada addressed
addressed the
the challenge
challenge facing
facing a court
court in
determining jurisdiction
jurisdiction on interlocutory
interlocutory motions
motions in Club Resorts Ltd.
Ltd. v. Van Breda,
2012 SCC 17, [2012] 1 S.C.R. 572 [Van Breda]
Breda] at para. 72:
[72] [C]ourt decisions dealing with the assumption and

...[C]ourt decisions and the exercise of
jurisdiction are
jurisdiction are usually interlocutory
interlocutorydecisions
decisions made
made at at the preliminary
preliminary stages
of litigation.
litigation. These
These issues are typically
typically raised
raised before
before the trial begins.
begins. As
As a
result, even though suchsuch decisions can often be be of
of critical importance to the
parties and to the further conduct of of the litigation,
litigation, they
they must
must bebe made
made on the
basis of the pleadings, the affidavits
affidavits of the parties
parties and the documents in the
record before the judge, which
which might include expert reports reports oror opinions
opinions about
organization of
the state of foreign law and the organization of and procedure
procedure in in foreign
foreign
courts. Issues of fact relevant to to jurisdiction
jurisdiction must be settled in this context,
often on a prima facie basis. These
These constraints underline
underline the delicate
delicate role
role of
the motion judges who must consider these these issues.
[21]
[21] In proof on a balance of
In my view, proof of probabilities
probabilities is the
the appropriate standard
standard on
this application because the
this the jurisdictional
jurisdictional ruling
ruling is a final one vis
a vis the applicant
respondent. However, that
and respondent. that standard
standard should
should be
be applied
applied while
while recognizing
recognizing that
plaintiffs have had aa limited
the plaintiffs limited opportunity
opportunity to marshal supporting
supporting evidence.
(ii) plaintiffs established territorial competence?

Have the plaintiffs competence?
[22]
[22] I return
return now
now to
to the
the substantive
substantive question: Does Google
question: Does Google fall
fall into
into one of
of the
the
connecting factors specified in the CJPTA? Neither
connecting Neither Google nor
nor Google
Google Canada
Canada is
registered or has a place of
of business in British
British Columbia. Section 3(e) of
of the
the CJPTA
that:
provides that:
3 territorial competence in a proceeding that is brought

A court has territorial brought
against a person only if

(e) and substantial
there is a real and substantial connection
connection between
between British
British
Columbia and the facts on which the proceeding against that person
is based.
- 77 -
[23] Section
[23] Section10
10of
of the a real and
the CJPTA provides that "a and substantial
substantial connection"
connection
British Columbia and the facts on which
between British which the proceeding is based is
to exist if certain facts pertain. The plaintiffs
presumed to plaintiffs rely on three of the
connecting factors
connecting factors listed
listed in s. 10,
ins. 10, asserting
asserting that
that this
this application:
application:
(CanLII)
(a) is brought
brought to
to enforce,
enforce, assert, declare or determine proprietary or
possessory
possessory rights or a security interest in property in British Columbia that is
immovable or movable property,
property,

(h)
(h) concerns a business carried on in British Columbia,
(i)
(i) is a claim for an injunction
injunction ordering a party to do or refrain from doing
anything
(i)
(i) in British
British Columbia,
Columbia, or
(ii)
(ii) in relation
relation to property in British
British Columbia
Columbia that
that is
is immovable or
movable property,
property,
Before
[24] Before consideringany
considering anyofofthese
theseconnecting
connectingfactors
factorsindividually,
individually, II note
note that
that
application of the
the presumptive
presumptive factors
factors in s. 10 of
of the CJPTA is contextual.
contextual. The
CJPTA, like many of the cases
cases addressing conflicts
conflicts of laws,
laws, focuses
focuses on parties to a
dispute in which
dispute which one
one has
has a cause of action against
against the
the other.
other. However, proceeding
an action, suit,
is defined broadly in s. 1 of the CJPTA as "an suit, cause, matter, petition
proceeding or requisition
requisition proceeding
proceeding and
and includes
includes a procedure and aa preliminary
preliminary
motion. Thus,
motion". Thus, the
the proceeding
"proceeding" with
with respect
respect to
to which
which II must
must answer
answer the
the question of
jurisdiction is
jurisdiction is not
not the
the underlying
underlying dispute
dispute between
between the plaintiffs
plaintiffs and
and defendants
defendants but
the relief that is specifically sought
sought against Google.
Turningto to
[25] Turning thethe connectingfactors
connecting factorsthe
theplaintiffs
plaintiffsrely
relyon,
on,I Ifirst
first conclude
conclude that
that
10(i) of
s. 10(i) of the
the CJPTA is not
not applicable. The plaintiffs
plaintiffs apply to
to compel
compel Google to take
steps to alter its
its search engine. While Google was
was vague
vague about
about the
the location
location of
of the
computers that
computers that operate the search
search engine
engine program,
program, itit is
is certain
certain that
that those
those computers
computers
not located in British Columbia. It follows
are not follows that
that the order sought
sought does not relate to
taking steps in
Google taking in British
British Columbia or
or in
in relation to property in British Columbia.
[26] I conclude
[26] I concludethat
thats.s.10(a)
10(a)of
of the
the CJPTA is applicable. This connecting
connecting factor
establishes aa presumptive
presumptive substantial
substantial connection
connection in a proceeding
proceeding brought
brought to enforce
-8-
-8
proprietary rights
proprietary rights over
over immoveable
immoveable or moveable property in
in British Columbia. The
plaintiffs intellectual
plaintiffs' intellectual property
property at
at the
the heart
heart of underlying action is moveable
of the underlying
property. The plaintiffs
property. plaintiffs seek to enjoin Google in order to enforce their proprietary
rights.
(CanLII)
[27]
[27] The plaintiffs
plaintiffs acknowledge
acknowledge that
that the
the vast
vast majority
majorityof
ofGW1000 sales occur
GW1000 sales
outside of Canada,
outside but II accept
Canada, but accept that
that at
at least
least to
to the
the extent
extent that
that the
the order
order sought
sought
relates to the enforcement of intellectual
intellectual property
property rights
rights in
in British
BritishColumbia,
Columbia, s.
s. 10(a)
10(a)
be aa weak
applies. It may be weakconnecting
connecting factor,
factor, but
but that
that is
is not
not aa consideration
consideration at
at this
this
of the jurisdictional
stage of jurisdictional analysis.
[28]
[28] I conclude
conclude that
that s. 10(h) is
is also aa connecting
connecting factor, and a stronger
stronger one,
the injunction
because the injunction sought
sought concerns
concerns a business that Google carries
carries on
on in
in British
British
The question
Columbia. The question of
of whether
whether Google
Google carries
carries on
on business
business in
in British
British Columbia
requires a
requires detailed consideration
a detailed consideration of
of Google's
Googles operations.
operations.
[29]
[29] Google Canada
Canada is
is aawholly
wholly owned
owned subsidiary
subsidiary of
of Google.
Google. ItIt is
is chiefly
chiefly
responsible for marketing Googles services,
marketing Google's services, including
including its
its search
search advertising,
advertising,
engineering efforts
engineering efforts on products
products other
other than
than Google
Google search, and other forms of
interaction with
interaction with the
the Canadian
Canadian public
public such
such as
as policy
policyoutreach.
outreach. Google
Google Canada
Canada is
incorporated in
incorporated in Nova
Nova Scotia and
and has offices in
in Montreal,
Montreal, Toronto,
Toronto, Ottawa,
Ottawa, and
Google Canada
Waterloo. Google Canadaisisnot
notextra-provincially
extra-provincially registered
registered in
in British
British Columbia.
[30]
[30] Google is a publically
publically traded
traded company
company incorporated
incorporatedin
inDelaware,
Delaware, USA. Its
USA. Its
head office is in Mountain
Mountain View, California and its internet
intemet search services are
operated out of that facility".
"operated facility. ItIt too is not
not extra-provincially
extra-provincially registered in British
Google has
Columbia. Google has two
two wholly
wholly owned
owned subsidiaries
subsidiaries that
that are
areextra-provincially
extra-provincially
registered in British
BritishColumbia,
Columbia,Google
Google Payment
Payment Corp.
Corp. and
and Google
Google Canada
Canada Payment
have no
Corp., but I have no evidence
evidence about
about the
the activities
activities of
of those companies.
[31]
[31] Google operates the Google
Google search
search engine
engine that
that makes
makes internet
internet search
search results
results
through dedicated websites for each country
available through country around
around the
the world.
world. For
Google provides
example, Google provides internet
internet search services
services to
to users
users in Canada
Canada through
through
-9-
-9
www.google.ca, to
"www.google.ca", to users
users in
in the
the United
United States
Statesthrough
through "www.google.com",
www.google.com, and
and to
to
users in
users in France
France through
through "www.google.fr".
www.google.fr. Despite
Despiteproviding
providing country
country specific
specific search
that intemet
websites, Google acknowledges that internet users
users are
arenot
not restricted
restricted to
to using
using the
the
website dedicated to their
their particular
particular country.
country. Thus
Thus users
users in
in Canada
Canada can search
(CanLII)
through www.google.fr, and
through "www.google.fr", and vice
vice versa.
versa.
[32]
[32] There are
are hundreds
hundreds of
of millions
millions of active
active websites over
over the
the internet
intemet and
trillions of
trillions ofwebpages.
webpages. Search
Search engines
engines make the internet
internet aa viable
viable and effective
effective
information and communication
information communication resource. The intemet
internet cannot
cannot be
besuccessfully
successfully
without search services such as those Google
navigated without Google provides.
provides. Although
Although there
internet search companies, 70-75%
are other intemet of intemet
70-75% of internet searches
searches worldwide
worldwide are
through Google.
done through
[33]
[33] Google does not charge for providing
providing internet
internet search
search services.
services. ItIt earns money
in other
other ways, primarily
primarily by selling
selling advertising
advertising space
space on
on the
the webpages that display
Googles advertising
results. Google's
search results. advertising success
success is
is driven
driven by
by the
the very
very high
high quality
quality of
of its
its
results. Its income from these commercial activities
search results. activities is about $50
$50 billion
billion
annually.
[34]
[34] Google says that the
the fact that
that an
an intemet
internet search
search is
is initiated
initiated in
in British
British
to Google
Columbia does not equate to Google carrying
carrying on
on business
business in the province. Google
on the
argues that on the plaintiffs'
plaintiffs reasoning country on earth whose civil
reasoning there is not a country civil
courts could
courts could not
not assert
assert jurisdiction
jurisdiction over
over Google
Google in
in respect
respect of search results.
results. Rather,
suggests Google,
suggests Google, "some
some form
form of
of actual
actual not
not virtual
virtual presence is required".
presence is required. Google
heavily on Van Breda in which
relies heavily which LeBel J. wrote
wrote at
at para.
para. 87:
[87] Carrying on business in the jurisdiction

jurisdiction may
may also
also be considered an
appropriate connecting factor.
factor. But
But considering
consideringititto tobe
be one
one may
may raise
raise more
difficult
difficult issues.
issues. Resolving
Resolving those
those issues
issues may require some some caution in order to
avoid creating what would
would amount
amount to to forms
forms of
of universal jurisdiction
jurisdiction in
in respect
respect
of tort
tort claims arising
arising out
out of
of certain
certain categories
categories of of business
business oror commercial
commercial
activity.
activity. Active
Active advertising
advertising inin the jurisdiction
jurisdictionor,or, for
forexample,
example, the
the fact that a
Web site
Web site can
can be
be accessed
accessedfromfromthe
thejurisdiction
jurisdiction would
would not suffice
suffice to establish
that the defendant is carrying on business there. The The notion
notion of
of carrying
carrying on
business requires some form of actual, not only virtual, virtual, presence in the
jurisdiction, such
jurisdiction, such as maintaining
maintaining an office there or regularly visiting the
territory of the particular jurisdiction.
territory jurisdiction. [Emphasis
[Emphasis added.]
- 10 1- Filed 07/24/17 Page 24 of 143
Google did not quote that

that paragraph in full.
full. The next line adds what is, in my view,
qualification:
an important qualification:
But the Court has not been asked in this appeal to decide whether and, if so,
when e-trade
e-trade in
in the
the jurisdiction
jurisdiction would
would amount to
to aa presence in the
(CanLII)
jurisdiction.
In contrast to Van Breda, the matter

matter before me involves
involves e-commerce, or at least
providing an
providing e-service.
an "e-service".
[35] Van Breda indicates that

that a real and substantial
substantial connection
connection cannot
cannot be derived
from the
the mere fact that a passive
passive website
website can be
be accessed
accessed in
in the
the jurisdiction.
jurisdiction. To
Blu Concept Inc., 2009 BCSC
similar effect is Thumbnail Creative Group Inc. v. Blu
1833 [Thumbnail]. In
In that plaintiff claimed the defendant breached
that case the plaintiff breached copyright
copyright
publishing the
by publishing the plaintiffs
plaintiffs images.
images. The defendant published
published these
these images in a book
in the
the United States which could
could be purchased
purchased on the internet. Madam
the internet. Justice
Madam Justice
Dickson said at para 19:
[19] useof
... use of the
theInternet
Internet in in the
thecourse
courseofof conducting
conducting business
business does not
mean
mean thethe business
business in question
question is carried on globally
globally for
for the purposes of of a
territorial competence analysis. As counsel for [the defendants] points out, if
this were so so the Supreme
SupremeCourt Courtof of British
British Columbia
Columbiawould
would have
havejurisdiction
jurisdiction in
any dispute involving
involving any any business that that makes long-distance telephone calls
into this
this province
province or or relies
relies upon
upon the Internet. [The [The plaintiff]
plaintiff] did not provide
authority
authority in support of this this far
far reaching proposition, which is, in my view,
unsustainable. [Emphasis added.]
[36]
[36] ItIt follows Thumbnail that the ability of someone in
follows form Van Breda and Thumbnailthat in British
British
created by
Columbia to open a website created by aa person
personin
in another
another country
country does
does not
not of itself
give this Court jurisdiction
jurisdiction over
overthe
the creator
creator of
of that
that website.
website. Something
Something more is
Van Breda, the Court considered factors
required. In Van factors such
such as whether
whether the
defendants representatives
defendants' representatives regularly
regularly travelled
travelled to
to Ontario
Ontario to
to further
further the
the defendants'
defendants
promotional activities for its
promotional its resorts
resorts and whether
whether it distributed promotional
promotional materials
in the province. In Thumbnail, Dickson J. considered that
that the connection
connection between
defendants and British
the defendants British Columbia
Columbia appeared to be limited to
to the
the sale of one copy
of the defendants
defendant's book.
- 11 -
[37]
[37] E-commerce has
E-commerce has exponentially
exponentially increased
increased the
the difficulty
difficulty of
of determining
determining whether
whether
is carrying
a company is carrying on business in
in aa particular
particular jurisdiction;
jurisdiction; itit raises the
the spectre of
being found
a company being found to carry on business all over the world, just
just as Google
submits with
submits with some alarm. Kevin Meehan
Meehan comments
comments in The Continuing
in"The Continuing Conundrum
Conundrum
(CanLII)
of International
International Internet
Internet Jurisdiction (2008)31
Jurisdiction"(2008) 31BC
BC Intl
Int'l&&Comp
CompLLRev
Rev345
345 at 349:
In the traditional
traditional analog world, it is is relatively
relatively easy for courts toto determine the
locations of
geographical locations of the persons, objects, and activities
activities relevant to a
particular
particular case.
case. TheThe geography
geography of the the digital world of the Internet, however, is
not as easily charted.
charted. Content
Content providers
providers may may physically
physically reside, conduct their
business, and locate
locate their servers in in aa particular
particular location,
location, yet their content is
readily accessible from anywhere in the world. Furthermore, attempts to
identify
identify the location
location of
of aa particular
particular user
user over
over the Internet
Internet have proven
extremely difficult,
difficult, and many Internet users users compound
compound this problem by
intentionally
intentionally hiding their location. Traditional principles
principles of international
jurisdiction, particularly
particularly territoriality,
territoriality, are
are poorly suited for this
this sort of
environment of geographic
geographic anonymity.
anonymity. Courts have struggled to to develop
develop a
satisfactory solution,
solution, yet
yet no
no progress
progress hashas been
been made
made toward aa uniform
uniform global
standard of Internet jurisdiction.
jurisdiction.
[38]
[38] In short,
short, courts
courts have traditionally focused
have traditionally focused on locating
locating the behaviour in issue
the behaviour
within aa particular
within particular states
state's borders
borders to
to ensure
ensure that
that the
"the connection
connection between
between a state and
cannot be weak
a dispute cannot weak or
or hypothetical
hypothetical [so as to]
to] cast doubt upon the
the legitimacy of
of state power
the exercise of over the
power over the persons
persons affected
affected by
by the
the dispute"
dispute [Van Breda at
32]. Online
para. 32]. Online activities,
activities, whether
whether commercial or otherwise,
otherwise, are not so easily
pigeonholed.
[39]
[39] In Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d)
(3d) 416,
416, 2004
2004 CanLII
CanLII
12938 (C.A.) [Barrick Gold], an Ontario company sued
sued aa British
British Columbia resident,
resident,
alleging that
alleging that he was defaming the company
company by posting
posting hundreds
hundreds of messages on
internet websites accusing
internet accusing the money laundering,
the company of fraud, tax evasion, money laundering,
30 the
and genocide. At para. 30 the Ontario
Ontario Court
Court of
of Appeal
Appeal quoted
quoted with
with approval
approval from
from a
High Court of Australia
Australia decision that said:
The Internet is essentially a decentralized, self-maintained

telecommunications network. It is mademade upup of
of inter-linking
inter-linking small
small networks
from all parts of the world. It is ubiquitous,
ubiquitous, borderless, global
global and ambient in
its nature. Hence
Hence the term "cyberspace"
"cyberspace".ThisThis is
is aa word
word that
that recognizes
recognizes that
interrelationships created by the Internet
the interrelationships Internet exist
exist outside
outside conventional
geographic
geographic boundaries and comprise
comprise a single interconnected body of data,
potentially amounting to a single body of knowledge. The Internet
potentially Internet is
-- 12
12 --
accessible in virtually
virtually all
all places
places on
on Earth
Earth where access can be
access can be obtained
obtained
either by wire connection or by wireless
wireless (including satellite) links. Effectively,
the only constraint on access
access toto the Internet is possession
possession of the means of
securing connection to a telecommunications system system and
and possession
possession of the
basic hardware. [Italics
[Italics added
added by the Ontario Court of Appeal.]
(CanLII)
[40]
[40] The Ontario Court of Appeal went
went on
on to note that
that these
these characteristics
characteristics create
context and
challenge in the defamation context
a challenge and that
that Traditional
"Traditionalapproaches
approaches
... may not
to the
respond adequately to the realities
realities of
of the
the Internet
Internet world":
world: Barrick Gold at para. 32.
[41]
[41] Canadian courts have found
Canadian courts found some
some assistance
assistance regarding
regarding jurisdiction
jurisdiction and the
internet in American cases. As academic commentators
internet commentators note,
note, American
jurisprudence is
jurisprudence is "an
an imperfect
imperfect fit,
fit, as the American
as the American approach
approach to
to personal
personal jurisdiction
jurisdiction
has its
has its roots
roots in
in that
that country's
countrys constitutional
constitutional requirement
requirement for
for minimal
minimal contact
contact in order
to establish
to establish due
due process.:
process.": Teresa
Teresa Scassa & Michael Deturbide, Electronic
Commerce and Internet Law in Canada, 2nd ed (Toronto,
Commerce (Toronto, Ontario:
Ontario: CCH
CCH Canadian
Limited, 2012)
Limited, 2012) at 602 [Scassa & Deturbide].
[42]
[42] Canadian courts have widely
Canadian courts widely considered the United
United States
States District
District Court
Manufacturing v. Zippo
decision in Zippo Manufacturing Zippo Dot
Dot Com
Com Inc., 952 F Supp
Supp 119
119 (WD Pa
1997) [Zippo]: Braintech,
Braintech, Inc.
Inc. v. Kostiuk, 1999 BCCA 169 [Braintech], Pro-C Ltd. v.
Computer City Inc., [2000] O.J.
Computer O.J. No. 2823 (S.C.J.), Wiebe v. Bouchard et al., 2005
BCSC 47.
[43]
[43] The plaintiff
plaintiff in Zippo is a Pennsylvania
Pennsylvania corporation that
that manufactures
manufactures Zippo
lighters. ItIt claimed that
lighters. that the
the defendant,
defendant, a California corporation
corporation that
that operated an
under the
internet news service and website under
internet the domain
domain names
names "ZippoNews.com",
ZippoNews.com,
Zippo.com and
"Zippo.com" and "Zippo.net",
Zippo.net, infringed
infringed its
its trademark. The defendant's officers,
defendants officers,
internet servers were located
employees, and internet located in
in California and itit had
had no
no offices,
offices,
Pennsylvania. Pennsylvania
employees, or agents in Pennsylvania. Pennsylvania residents accessed the
the
defendants website, signed
defendant's signed up,
up, and received
received a news
news message service. Three
thousand of the
thousand defendants 140,000
the defendant's 140,000subscribers
subscribers world-wide
world-wide were
were Pennsylvania
Pennsylvania
residents. Contracts
residents. Contracts between users
users in
in Pennsylvania
Pennsylvania and
and the
the defendant
defendant were entered
into on the website.
into
-- 13
13 --
[44]
[44] The issue was whether Pennsylvanian's
was whether Pennsylvanians long-arm
long-arm statute
statute could
could "reach"
reach the
the
in California and exercise
defendant in exercise personal
personal jurisdiction
jurisdiction over it. As in Van Breda
and Thumbnail, the Court concluded
concluded that
that being able to access a passive website
insufficient basis
was an insufficient basis for
for the
the state
state where
where the
the website was accessed to assert
(CanLII)
jurisdiction.
[45]
[45] However, the
the Court
Court found
found it had jurisdiction
jurisdiction because
because the
the defendant
defendant had
subjected itself to Pennsylvanias jurisdiction by conducting
Pennsylvania's jurisdiction conducting electronic
electronic commerce in
Pennsylvania through
Pennsylvania through its interactive
interactive website.
[46]
[46] In Scassa & Deturbide at 604,
604, the
the authors
authors note
note that in the years since
since Zippo,
American courts
American courts began
began to
to feel
feel uncomfortable
uncomfortable with
with the
the vague interactivity concept of
vague "interactivity"
moved towards
Zippo and moved towards aatest
testthat
that focussed
focussed on targeting aa jurisdiction,
on"targeting" jurisdiction, which fit
more easily in areas like
like defamation where the Zippo test was particularly
particularly
inadequate. The
The concepts
concepts of
of interactivity
interactivity and targeting
targeting are of assistance in
carries on
assessing whether Google carries on business
business in
in British
British Columbia through
through its
websites.
[47]
[47] Google submits
submits that it merely offers a passive
passive website to
to residents
residents of
of British
British
the internet.
Columbia who wish to search the internet. ItIt argues
argues that
that its
its programs
programs automatically
automatically
search results
generate search results without
without Google
Google being
being actively
actively involved
involved in
in the particular
particular
Paragraph 23
search. Paragraph 23of
of Google's
Googles written
written submissions
submissions state:
state:
[23] Googles internet

... Google's internet search
search engine
engine allows
allows users
users to
to enter key-words
enter key-words
and then Google generates
generates aalist
list of
of results in a specific
specific ranked order.
Googles search results
Google's search results are computer generated
are computer generated through
through the
the use
use of
of Google's
Googles
highly
highly confidential
confidential andand proprietary
proprietary algorithm
algorithmand methodology. Googles
and methodology. Google's web
web
crawler program
crawler (referred to
program (referred to as
as "Googlebot")
Googlebot) reviews
reviews the
the content
content that
that is
is
available on trillions
trillions of
ofwebpages
webpages or or URLs
URLs over
over the internet. Search results
internet. Search
are generated based
based on onthat
that content
content [within
[within seconds].
[48]
[48] I conclude
conclude that Googles internet
that Google's internet search
search websites
websites are
are not
not passive
passive information
information
sites. As a user begins to type letters or a word
type a few letters word of their query,
query, Google
anticipates the
anticipates the request and offers
offers a menu of suggested potential
potential search queries.
offerings are based on
Those offerings on that
that particular
particular user's
users previous
previous searches as well as
as the
the
keywords most commonly
phrases or keywords commonly queried
queried by all
all users.
users. As James Grimmelman
-- 14
14 --
writes in The
writes in "The Structure
StructureofofSearch
SearchEngine Law"(2007-2008)
EngineLaw (2007-2008)93
93 Iowa
IowaLL Rev
Rev 11 at
at 10-
10-
11:
11.
Search engines are

Search engines are also
also increasingly
increasingly learning from the large volumes of
accumulated.AA user's
query data they have accumulated. users history
history ofof queries
queries can
can provide
provide
(CanLII)
useful information
information about
about her
her probable
probable intentions
intentions---- for
for example,
example, whether she
tends towards navigational
navigational or transactional queries. Similarly, searchsearch engines
gain useful feedback into their
their own successes
successes andand failures by seeing which
results users click on
on or
or by
by noticing
noticing long
longstrings
stringsofofsearches
searches on
on related
related terms,
which may indicate
which may indicate that
that the
the user
user is
is having
having trouble
trouble finding
finding what
what she's
shes looking
looking
for.
[49]
[49] Google collects
collects a wide range of
of information
information as aa user
user searches,
searches, including
including the
users IP
user's address, location,
IP address, location, search
search terms,
terms, and whether
whether the user acts on the
the search
results offered
results offered by
by "clicking
clicking through
through" to
to the
the websites list.
websites on the list.
[50]
[50] In
In addition to
to its
its search services, Google
Google sells
sells advertising
advertising to
to British
British Columbia
clients. Indeed, Google entered
clients. entered into
into an
an advertising
advertising contract
contract with
with the defendants
defendants and
products up to the
advertised their products the hearing this application.
hearing of this application. Google acknowledges
it should
should not
not advertise
advertise for
for the
the defendants filed an
defendants and filed an affidavit
affidavit explaining
explaining its
inadvertent failure
inadvertent failure to suspend
suspend the
the defendants account prior
defendants' Google account prior to the hearing.
[51]
[51] Although Googles
Although Google's advertising
advertising business
business is
is marketed
marketed in
in Canada
Canada by Google
by Google
Canada, British
Canada, British Columbia residents
residents who
who wish
wish to advertise on
to advertise on Googles
Google's webpages
contract directly
contract directly with
with Google
Google and make payments directly
directly to Google.
Google. Although
Although those
contracts stipulate
contracts stipulate that
that disputes
disputes will
will be
be governed
governed by California
California law
law and adjudicated
choice of
in California courts, the "choice of laws"
laws provision
provision in
in those
those contracts
contracts does not alter
Google is
the fact that Google is carrying
carrying on
on aa business
business in
inthis
this province
province through
through advertising
advertising
contracts with British Columbia residents.
contracts
[52]
[52] The Supreme
Supreme Court
Court of
of Canada
Canadanoted
noted that
that advertising
advertising in
in aajurisdiction
jurisdiction is not
not by
itself a sufficient
sufficient connection
connection to establish territorial
territorial competence: Van Breda at
87, 114.
paras. 87, 114.But
But there
there is
isaadifference
difference between
between aacompany
company advertising
advertising its
its own
through a website or other media
services through media available
available to
to British
British Columbia residents,
residents,
business of
and engaging in the business of selling
selling advertising
advertising space on the internet
internet to other
-- 15
15 --
British Columbia.
companies in British Columbia. There
There is uncontradicted
uncontradicted evidence
evidence before me that
sells advertising
Google sells advertising to British Columbia residents, including
including the defendants.
[53]
[53] Google submits
submits that its advertising
advertising services
services are
are completely
completely separate from
from its
(CanLII)
and cannot
search services, and cannot justify
justify the Court jurisdiction over
Court assuming jurisdiction over Googles
Google's
With respect,
search services. With respect, II do
do not
not agree
agreewith
with that
that proposition
proposition for
for two reasons.
[54]
[54] First, Googles business
First, Google's business model
model is
is contextual
contextual advertising;
advertising; the
the "context"
context is the
search done
search done using
using Googles search services.
Google's search services. Ads
Ads are
are linked
linked to
to either
either the
the subject
subject
history of the
matter of the search, or the history the person searching. Google does not
not charge
users of its
its search services. Rather, itit sells space
space on
on its
its websites
websites to
to advertisers
whose ads
whose ads are
are displayed
displayed alongside
alongside the
the search
search results
results generated by aa user's
generated by users query.
query.
[55]
[55] These ads
ads can
can relate to the
relate to the topics
topics searched.
searched. For
For example,
example, ifif "Vancouver
Vancouver
lawyers is
lawyers" is searched,
searched, a
a page showing a
page showing list of
a list of Vancouver lawyers will
Vancouver lawyers will be
be generated.
generated.
At the top of the list
list aa number
number of ads show up for law firms
firms that
that have
have paid Google in
order to advertise there. Those ads
ads look
look like the other search results
results but
but are marked
by Ad..
[56]
[56] These ads
ads can
can also be
be unrelated
unrelated to
to the
the content
content of the
the search, but geared to a
particular searcher.
particular searcher. For example, if the user has in the
the past searched a retail
outlet may appear
website, ads for that retail outlet appear on the
the page
page showing
showing the
the search
search results
results
for the
for query "Vancouver
the query Vancouver lawyers".
lawyers. Google
Google can
canindividually
individually tailor
tailor the advertising
advertising
seen by aa user
user each
each time
time they
they search
search using
using the
the information
information in the
the search query and
that user's
that users own
own search
search history.
history.
[57]
[57] Google made the
the same argument
argument that its ad and search services
services are
unrelated in submissions
unrelated submissions to
to the
the European Court of Justice Spain SL and
Justice in Google Spain
Agencia Espanola
Google Inc. v. Agencia Espaola de
de ProtecciOn
Proteccin de Datos (AEPD) and Mario Costeja
Gonzlez, C-131/12 [Gonzlez].
Gonzalez, [Gonzalez]. The European
European Court
Court of
of Justice
Justice delivered
delivered judgment
judgment
on 13 May
May 2014.
2014.Its
Its reasons
reasons are
areavailable
available online
online but
but are
are not
not yet
yet published.
published. In that
that
dispute, Mr. Gonzalez
dispute, Gonzlez lodged
lodged aa complaint
complaint with the Data Protection
the Spanish Data Protection Agency
based on the
the fact that
that when
when an internet
intemet user
user entered
entered Mr. Gonzalez's name in
Gonzlezs name in the
the
-- 16
16 --
the user
Google search engine, the user would
would obtain links
links to two
two pages of a newspaper
published in
published in January
January and
and March
March of 1998 relating to attachment
1998 relating attachment proceedings
proceedings against
Gonzlez for
Mr. Gonzalez for the
the recovery
recovery of
of social
social service debts.
(CanLII)
[58]
[58] Mr. Gonzalez
Gonzlez applied
applied to
to order
order the newspaper to
to remove or alter its webpages
so that
that his
his personal
personal data
data no
no longer
longer appeared.
appeared. He also requested
requested that
that Google
Google Spain
be required
or Google be required to remove or
or conceal his
his personal data so that
that itit was not
included in search results
included results given that the attachment proceedings concerning
concerning him
been fully
had been fully resolved
resolved for
for a number
number of years reference to
years and any "reference to them
them was
was now
now
entirely irrelevant
entirely irrelevant" (para.
(para. 15).
[59]
[59] The Spanish Data
Data Protection
Protection Agency upheld Gonzlezs complaint
upheld Mr. Gonzalez's complaint
against Google Spain and Google
Google on
on the basis
basis that search engine operators
operators were
subject to
subject to data protection legislation.
legislation. Google
Google appealed that decision to the National
High Court which
which in turn
turn referred
referred the
the matter
matter to the Court of
the European Court of Justice
Justice for
preliminary rulings.
preliminary rulings. The Court of
The European Court of Justice
Justice confirmed that the promotion and
advertising space in
sale of advertising in relation to Spain the bulk
constituted the
Spain constituted bulk of
of Googles
Google's
regarded as
activity and was "regarded
commercial activity as closely
closely linked
linked to
to Google Search
Google Search"
(para. 46).
46). The
The European
European Court
Court of
of Justice
Justice concluded
concluded at
at para. 56:
[56] the activities

... the activities of the operator of the search engine [Google]
[Google] and
those of its
its establishment
establishment situated
situatedininthe
theMember
Member State
State [Google
[Google Spain]
concerned are are inextricably
inextricably linked since
since the activities
activities relating to the
advertising
advertising space constitute
constitute thethe means
means of rendering
rendering thethe search engine at
issue economically
economically profitable
profitable and
and that
that engine
engine is,
is, at
at the
the same
same time,
time, the
the means
enabling activities to
enabling those activities to be
be performed.
[60]
[60] Gonzlez concerned the protection of personal information
While Gonzalez information and
particular statutory
particular statutory provisions,
provisions, the
the analysis
analysis relating
relating to
to the
the connection
connection between
Googles advertising
Google's advertising and search functions
and search functions is
is of
of assistance.
assistance. II too
too conclude
conclude that the
two parts
parts of
of Googles business are
Google's business are inextricably
inextricably linked; neither
neither service can stand
alone.
[61]
[61] Second, whether the
the advertising
advertising activity
activity conducted
conducted in
in British
British Columbia is
is the
as the
same as the activity
activity which the plaintiff
plaintiff seeks to enjoin
enjoin is
is not
not germane
germane to the
territorial competence analysis.
analysis. The difference between the
the advertising
advertising business and
-- 17
17 --
goes to
the search business to be enjoined goes to the
the strength
strength of the connection
connection between
and British
the matter and British Columbia. It could
could thus
thus be a factor when assessing
assessing whether
whether
British Columbia is the appropriate forum, but
but itit does
does not
not affect this court's
affect this courts territorial
territorial
the Court
competence. Once the Court has in personam jurisdiction,
jurisdiction, it has it for all purposes.
(CanLII)
[62]
[62] Further,
Further, at the territorial
territorial competence stage of the analysis, the Court
Court is not
looking for
looking for the
the strongest
strongest possible connection this forum, but for a connection
connection to this connection
sufficient to
sufficient to meet
meet the requirements of the CJPTA. In Purple Echo the plaintiff
the requirements
damages for
claimed damages for alleged breaches of
of aa co-production
co-production agreement with
with
broadcaster KCTS which was licenced
KCTS which licenced to
to broadcast only
only in the
the United States,
although broadcasts
although broadcasts were
were available
available to
to viewers
viewers in
in Canada. KCTS was
Canada. KCTS was found
found to
to have
of business in British
a place of British Columbia
Columbia because
because PCPTA,
PCPTA, aa federally
federally incorporated
incorporated
Canadian corporation
Canadian corporation with an office in Vancouver,
Vancouver, solicited Canadian donations for
Canadian donations
KCTS under
KCTS under contract
contract and paid the
the money
money to
to KCTS: Purple Echo at paras. 44-46.
The Court
The Court of
of Appeal's
Appeals finding
finding that
that British
British Columbia
Columbia had
had territorial
competence turned
turned
number of
on a number of other factors as
as well,
well, but the Court
Court nonetheless
nonetheless included
included the link
link
between the parent and
the "parent" as aafactor
and its agent company as factor supporting
supporting the
the connection
connection
that parent company
between that company and
and British
British Columbia.
[63]
[63] In
In any event, II find Googles search and
find that Google's and advertising
advertising services are
inextricably linked.
inextricably
[64]
[64] II will
will address
address here Googles submission
here Google's submission that
that this
this analysis
analysis would
would give every
state in
state in the
the world
world jurisdiction
jurisdictionover
overGoogles
Google'ssearch
searchservices.
services. That
That may
may be so. But
But if
so, it flows
flows as a natural
natural consequence
consequence of Google doing business
business on a global scale,
not from
from a flaw in the
the territorial
competence analysis.
analysis. As Janet Walker writes in
Canadian Conflict
Castel & Walker: Canadian Conflict of
of Laws,
Laws, loose-leaf, 6 ed (Markham, Ontario:
Ontario:
LexisNexis, 2005),
LexisNexis, ch 11
2005), ch 11 at
at27,
27,aalegal
legalperson
personsuch
such as
asaacorporation
corporation can
can be
be subject
subject
multiple jurisdictions
to multiple jurisdictionswhether
whether because
because it is resident
resident there through
through registration,
registration, or
because itit is
because is carrying on
on business
business in
in that
that jurisdiction.
jurisdiction. Further, the
the territorial
territorial
analysis would
competence analysis would not
not give
give every
every state
state unlimited
unlimited jurisdiction
jurisdiction over Google;
-- 18
18 --
jurisdiction will be confined to issues closely associated with the

the forum
forum in
accordance with private international law.
[65]
[65] In summary on this issue, I conclude that the Court has territorial competence
(CanLII)
over Google on this application.
2.
2. Is British Columbia
Is British Columbia the appropriate forum?
the appropriate forum?
[66]
[66] Should the
Should the Court decline to exercise its jurisdiction on the
the basis that
that there
there is
another, more convenient
another, convenient forum in which to adjudicate this application? As
As the
Supreme Court of Canada observed
observed in Van Breda at para. 101, a clear distinction
must be drawn between the
the existence
existence and
and the
the exercise
exercise of jurisdiction.
jurisdiction. The
The former
former is
concerned generally with preventing jurisdictional overreach and respecting the
authority of foreign courts, the latter is concerned with fairness to the parties and
authority
Although
efficient resolution of the dispute: Van Breda at paras. 22, 104-105. Although
Google did not frame its argument
argument expressly
expressly in terms
terms of forum non conveniens, it
Therefore, the
asserted that California is a better forum to hear this application. Therefore,
issue must be addressed.
[67]
[67] Once jurisdiction is established, the burden falls on
on Google to show
show why
why the
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
alternative forum
forum is
clearly more appropriate and that, in
in light of
of the characteristics of
of the
the alternative
alternative
efficiently there.
forum, the matter can be adjudicated more fairly and efficiently
[68]
[68] In British
In British Columbia
Columbia the
the Courts discretion to
Court's discretion to stay
stay the
the proceeding in favour
proceeding in favour of
of
another state's
another states jurisdiction
jurisdiction is grounded
grounded in s. 11(1)
ins. of the CJPTA:
11(1) of CJPTA:
11 (1)
(1) After
Afterconsidering
consideringthe
the interests
interests of
of the parties to a proceeding and the
ends of justice, a court may
may decline to exercise
exercise its
its territorial
competence in
the proceeding on the ground
ground that
that a court of
of another
another state
state is
is aa more
appropriate forum in which to hear the proceeding.
[69]
[69] Googles submissions in
Google's submissions in support
support of
of a
a stay can be
stay can be grouped into three
grouped into three main
main
arguments:
-- 19
19 --
(i)
(i) The Court should
should decline jurisdiction
jurisdictionbecause
because Google
Google has agreed to
block specific websites from its search results
results and the
the plaintiffs
plaintiffs have
of that
failed to avail themselves of that out-of-court
out-of-court remedy;
(CanLII)
(ii)
(ii) Google has aa stronger
stronger connection
connection to California; and
(iii)
(iii) An order made by aa California
California court
court can be enforced.
enforced.
I will deal
deal with each
each submission
submission in
in turn.
turn.
(i) Is an out-of-court remedy available to

to the
the plaintiffs?
plaintiffs?
[70]
[70] Google submits
submits that
that the plaintiffs have
the plaintiffs have aa remedy available to them without
without a
court order but have failed
court failed to
to avail
avail themselves
themselves of
ofit.
it.Although
Although this
this isisnot
not strictly
strictly
forum, it is convenient
speaking another forum, convenient to
to address
address the
the question
question here.
here. After Google
of this
received notice of this Court's
Courts orders in the fall of 2012
2012and
andthe
theplaintiffs
plaintiffs filed
filed this
this
application, Google agreed to
application, to take
take down the defendants'
down the defendants websites
websites that
that the
the plaintiffs
plaintiffs
identified by way of a specific URL.
identified
[71]
[71] The plaintiffs
plaintiffs initially
initially agreed
agreed to
to try
try that
that route
route and
and adjourned
adjourned the
the application
generally to do so. They provided
generally provided Google
Google with
with specific
specific URLs
URLs from
from which
which the
the
defendants were selling
defendants selling the GW1000 inviolation
GW1000 in violation of
of the Court's
Courts orders. Google
voluntarily blocked
voluntarily blocked 345 This is
345 websites from its search results. This is referred
referred to
to as
as "taking
taking
down websites.
down" websites.
[72]
[72] However, the
the process waswholly
processwas wholly unsatisfactory
unsatisfactory from
from the
the plaintiffs'
plaintiffs
perspective. In place of the
the de-indexed websites, aa whole
whole host of new websites
rankings to
moved up the rankings to take their place. Websites
Websites can
can be
be generated
generated automatically,
automatically,
resulting in an endless game
resulting game of whac-a-mole with
of "whac-a-mole" with the
the plaintiffs
plaintiffs identifying
identifying new
Google deleting
URLs and Google deleting them. The
The plaintiffs
plaintiffs argue that
that any scheme that depends
on the deletion of individual URLs is
is ineffective.
ineffective.
[73]
[73] The insufficiency
insufficiency of the
the voluntary
voluntary take-down of specific websites was
Regional Court
recognized by the Regional Court of
of Paris
Paris in
in the
the unreported
unreported decision
decision Trib gr inst
Paris, 6 November
Pads, November 2013, Max Mosely v. Google France SARL
SARL and Google Inc.[Max
-- 20
20 --
Mosely]. Mosely had been

been surreptitiously
surreptitiously videotaped by the News of
of the
the World while
while
engaging in sexual activity with
sexual activity with several
several partners.
partners. The newspaper published
published the
made others
images and made others available
available on
on its
its website. In
In aa French
French criminal
criminal proceeding,
proceeding,
found guilty
the newspaper was found guilty and ordered to cease publishing
publishing the
the images.
(CanLII)
However, the images
images remained
remained widely
widely available
available by
by searching
searching through
through Google
Images.
[74]
[74] Mosely asked Google to
to stop
stop indexing
indexing the pictures
pictures with reference to specific
He made
URLs. He mademany
many such
such requests
requests and
and Google
Google honoured
honoured all
all of
of the
the requests
requests but
images continued
the images continued to be indexed through
through new URLs. After
After two
two years of
of this
this
process, Mosely asked Google to prevent
prevent the images
images from
from being indexed at all.
refused and Mosely applied for
Google refused for an injunction
injunction and
and damages.
damages. The Court
observed that itit was
was impossible
impossible for
for the
the plaintiff
plaintiff to have his
his right
right enforced by
by using
using
only the
only procedures made available by Google (English
the procedures (English translation
translation of Max Moselyat
Mosely at
10).
[75]
[75] The inadequacy of this
this approach in the present
present matter
matter is heightened
heightened by
Googles removal
Google's removal of
of specific
specific URLs
URLs from
from only
only those
those searches
searches initiated
initiated through
through
aa fact
Google.ca fact that came to
that came to the
the plaintiffs'
plaintiffs attention
attention only
only after
after cross-examining
cross-examining
Smith on his
Mr. Smith his affidavit
affidavit on
on May
May 21, 2013. As aa result,
2013. As result, the
the defendants'
defendants blocked
blocked
searches are
websites appear when searches are conducted
conducted from any country
country other
other than
than Canada,
Canada,
search is
or when a search is conducted
conducted within
within Canada using
using a Google
Google website
website other
other than
than
www.google.ca.
[76]
[76] The majority
majority of GW1000 sales occur
GW1000 sales occur outside
outside Canada. Thus, quite
Canada. Thus, quite apart
apart from
from
the practical problem of endless website iterations,
iterations, the
the option Google proposes is
equivalent to the order now sought
not equivalent sought which
which would
would compel Google to remove the
defendants websites
defendants' websites from
from all
all search
search results generated by any of
results generated of Googles
Google's websites
worldwide. I therefore conclude
worldwide. conclude that the plaintiffs
plaintiffs do
do not
not have
have an out of court
court remedy
to them.
available to
-- 21
21 --
(ii) Does
(ii) Does Google
Google have
have a strongerconnection
a stronger connectionto
toCalifornia?
California?
Google
[77] Google is is a Delaware
a Delaware companythat
company thatisisregistered
registeredand
andhas
hasits
its head
head office
office in
California. The CJPTA, like the common law itit codified, recognizes that the ordinary
ordinary
(CanLII)
of aa person
residence of person within
within aa state
state is
is aastrong
strong connecting
connecting factor
factor justifying
justifying the
assumption of jurisdiction
assumption jurisdictionover
overthat
thatperson.
person. Residence
Residence for
for aa legal
legal person such
such as
as a
corporation is established
corporation established under
under s. 7 of
of the CJPTA only if:
(a) the
the corporation has or is required by
by law to have a registered
registered office
in British Columbia,
(b) pursuant to law, it
(i) address in
(i) has registered an address in British Columbia at which
process may be served generally, or
(ii)
(ii) has nominated an agent in
in British Columbia upon whom
process may be served
served generally,
generally,
(c) it has a place
place of
of business
business in British Columbia,
Columbia, or
(d) its central management is exercised
management is exercised in
in British
British Columbia.
None
[78] None of of these
these subsectionsapply
subsections applytotoGoogle
GoogleininBritish
BritishColumbia,
Columbia, but
but all
all pertain
pertain
California. Googles
in California. Google's internet
intemet search
search services
services are
are said
said to
to operate
"operate out
outof its head
of its
office.
I accept
[79] I accept that
that Google
Google has
has a strongpresence
a strong presenceininand
andconnection
connection to
toCalifornia.
California.
But the question is
the question is "which
which forum
forum is
is more
more appropriate?
appropriate?" not
not where
"where does
does Google
reside? As
reside?" As the
the Supreme
Supreme Court
Court of
of Canada observed in Van Breda at para. 109,
Canada observed the
109, the
should not exercise its discretion in favour
Court should favour of a stay solely because
because itit finds
finds that
forums exist in other states:
comparable forums
[109] ... It is
It is not not a matter
a matter ofof flippinga acoin.
flipping coin.AAcourt
courthearing
hearingan anapplication
application
for a stay of proceedings must must find that a forum exists that is in a better
position
position to dispose fairly fairly and efficiently
efficiently of
of the litigation.
litigation. But
But the
the court must be
mindful
mindful that
that jurisdiction
jurisdictionmay may sometimes
sometimes be established on a rather low
threshold under the conflicts
conflicts rules. Forum non conveniens may play an
important role in identifying
identifying aa forum thatthat is
is clearly
clearly more appropriate for
disposing
disposing of of the
the litigation
litigation and
and thus
thus ensuring
ensuring fairness
fairnessto tothe
the parties
parties and
and aa more
efficient process
process for resolving their dispute.
-- 22
22 --
[80] The
[80] Thefactors
factors I must consider in deciding whether
whether California is the more
appropriate forum
forum in which to hear this
this application include
include those
those set out
out in s. 11(2) of
the CJPTA:
CJPTA:
(CanLII)
11 (2) A court, in deciding the question
question of whether
whether itit or aa court
court outside British
Columbia is the more appropriate forum in which to to hear
hear aa proceeding, must
consider the circumstances
circumstances relevant
relevant to the proceeding,
proceeding, including
including
(a) the comparative convenience and expense for the partiesparties to the
proceeding and for their witnesses,
witnesses, in
in litigating
litigating in the court or in any
alternative
alternative forum,
(b) the law to be applied to
to issues in the proceeding,
(c) the desirability
desirability of avoiding multiplicity
multiplicity of
of legal
legal proceedings,
(d) the desirability of avoiding conflicting decisions in different courts,
(e) the enforcement of an eventual judgment, and
(f) the fair and efficient
efficient working
working of
of the
the Canadian
Canadian legal
legal system
system as
as a
whole.
[81] I will
[81] I willaddress
address each of these factors
factors in
in turn.
turn.
(a)
(a) Comparative convenience
Comparative convenience and
and expense
expense
This
[82] This factorisisofoflimited
factor limitedsignificance
significance since
since "the
the proceeding"
proceeding in
in this
this case
case is
is a
injunction. Google has already incurred the expense
single application for an interim injunction.
of argument and appearance here. I consider it nonetheless
nonetheless because it could
could still be
a factor with respect to enforcement
enforcement if I grant the order sought.
This
[83] This factor
factor encompassesthe
encompasses theCourt's
Courtsconcern
concernfor
forprotecting
protecting the
the respondent
respondent
from unfairly inconvenient litigation. Google is a highly sophisticated entity with
unfairly inconvenient
annual revenues
annual revenues of $50 billion and 54,000 employees worldwide. Because
Because of the
nature of its business, Google often finds
emergent nature finds itself at the
the cutting
cutting edge of legal
issues in many different
different fields of law all over
over the
the world,
world, including
including in the
the areas of
defamation, copyright,
copyright, privacy and competition law. As a result
result Google has an in-
house legal department of 700 people, including dedicated product counsel, national
and regional counsel, and litigation counsel.
-- 23
23 --
[84] In contrast,
contrast, the primary corporate plaintiff
plaintiff is a small
small British
British Columbia
which is
company which is incurring
incurring significant
significant financial
financial losses
losses due
due to
to the defendants
the defendants'
conduct. I find this
conduct. this factor
factor favours
favours British
British Columbia
Columbia as the
the more appropriate forum.
(CanLII)
(b) The
The law
law to be applied
applied to
to issues
issues in
in the
the proceeding

(b) to be proceeding
This
[85] This is is a neutralfactor;
a neutral factor;inineither
eitherforum
forumlocal
locallaw
lawwould
would apply.
apply. Google
Google
that theft
acknowledges that theft of
of intellectual
intellectual property rights
rights would
would be actionable in
California, but I have no evidence before me
me of
of the
the applicable
applicable law
law in
in California
California
governing the granting
governing granting of injunctions
injunctions against non-parties.
(c)
(c) The
The desirability of avoiding
desirability of multiplicity of
avoiding multiplicity of proceedings
proceedings
The
[86] The plaintiffs
plaintiffs' applicationfor
application forananinterim
interiminjunction
injunction against
againstGoogle
Google is
is founded
founded
on the
on the plaintiffs'
plaintiffs actions
actions against
against the defendants and the
the defendants the Court's
Courts inherent
inherent jurisdiction
jurisdiction
to issue orders to
to protect
protect the
the integrity
integrityof
ofits
itsown
ownprocess,
process,as
asrecognized
recognizedin
ins.
s. 39(1)
39(1) of
and Equity
the Law and Equity Act, R.S.B.C.
R.S.B.C. 1996,
1996,c.c.253.
253.The
Theplaintiffs
plaintiffs seek
seekthe
the injunction
injunction to
prevent the
prevent the defendants
defendants from
from continued
continued and
and flagrant
flagrant breaches
breaches of
of this
this Court's
Courts orders
orders
in the underlying
underlying action.
Setting
[87] Setting aside
aside forfor themoment
the momentthe
thequestion
questionofofwhether
whetherthis
thisapplication
application could
could be
made in
made in California
California without
without the
the underlying
underlying action
action to
to support
support it, it would
would at aa minimum
minimum
require the plaintiffs
plaintiffs to
to commence
commence a second proceeding in California. This factor
favours British Columbia.
therefore favours
(d)
(d) The desirability of
The desirability of avoiding conflicting decisions
avoiding conflicting decisions in
in
different
different courts.
courts.
This
[88] This factor
factor is is
ofof littleassistance
little assistanceon
onthis
thisapplication
applicationas
asthere
there is
is aasingle
single issue,
issue,
whether the injunction
whether injunction should
should be granted, which is
is unlikely
unlikely to be considered in both
courts.
(e)
(e) Fair and
Fair and efficient
efficient working
working of
of the
the Canadian
Canadian legal
legal system
system
This
[89] This factor
factor isis
ofoflittle
littleassistance
assistanceon
onthe
the application
application before
before me.
-- 24
24 --
(f)
(f) The
The enforcement
enforcement of
of an
an eventual
eventual judgment
judgment
[90]
[90] This
This is the main ground
ground upon which
which Google asserts that California is the more
appropriate forum.
forum. How, Google asks, can this Court force
force Google to
to take steps
outside of British Columbia?

[91]
[91] Google raises
raises aa good
goodpoint.
point. Traditionally,
Traditionally, courts
courts have
have not
notgranted
granted injunctive
injunctive
relief against defendants who
who reside
reside outside
outside the
the jurisdiction.
jurisdiction. In Barrick Gold at
74, the
para. 74, the Ontario
Ontario Court
Court of
of Appeal
Appealexplained
explained this
this general
general rule
rule by
by quoting
quoting from
from
Sharpes text
Robert J. Sharpe's text Injunctions and Specific
Specific Performance:
Performance:
Claims for injunctions against foreign parties present jurisdictional constraints

which are not encountered in the case of claims for money judgments. In In the
case of a money claim, the courts need not limit assumed
assumed jurisdiction to
cases where enforceability
enforceability is ensured. Equity, however, acts in personam
and the effectiveness of an equitable
equitable decree depends
depends upon
upon the control which
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
avoided making orders which
which cannot be enforced. The result is that the
courts are reluctant to grant injunctions against parties not within the
permitting service ex juris in
jurisdiction and the practical import of rules 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"
jurisdiction" will usually be physically present within
the jurisdiction to allow ordinary service. [Italics in original;
original; underlining
added.]
[92] On this basis the Court of Appeal in United Services Funds (Trustees of) v.
Richardson Greenshields of Canada Ltd. (1988), 23 B.C.L.R. (2d) 1, 1988
Richardson 1988 CanLII
CanLII
2960 (C.A.)
2960 (C.A.)held
heldthat
thataacourt
courtshould
should not
not grant
grant an
anorder
ordercompelling
compelling an
anout-of-country
out-of-country
individual to
individual to attend for examination for
for discovery.
[93]
[93] However, exceptions to the
However, there are exceptions the general
general rule.
rule. For example, in Barrick
granted aa permanent
Gold the Ontario Court of Appeal granted permanent injunction
injunction against aa British
British
Columbia resident in a defamation proceeding.
[94]
[94] An injunction
An injunction is
is an
an equitable remedy and
equitable remedy and is
is enforced
enforced through
through the
the courts'
courts
contempt power. Generally, that
contempt that power
power is
is exercised
exercised through
through fines and imprisonment.
fines and imprisonment.
-- 25
25 --
penalties are
These penalties are more
more easily
easily invoked
invoked when
when aaperson
person resides
resides within
within the courts
the court's
jurisdiction so
jurisdiction so that
that either the person or
either the his assets
or his assets can be "seized".
can be seized.
[95]
[95] But these not the only
these are not only remedies available to
to the
the Court. In Bea v. The
(CanLII)
Owners, Strata Plan LMS2138, 2014
Ovviers, 2014 BCSC
BCSC826,
826,Grauer
GrauerJ.J.cites
citeswith
with approval
approval the
the
following words
following words of
of the
the Chief
Chief Justice
Justice of
of the
the Supreme
Supreme Court
Court of Newfoundland
Newfoundland and
Labrador:
The law of contempt is found

found in the
the development
development of the common law. That
law is always evolving.
evolving. The state of its development is not frozen at any
particular
particular date in judicial
judicial history.
history. So
So also, with respect to the types of penalty
which a court may
may employ to to vindicate its contempt power. Differing penalties
may bebe creatively
creatively employed,
employed, either
either singly
singly or
or in
in combination,
combination, in new
new situations
situations
to achieve the purposes behind the exercise
exercise of the contempt power.
[96]
[96] For example, this
this court may dismiss or refuse
refuse to hear proceedings
proceedings brought
brought by
violating a court order: Breberin v. Santos, 2013 BCCA 385 at
a party who is violating
para. 14; Schmidtv.
Schmidt v. Wood,
Wood, 2012 ABCA 235 at para. 5.
[97]
[97] barring a person in contempt
While barring contempt from making use of the process
Courts process
the Court's
be aa smaller
may be smaller stick
stick than
than imprisonment,
imprisonment, it is nonetheless of enforcement
nonetheless a means of enforcement
particularly so when a non-resident
of some significance. That is particularly non-resident corporation
corporation carries
on business
business in British
British Columbia
Columbia and
and may be sued or wish to sue in these courts.
courts.
Although Googles contracts
Although Google's contracts with
with advertisers
advertisers in
in British
BritishColumbia
Columbia are
are by the
the choice of
provisions to
laws provisions to be
be determined
determined in California,
California, other
other causes of action in defamation
tort could
or tort could well
well arise in British
British Columbia
Columbia (see
(see for example Trkulja v. Google (No 5),
VSC533,
[2012] VSC 533,an
anAustralian
Australian defamation
defamationcase
casewhich
which raised
raisedissues
issues of
of whether
whether
publishes the
Google "publishes" the material displayed on its search engines).
(iii) AnAn
(ii:) order
order madeininCalifornia
made Californiacan
canbe
be enforced
enforced
[98]
[98] Google argues that the
the plaintiffs
plaintiffs should
should apply
apply in
in California
California because
because a
California court
California court order
order can
can be
be enforced
enforced against
against Google
Google in
in that
that state.
state. I accept that
that a
California court
court order is easier to enforce in California than a British
British Columbia court
related to
order. However, related to the
the assertion
assertion that
that California
California is therefore
therefore a better
better forum
forum is
-- 26
26 --
the question of whether

whether aa California
California court
court could
could or would
would order the
the interlocutory
interlocutory relief
plaintiffs.
sought by the plaintiffs.
[99]
[99] Google asserts that the plaintiffs
plaintiffs can make
make this
this application
application in California.
(CanLII)
However, Google
Google bears
bears the
the burden
burden of
of proof
proof at this stage of the analysis
analysis and has
provided no support
support for
for that
that proposition.
proposition. Indeed,
Indeed, neither
neither party alluded
alluded to or
Although I need go
attempted to prove California law. Although go no
no further
further given where the
burden of proof lies, Canadian
Canadianjurisprudence
jurisprudence offers
offers insight
insight into
into the
the complexity
complexity of
of this
this
question.
[100] Assuming the plaintiffs

[100] plaintiffs could file an originating
originating application in California, they
would be asking
would asking for
for aa standalone
standalone interim
interim injunction
injunction with
with no
no underlying
underlying substantive
substantive
relief sought
sought in
in California.
California. The
The Supreme
Supreme Court
Court of
of Canada has followed
followed the
the approach
by the UK
taken by UK House
House of
of Lords
Lords and
and determined
determinedthat
that an
aninterlocutory
interlocutory injunction
injunction can
be issued in such circumstances, but only
only if two conditions
conditions are satisfied:
Employees Canadian
Brotherhood of Maintenance of Way Employees Canadian Pacific
Pacific System
Canadian Pacific
Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R.
S.C.R. 495.
495.First,
First,the
theissuing
issuing court
court
jurisdiction simpliciter, and second,
must have jurisdiction second, the
the substantive
substantive underlying
underlying dispute
dispute
must be a cause
must cause of
of action
action recognized
recognized by
by the
the issuing
issuing court. As II noted,
noted, II have
have nothing
nothing
to say whether
before me to whether California courts
courts have
have adopted the same approach.
[101] Furthermore,
[101] Googles assertion
Furthermore, Google's assertion that
that the
the order
order sought
sought in
in this
this court
court could
could not
not
in California ignores
be enforced in ignores the
the potential
potential for
for the plaintiffs
plaintiffs to sue on aa British
British
court order in California. That is
Columbia court is aa distinct
distinct legal step from applying
applying for a
standalone order in California, which Google contends is the appropriate
standalone appropriate procedure.
[102] Google submits

[102] submits that
that the
the plaintiffs
plaintiffs cannot
cannot enforce
enforce aaBritish
British Columbia
Columbiainjunction
injunction
in California. Google relies on Ingenium Technologies
Technologies Corp.
Corp. v. McGraw-Hill
2005 BCSC
Companies, 2005 BCSC465
465atatpara.
para.28,
28,ininwhich
whichPitfield
PitfieldJ.,
J.,on
onaawithout
without notice
notice
[a]n injunction
application stated that "[a]n injunction is
is not
not a form of judgment
judgment or order on which
[the plaintiff]
[the plaintiff] could
could realistically
realistically sue
sue for
for recognition
recognitionand
and enforcement
enforcement on a timely
basis, if
basis, if it
it would
would be
be able
able to
to sue
sue on such judgment
on such judgment at
at all.
all". I conclude
conclude from
from a review of
-- 27
27 --
case law
the case law that
that there
there are
are situations
situations in which
which a party can sue for enforcement
enforcement of a
foreign interlocutory
interlocutory order.
order. Certainly,
Certainly, the common law
law is
is evolving
evolving in
in that direction.
direction.
[103] The Ontario Court

Court of
of Appeal
Appeal enforced
enforced aa foreign
foreign interlocutory
interlocutory order in Cavell
(CanLII)
Insurance Co. Ltd. (Re) (2006), 80 O.R. (3d)
(3d) 500,
500, 269
269 D.L.R.
D.L.R. (4th)
(4th) 679
679 (C.A.).
(C.A.). The
The
British Columbia
Columbia Court
Court of Appeal addressed
addressed the
the trend
trend towards
towards enforcing
enforcing foreign non-
judgments in Minera
monetary judgments Minera Aquiline
Aquiline Argentina SA v. IMA
IMA Exploration
Exploration Inc., 2007
BCCA 319 at para. 92:
[92] academicopinion
... academic opinion is is consistent
consistent with the general trend trend ofof private
international
international law.law. The
The Supreme Court of of Canada
Canada has recognized that the law
has evolved to allow allow courts to dealdeal with
with disputes
disputes arising in an increasingly
interdependent
interdependent globalglobal economy. In its its recent jurisprudence,
jurisprudence, the the Supreme
Supreme
Court
Court has reasoned that,
has reasoned that, in
in the
the proper
proper case,
case, the
the limits
limits of
of the courts
the courts'
jurisdiction should
jurisdiction should be be expanded,
expanded, not narrowed. In Pro Swing Inc. (at
paras. 78-79),
78-79),McLachlin
McLachlin C.J.C.
C.J.C.(in (indissent,
dissent,butbut not
not on
on this
this issue)
issue) referred to
Morguard Investments Ltd. Ltd. v.
v. De
De Savoye, [1990] 3 S.C.R. 1077 at 1098, Hunt
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.
S.C.R. 416416atatpara.
para.27,27,for
forthe
therationale
rationalefor forextending
extending the thelimits
limits of
of the
the court's
courts
jurisdiction to
jurisdiction to enforce
enforce foreign
foreign non-monetary
non-monetary judgments.
judgments. She She commented
commented that
comity, order and fairness do not exclude exclude thethe courts
courts from
from enforcing foreign
non-monetary judgments, and in in the
the context
context of modern
modern private
private international
international
law, may
may require it. The The majority
majority of the Court in Pro Swing Inc. concluded that
was not the right case case to
to extend the the jurisdiction,
jurisdiction, but all of the justices agreed
that the
that the "time
time isis ripe
ripe to
to review
review thethe traditional
traditional common
common law law rule
rule" (para.
(para. 15) in
light
light of
of changing
changing global
global commercial
commercial realities.
[104] Finally, that Google

Finally, I note that Google objects
objects to
to British
British Columbia
Columbia retaining
retaining jurisdiction
jurisdiction
the order
because the order sought
sought would
would require Google
Google to
to take
take steps
steps in
in relation
relation to
to its
That objection
websites worldwide. That objection is not resolved
is not resolved by
by "going
going to
to California".
California. If the
involves worldwide
order involves worldwide relief,
relief, aa California court
court will
will be
be no
no more appropriate a
forum than
forum than British
British Columbia
Columbia to
to make
make such
such an
an order. Even if the order can be
construed more narrowly
construed narrowly as requiring
requiring Google
Google to
to take steps at the site where the
the
computers controlling
computers controlling the
the search
search programs
programs are
are located,
located, Google has not established
those computers
that those computers are located in California, or that
that they
they can only
only be
reprogrammed there.
[105] As the Court of Appeal observed in Olney v. Rainville, 2009 BCCA 380 at
27,"What
para. 27, What isisessential
essential is
is that
that the
the taking
taking of
of jurisdiction
jurisdiction be consistent
consistent with order
-- 28
28 --
and fairness."
and fairness. I conclude
conclude on this
this issue
issue that
that Google has not established that
California is a more appropriate forum
forum than
than British
British Columbia for
for adjudicating
adjudicati ng the
plaintiffs application
plaintiffs' application for
for an
an interim
interim injunction
injunction against
against Google.
(CanLII)
3. Should the
the order sought be
be granted?

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

[107] that the
the Court does not
not have
have the authority
authority to
to make
make an order of
sought. In
the kind sought. issue is
In issue is whether
whether the Court has
the Court has "subject
subject matter
matter competence.
competence". The
plaintiffs and
plaintiffs and Google
Google agree
agree that
that the
the type
type of
of order
order II am asked to make has never
before been made by aa Canadian
Canadian court.
court.
[108] Google asserts that the Court lacks subject

[108] subject matter competence for two
two main
reasons: first,
reasons: first, because
because the
the order
order is
is sought
sought against a non-party;
non-party; second, because it
would require
would require the Court
Court to make an order with worldwide
worldwide effect. The latter
latter objection
objection
may sound like an issue more properly addressed at the territorial
competence stage
of the analysis. the question
analysis. However, the question of
of whether
whether the
the Court
Court has
has territorial
territorial
to hear the
competence to the application
application because
because of
of its
its connection
connection to
to the
the persons
persons or
or facts
involved is distinct
involved distinct from
from the
the question
question of
of whether,
whether, in
in the
the words
words of
of s. 39 of the Law and
Equity Act, it is just
"just or
or convenient
convenient"that
thatthe
the order
order sought
soughtshould
shouldbe
be made
made to enjoin
enjoin or
mandate the
the particular
particular conduct.
conduct.
(a)
(a) Can an
Can an order
order be
be made against a
made against a non-party?
non-party?
[109] Google submits

[109] submits that
that as a general rule aa Court
Court does
does not
not have
have authority
authority to
an order
make an order against
against aa non-party
non-party who
who owes
owes no
no duty
duty to
to the
the plaintiff.
plaintiff. Google
are two
acknowledges there are two exceptions
exceptions to
to that
that rule, but argues that neither
this case.
exception applies to this
[110] The first exception

[110] exception arises when
when a non-party
non-party with knowledge
knowledge of a court order
deliberately disobeys it and
and thereby Courts authority.
thereby deprecates the Court's authority. This exception
-- 29
29 --
Lindley L.J. in Seavterd

was described by Lindley Seaward v. Paterson, [1897] 1 Ch.
Ch. 545 (C.A.) at
555-556:
A motion to commit a man man for

for breach
breach of of an
aninjunction,
injunction, which
which is technically
wrong unless he is bound by the injunction, injunction, is one thing;
thing; and a motion to
(CanLII)
commit a man man for contempt of Court, not not because he is bound by the
injunction
injunction by by being
being aa party
party to
to the
the cause,
cause, butbut because he is conducting himself
so as to obstruct the course of justice, is another and totally different thing. In
the one case
case the the party
party who
who is
is bound
bound by by the injunction
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 case the Court
Court will
will not allow its process to be
set at naught and treated with contempt. In the one case case the person
person who is
interested in enforcing the order enforces it for his own benefit; benefit; in the other
case, if the order of the Court has been
case, been contumaciously
contumaciously set at naught the
offender cannot square it with with the person who has obtained the order and
save himself from the consequences
consequences of of his act. The
The distinction
distinction between the
two kinds
kinds of of contempt is is perfectly
perfectly well
well known,
known, although
although in insome
some cases
cases there
may be be aa little
little difficulty
difficulty in
in saying
saying onon which
which side
side of
of the
the line
line aa case
case falls. As to
jurisdiction, ifif the
the jurisdiction, the facts
facts are
are of
of the character I have stated,stated, notwithstanding
notwithstanding
the arguments of Mr. Seward Seward Brice,
Brice, II cannot
cannot bring
bring myself to entertain any
difficulty
difficulty about it.
contempt exception,
this "contempt"
[111] Under this the Court's
exception, the Courts objective
objective is
is not
not to
to further
further the
the plaintiffs,
interests of the plaintiffs, but
but to
to uphold
uphold its
its authority.
authority.
[112] The plaintiffs argue

The plaintiffs that after
argue that after Google
Google received
received notice
notice of
of this
this Court's
Courts orders
orders
against the defendants,
defendants, it should
should not
not have
have allowed the defendants
allowed the defendants' websites
websites to
to be
be
displayed in
displayed in Googles search results.
Google's search results. The plaintiffs
plaintiffs argue that
that this
this amounts
amounts to aiding
and abetting
and abetting the
the defendants'
defendants contempt
contempt and
and is comparable to Greenpeace Canada v.
MacMillan Bloedel
MacMillan Bloedel Ltd.
Ltd. (1994), 96 B.C.L.R. (2d) 201, 1994 CanLII (C.A.), affd
CanLII 943 (C.A.), affd
MacMillan Bloedel
MacMillan Bloedel Ltd.
Ltd. v Simpson, [1996] 2 S.C.R. 1048.
1048.In
In that
that case
case the
the Court
Court
an injunction
granted an injunction preventing
preventing the
the defendants and all
all persons
persons having
having notice
notice of the
physically obstructing
order from physically obstructing the
the plaintiffs logging operations.
plaintiffs logging operations. Logging
protestors who
protestors who were
were not
not named
named as defendants
defendants protested
protested that the
the order was
J.A. rejected
overbroad. Macfarlane J.A. rejected that
that notion,
notion, citing
citing with
with approval
approval at
at para. 44
44 the
the
following words
following words from
from Robert
Robert J. Sharpes text Injunctions and Specific Performance:
Sharpe's text Performance:
ItIt cannot be objected that the the net

net of
of liability
liability is cast too wide where
where the
the plaintiff
plaintiff
is able to show that the non-party has deliberately
deliberately agreed to flout
flout the order
order at
the instigation
instigation of
of the
the defendant.
defendant. However, the court must be cautious not to
hold in contempt
contempt a party
party who acts independently
independently of of the
the defendant,
defendant, and who
may exercise
exercise aa right
right distinct
distinct from
from that
that of
of the
the defendant.
defendant. Such
Such a person has
-- 30
Case 5:17-cv-04207-NC Document30 --
1 Filed 07/24/17 Page 44 of 143
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.]
[113] There
[113] There is no evidence that Google acted in this case to deliberately flout this
Courts orders and assist the defendants. While
Court's While Google's
Googles search
search engines
engines facilitate
facilitate
(CanLII)
the defendants'
the defendants ongoing
ongoing breach by leading
breach by leading searchers
searchers to
to the
the defendants websites,
defendants' websites,
Google operates its search engines in the ordinary course of its business,
independently of the defendants
independently defendants and not in order to assist them
them in their breach.
[114] The
[114] The plaintiffs
plaintiffs' authorities involve
involve quite different facts. In MacMillan Bloedel,
to support the
those held in contempt had knowingly violated the court order to
defendants blockade of the logging road. In Glazer v. Union
defendant's 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.
Government. A
government minister, aware of the order but not a party to the proceeding, was
government
funds owing to the company to be paid to the
committed for contempt for causing funds
companys order
company's order rather
rather than
than to
to the
the receiver.
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
non-party published in its magazine when on notice of the order.
In all of these cases, the non-parties found in contempt had engaged in conduct
calculated to directly frustrate
calculated Googles search
frustrate a court order. Google's search results
results are
are not
not of
of the
the
same ilk.
[115] The
[115] The argument
argument that
that Google
Google aided and abetted
aided and abetted the
the defendants'
defendants contempt
contempt of
of the
the
existing court orders is stronger in relation to Googles sale of
Google's sale of advertising space to
when Google
the defendants. But as I noted earlier, when Google received
received notice
notice of
of this
this Courts
Court's
should not continue
orders it agreed that it should continue to do this. I accept that Google only
continued to do so up to the commencement
continued commencement of this hearing due to
to an administrative
administrative
oversight.
[116] The
[116] The second exception to the general rule
rule that a Court will not make orders
against a non-party
non-party extends
extends to orders made against non-parties
non-parties to aid in the
the fact
finding necessary to the administration of justice.
justice. Examples of orders made against
-- 31
Case 5:17-cv-04207-NC Document31 --
1 Filed 07/24/17 Page 45 of 143
non-parties who have

non-parties have no obligation to
to the
the plaintiff
plaintiff abound: subpoenas are issued to
abound: subpoenas
obtain evidence at trial under Rule
Rule 12-5(31)-(39); documents and oral evidence may
advance of trial under
also be obtained in advance under Rules
Rules 7-1(18) and 7-5.
(CanLII)
[117] In addition, under the Nomich
[117] Norwich Pharmacal
Pharmacal Co. and Others v. Customs and
Excise Commissioners, [1974] A.C. 133, [1973] 2 All ER 943 (H.L.) [Norwich
[Nomich
Pharmacal] line of authority,
Pharmacal] authority, courts can make orders against non-parties even before
an action is commenced. The remedy of pre-action discovery was articulated
articulated in
Norwich Pharmacal
Nomich Pharmacal by
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
identity of the wrongdoers. I do
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
information ought
ought to reimburse
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.
Kenney v. Loet4en
Loewen (1999), 64 B.C.L.R. (3d) 346, 1999 CanLII 6110 (S.C.), Procon
Mining
Mining and Tunnelling
Tunnelling Ltd. et al. v. McNeil,
McNeil, Bonnar
Bonner et al., 2007 BCSC 454 [Procon
Mining], and Pierce v. Canjex Publishing
Publishing Ltd., 2011 BCSC 1503.
[118] Google argues that the Norvtich

[118] Norwich Pharmacal line of authority goes
goes no further
non-party to provide information and is only imposed in
than compelling a non-party
exceptional cases with due concern for the
the non-party
non-party against whom
whom the
the order is
AG v. Ventra Group Co., 2009 ONCA 619 [Ventra]
sought: GEA Group AG [Ventre] at para. 85.
[119] I do not accept Googles

[119] Google's submission that the Court only has authority
authority to make
non-party in
an order against a non-party in relation to contempt or
or to further
further fact finding
necessary to effect justice. Lack of precedent should
should not
not be confused
confused with lack of
subject matter competence.
[120] Lord Woolf M.R. described this distinction in Broadmoor Hospital Authority &
[120]
Anor v. R, [1999] EWCA Civ 3039, [2000] QB 775 at para. 21:
-- 32
32 --
[21] The powers of courts with equitable jurisdiction to grant injunctions

are, subject to any relevant statutory restrictions, unlimited. Injunctions
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
(CanLII)
confuse questions of jurisdiction or of powers with questions of discretions or
of practice. The preferable analysis involves
involves a recognition of the great width
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 this course
appears appropriate.
[121] The
The Court has inherent
inherent jurisdiction to maintain the rule of law and to control
its own process. The
The power to grant injunctions
injunctions is a broad one and is confirmed
confirmed by
s. 39 of the Law and Equity Act. Injunctions
Injunctions may be issued in "in all cases in which
which it
appears to the court to be just or convenient
convenient that the order should
should be made ... on
terms and
terms and conditions
conditions the
the court
court thinks
thinks just":
just: MacMillan
MacMillan Bloedel, [1996] 2 S.C.R. 1048
at para. 15.
[122] The
The Courts
Court's willingness
willingness to
to use
use its
its equitable
equitable jurisdiction
jurisdiction against
against non-parties
non-parties is
evident in the
the development
development of Mareva injunctions.
injunctions. This line of authority is
is particularly
particularly
helpful because Mareva injunctions
helpful injunctions also involve
involve orders against non-parties who
reside outside of the province.
[123] Madam Justice Newbury

Newbury granted the
the first Mareva injunction
injunction in Canada in
Mooney v. Orr
Mooneyv. Orr (1994), 98 B.C.L.R. (2d) 318 (S.C.) [Mooney No. 1]
[Mooney No. 1] on an ex parte
application. After referring to English and Australian cases granting
granting such relief, she
observed at para. 11:
The reasons for extending

extending Mareva
Mareva injunctions to apply
apply to foreign assets are
valid in British Columbia no less than in England and Australia - the notion
that a court should not permit a defendant
defendant to take action designed
designed to frustrate
existing or subsequent orders of the court, and the practical consideration
that in this day of instant communication and
and paperless
paperless cross-border
cross-border
transfers, the courts must, in order to preserve the effectiveness of their
judgments, adapt
adapt to new
new circumstances.
circumstances.
[124] Madam Justice Huddart

Huddart continued
continued the
the injunction
injunction in a hearing
hearing two months
months later
with both parties present: Mooney v. Orr (1994), 100 B.C.L.R. (2d) 335 (S.C.)
-- 33
33 1-- Filed 07/24/17 Page 47 of 143
[Mooney No. 2]. She agreed that

that Mareva orders were aa necessary
necessary development,
development,
saying at para. 60:
saying
Whether this
Whether this extension of existing principles
principles is
is seen
seen as an expansion of the
exercise of discretion given
given by the Law and Equity Act or inherent in the
(CanLII)
court's ability
ability to
to control
control its
itsprocess,
process, II am
am of
of the
the view that such a discretion
must be exercised whenever itit is required to ensure the effective
administration of justice in in British
British Columbia..
Columbia..
[125] In injunctions were

In England, where Mareva injunctions were first
first made
made in
in 1975, such orders
1975, such
originally restricted
were originally restricted to
to assets
assets within
withinEngland.
England. In
In the
the late
late 1980s the English
English
courts relaxed
courts restrictions to
relaxed those restrictions to apply
apply to
to the
the defendants
defendants' assets wherever
wherever they
ancillary orders were extended to
were situated, and ancillary to non-parties
non-parties resident
resident in
in foreign
could not
countries. Non-parties could
countries. not only
only be restrained from
be restrained from dealing
dealing with
with the
the defendants'
defendants
could also be mandated to take steps to transfer
assets, but could transfer assets to a receiver
located elsewhere:
[126] The extra-territorial

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

include non-parties resulted from
from the
Courts recognition
Courts' recognition that
that Mareva injunctions
injunctions would
would have no practical
practical effect
effect without
without
involving non-parties.
involving because unscrupulous
non-parties. That is so because unscrupulous defendants
defendants will
will simply
simply fail to
comply with
with the
the injunction,
injunction, whereas
whereas the
the defendants accountants, lawyers
defendants' brokers, accountants, lawyers
likely to
and bankers are less likely to engage in such
such conduct.
conduct. However,
However, as Black & Babin
453, the
observed at 453, the rights
rights of
of non-parties
non-parties and the
the states
states in
in which
which they
they reside must
must
taken into
be taken into account:
account:
-- 34
34 1-- Filed 07/24/17 Page 48 of 143
[T]his practical need to control the actions of non-parties

non-parties must, as is the case
case
with parties, be balanced against such persons
persons' legitimate interests in privacy
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.
(CanLII)
[128] The Courts have developed
[128] developed protections
protections for non-parties
non-parties who are not resident
in the province, or who may have aa presence
presencewithin
within this
this jurisdiction
jurisdiction but
but are also
present or resident in aa number
number of
of jurisdictions
jurisdictions outside the territory.
territory. In recognition of
may be
the fact that such persons may be subject
subject to
to laws
laws in
inforce
force in
inthe
the foreign
foreignjurisdiction
jurisdiction
which forbid
which forbid compliance
compliance with
with an
an order
order made
made by this
this Court,
Court, the
the Court
Court has included
included in
worldwide Mareva injunctions
injunctions terms
terms which
which have come to
have come to be
be known
known as
as the
the "Babanaft"
Babanaft
Baltic provisos.
and "Baltic" provisos.
[129] Stephen Pitel and Andrew

[129] Andrew Valentine
Valentine describe
describe these
these provisos
provisos and the
their inclusion
rationale behind their injunctions in
inclusion in worldwide Mareva injunctions in The
"The Evolution
Evolution of
of
Mareva Injunction
Extra-Territorial Mareva
the Extra-Territorial Injunction in
in Canada:
Canada: Three
Three Issues
Issues" (2006)
(2006) 2
2JJP
P Int'l
Intl L
L
339 at 371-377. Babanaft and Baltic provisos
provisos are
are intended to ensure courts do
ensure that courts
exorbitant jurisdiction
not exercise exorbitant jurisdiction over
over non-parties
non-parties situated
situated abroad
abroad and
and are
particularly important
particularly important in defining
defining the
the effect of worldwide Mareva injunctions
injunctions on
with aa presence
corporate non-parties with presence both
both inside
inside and
and outside
outside the
the local
localjurisdiction.
jurisdiction.
[130] The Babanaft proviso

[130] proviso states
states in
in part
part that
that where
where a corporate
corporate non-party
non-party has
has a
outside of
presence in and outside of the
the jurisdiction,
jurisdiction, it must
must have
have notice of the order and the
ability to restrain activities abroad
abroad that
that would
would aid
aidin
in violation
violation of
of the
the injunction.
injunction.
[131] The Baltic proviso

[131] proviso permits corporate non-parties to comply with their foreign
obligations as they reasonably perceive them.
legal obligations
[132] Although Mareva injunctions

[132] injunctions are
are granted the plaintiffs
granted at the suit, a Mareva
plaintiffs suit,
orders primary
order's primary function
function is
is maintaining
maintaining the
the integrity
integrityof
ofthe
the Courts
Court's process.
process. Madam
Madam
Justice Huddart
Justice Huddart wrote in Grenzservice Speditions
Speditions Ges.m.b.h v. Jans (1995), 15
B.C.L.R. (3d) 370, 1995 CanLII 2507 (S.C.) at
at para. 92:
[92] TheThe Mareva

Mareva andand Anton
Anton Pillar
Pillar orderswere
orders wereconceived
conceivednot
notso
so much
much to
protect plaintiffs
plaintiffs as
as to
to protect the Courts jurisdiction against
Court's jurisdiction against defendants
defendants bent
-- 35
35 1-- Filed 07/24/17 Page 49 of 143
on dissipating or secreting their assets or evidence in order to render

inconsequential the
inconsequential the judicial
judicialprocess
processagainst
againstthem.
them....
[133] I conclude
[133] conclude that the Court has authority
authority to grant an injunction against a non-
party resident in a foreign jurisdiction in appropriate circumstances.
circumstances. The fact that an
(CanLII)
injunction has not before been made against
injunction against an
an internet
intemet search provider
provider such
such as
Google is reason to tread carefully,
carefully, but does not establish that the Court does not
make the
have subject matter competence. Indeed, the notion that a court may only make
orders it has made in the past is anathema
anathema to the spirit of the common
common law. As
Newbury J. observed in Mooney
Newbury Mooney No. 1 at para. 11:
the courts
... the courts must,
must, in order
order to preserve the effectiveness of their judgments,
adapt to new circumstances.
circumstances.Such
Such adaptability
adaptability has always been, and
continues to be, the genius of the common law.
(b)
(b) Should II make
Should make this
this order
order against Google?
against Google?
[134] Having
[134] Having determined that the Court has authority to issue an injunction
injunction with
extra-territorial effect against a non-party where itit is just or convenient
extra-territorial convenient to do so, the
question remains: should II grant
remains: should grant the
the injunction
injunction on
on the
the facts
facts of
of this case?
case? A related
question is what test should
should be applied in making that determination.
determination.
[135] Google submits that it would

[135] would not be just
just to make the order sought for four
reasons.
[136] First, Google says that

[136] that it provides an important
important and valuable
valuable tool for
navigating hundreds
navigating hundreds of trillions
trillions of webpages
webpages on the
the internet.
intemet. Google argues
argues it
or arbitrate disputes
cannot, as a practical matter, monitor content or disputes over
over content
because of the enormous volume of content; because it cannot determine whether
enormous volume whether
because content
information is inaccurate or lawful; and because content on
on websites
websites is
is constantly
constantly
changing so even if Google could
changing could form judgments
judgments about the
the content
content of sites on its
index at any given moment,
moment, those judgments
judgments would
would be obsolete moments
moments later.
[137]
[137] Whether
Whether Google is a passive indexer
indexer with no control
control over content
content has
has been
Gonzlez, Max Mosely, and Trkulja.
the subject of litigation in other jurisdictions: Gonzalez,
However, the order sought in the present case would not require Google to monitor
However,
-- 36
36 1-- Filed 07/24/17 Page 50 of 143
the content
the content of
of the
the defendants websites. Rather,
defendants' websites. Rather, the
the order
order would
would simply
simply require
require
all of
Google to remove all the defendants'
of the defendants websites
websites from
from its
its searches.
searches. To
To put
put itit simply,
simply,
it is not
not a question of blocking
blocking what
what is being
being said,
said, but
but rather
rather who is saying
saying it. The
order is, in many ways, only a slight
slight expansion on the removal of
of individual
individual URLs,
(CanLII)
agreedto
which Google agreed todo
dovoluntarily.
voluntarily.
[138] Second, Google submits

[138] submits it would unjust to
would be unjust to make the order sought
sought because
de-indexing entire websites without
without regard to content of the specific
specific URLs would
would
constitute undue
constitute censorship. Googles
undue censorship. Google's employee
employee Mr. Smith deposed:
URLs not
not specifically reviewed and identified may be used for any number of
identified may
innocent purposes and aa complete
complete removal
removal could
could result
result in
in possibly numerous
being blocked
URLs being blocked without Google having had had the
the opportunity
opportunity to review
determine ifif aa departure
them and determine departure from
from its
its usual indexing process is
necessary or warranted in in the circumstances.
[139] I do not find

[139] find this
this argument
argument persuasive. Google acknowledges that
that itit alters
search results
search results to
to avoid
avoid generating
generating links
links to
to child
child pornography
pornography and hate speech"
and "hate speech
recognizes its
websites. It recognizes its corporate
corporate responsibility
responsibility in this
this regard, employing
employing 47
47 full-
full-
time employees worldwide who,
who, like Mr. Smith, take down
down specific
specific websites,
including websites subject
including subject to court Excluding the
court order. Excluding defendants prohibited
the defendant's prohibited
websites from
websites from search
search results
results is
is in
in keeping with Google's
keeping with Googles approach
approach to
to blocking
blocking
websites subject to court order.
[140] Third,
[140] Third, Google argues that
that the Court
Court should
should not make
make an
an order
order that
that could
could
because itit would
affect searches worldwide because would put Google in
in the
the impossible
impossible situation of
something that could require it to
being ordered to do something to contravene
contravene a law in another
jurisdiction. This
jurisdiction. This raises
raises the
the concern
concern addressed by the Baltic proviso in Mareva
injunctions.
[141] Google gives as

[141] as an
an example
example of
of such
such jurisdictional
jurisdictional difficulties
difficulties the
the case
case of
Yahoo! Inc. v. La Ligue Contre Le Racism
Racism et
et LAntisemitisme
LAntisemitisme [Yahoo]. In
In 2000 two
2000 two
groups filed
French anti-racism groups filed a suit
suit in France against Yahoo
Yahoo alleging that Yahoo
violated a French law
violated law prohibiting
prohibiting the by permitting
the display of Nazi paraphernalia by permitting
users of its internet
internet auction services to display and sell such artifacts. The
The plaintiffs
plaintiffs
-- 37
37 --
demanded that
demanded that Yahoo's
Yahoos French
French subsidiary,
subsidiary, Yahoo.fr,
Yahoo.fr, remove
remove all
all hyperlinks
hyperlinks to
to the
containing the offending
parent website (Yahoo.com) containing offending content.
content. As in this case, Yahoo
Court lacked
argued that the French Court lacked jurisdiction
jurisdiction over the because its
the matter because its servers
States. The
were located in the United States. The French
FrenchCourt
Court held
held that
that ititcould
could properly
properly
(CanLII)
jurisdiction because
assert jurisdiction because the
the damage
damage was suffered
suffered in France and required
required Yahoo
take all
to "take all necessary measures to
necessary measures" to "dissuade
dissuade and render impossible"
and render impossible all access via
yahoo.com by
by intemet
internet users
users in
in France
France to
to the
the Yahoo!
Yahoo! intemet
internet auction
auction service
service
displaying Nazi artifacts,
displaying artifacts, as well as to
to block
block internet
internet users
users in France from accessing
other online
other onlineNazi
Nazi material:
material:145
145FFSupp
Supp2d
2d1168
1168 (ND
(ND Cal
Cal 2001)
2001) at 1172.
[142] Yahoo claimed

[142] claimed that
that implementing
implementing the
the order
order would
would violate
violate its
its First Amendment
rights to
rights to freedom
freedom of expression
expression and therefore could not be enforced in the United
therefore could
States. The French
French Court
Court did
did not
not accept
accept that
that submission.
submission. Yahoo initiated
initiated aa suit
suit in
California against the French plaintiffs,
plaintiffs, and obtained a declaratory judgment
judgment that the
constitutionally unenforceable
French orders were constitutionally unenforceable in the
the United States,
States, contrary
contrary to
the first amendment. Addressing the issue
issue of international
international comity,
comity, the Court
States Courts
reasoned that United States Courts will
will generally
generally recognize and enforce
enforce foreign
judgments but could
judgments could not
not do
do so on the
the facts
facts of
of that
that case
case because enforcement
enforcement of
of the
French orders
French orders would
would violate
violate Yahoos
Yahoo's constitutional
constitutionalrights
rightsto
tofree
freespeech:
speech:169
169 F Supp
1181 (ND
2d 1181 (ND Cal
Cal2001)
2001)atat1192-1193.
1192-1193.This
Thisdecision
decisionwas
wasultimately
ultimately reversed
reversed on
different grounds:
different grounds:379
379FF3d
3d1120
1120 (9th
(9th Cir
Cir2004),
2004), reheard
reheard in
in433
433 FF 3d
3d 1199
1199 (9th Cir
2006).
[143]
[143] Yahoo provides a cautionary
cautionary note. As with Mareva injunctions,
injunctions, courts
courts must
must be
cognizant of potentially
cognizant potentially compelling
compelling a non-party
non-party to
to take
take action
action in
in aa foreign
foreignjurisdiction
jurisdiction
would breach the law in that jurisdiction.
that would jurisdiction. That
That concern
concern can
can be addressed in
appropriate cases, as it is for Mareva injunctions,
injunctions, by
by inserting
inserting a Baltic type proviso,
which would non-party from
would excuse the non-party from compliance
compliance with
with the
the order
order ifif to
to do
do so
so would
would
breach local laws.
[144] In
[144] In the present
present case, Google is
is before this Court and does not suggest that
that an
requiring it to
order requiring block the
to block the defendants
defendants' websites
websites would
would offend
offend California
California law,
law, or
-- 38
38 1-- Filed 07/24/17 Page 52 of 143
the law of
indeed the of any state
state or
or country
country from
from which a search
search could
could be
be conducted.
conducted.
that most
Google acknowledges that most countries
countries will
will likely recognize intellectual
intellectual property
rights and view the selling
rights selling of pirated products
products as a legal wrong.
wrong.
(CanLII)
[145] Fourth,
[145] Fourth, Google argues that
that the
the order
order sought
sought is
is too broad.
broad. Google submits
submits that
if the
the injunction
injunction is
is granted
granted itit should
should be
be limited
limited to
to Google.ca,
Google.ca, the
the website designated
for Canada, because no
Canada, because no court
court should
should make an
an order
order that
that has aa reach
reach that
that extends
extends
around the world.
[146] I note again that on the

[146] the record before me,
me, the
the injunction
injunction would
would compel Google
steps in California or the state in
to take steps in which
which its search engine is controlled,
controlled, and
would not
would not therefore
therefore direct
direct that
that steps
steps be taken around
around the world. That the effect of
of the
injunction could
injunction couldreach
reachbeyond
beyondone
onestate
state is
isaa separate
separate issue.
issue. Even an order
enjoining conduct
mandating or enjoining conduct entirely within British
entirely within British Columbia
Columbia may
may have such
extraterritorial, or even worldwide effect.
extraterritorial,
[147] For example, aa non-party

[147] non-party corporation
corporation that warehouses and ships
ships goods for a
manufacturing company might
defendant manufacturing might be
be ordered
ordered on
on an
aninterim
interim injunction
injunction to
the defendants'
freeze the defendants goods
goodsand
andrefrain
refrain from
from shipping
shipping them.
them. That
That injunction
injunction could
could
affect orders received from customers
customers around
around the
the world. Could it sensibly
sensibly be argued
could not grant the injunction
that the Court could injunction because it would
would have
have effects
worldwide? The impact
worldwide? impact of
of an
an injunction
injunction on strangers to the suit or the order itself is a
valid consideration
valid consideration in
in deciding
deciding whether
whether to
to exercise the Court's
exercise the Courts jurisdiction
jurisdiction to
to grant
grant an
an
injunction. ItIt does
injunction. does not,
not, however,
however, affect
affect the Courts authority
the Court's authority to
to make
make such
such an
an order.
order.
[148] Further,
[148] Further, although
although Google has aa website
website for
for each
each country
country to which searches
country default,
made within that country default, users
users can override that
that default
default and access other
countrys Google
country's Google websites.
websites. For
For example, even ifif the
example, even the defendants'
defendants websites
websites were
were
blocked from searches conducted
conducted through
through www.google.ca, Canadian
Canadian users
users can go
or www.google.fr
to www.google.co.uk or and obtain
www.google.fr and obtainresults
results including
including the
the defendants'
defendants
record before me it appears that
websites. On the record that to be effective, even within
within
Canada, Google
Canada, Google must
must block
block search
search results
results on
on all
all of
of its
its websites. Furthermore,
Furthermore, the
defendants sales
defendants' sales originate
originate primarily
primarily in
in other
other countries,
countries, so
so the Courts process
the Court's process
-- 39
39 1-- Filed 07/24/17 Page 53 of 143
cannot be protected unless

cannot unless the injunction
injunction ensures
ensures that searchers from any
jurisdiction do
jurisdiction do not find the
not find the defendants
defendants' websites.
websites.
[149] Google relies on Max Mosely in which

[149] which the
the Regional Court
Court of Paris acceded to
(CanLII)
Googles argument
Google's argument that
that removal
removal of
of images
images should
should be
be restricted
restricted to
to searches
searches that
that
could be conducted
could conducted from within
within France
France (English translation
translation of Max Mosely at 13).
Moselyat
restriction was
That restriction was based on the images constituting breach of
constituting aa breach of Frances penal
France's penal
code; publication
publication of
of the
the images
images was not
not a breach of the laws of other countries.
countries. The
therefore ordered Google to remove the images from
French Court therefore search
from the "search
accessible in
engine that it operates, accessible in France".
France. Max Mosely is distinguishable
distinguishable on that
basis.
[150] Accepting that

[150] that an order with
with worldwide
worldwide effect
effect can
can be granted, what test
should be applied in determining
should determining whether
whether it should
should be granted? I conclude
conclude that
that the
sought against a non-party
order sought non-party requires the Court to consider the
the standard test for
granting an injunction
granting injunction but modified to take into
into account the
the direction
direction to aa non-party.
non-party.
In Mooney No. 2, Huddart
Huddart J. described an appropriate
appropriate standard
standard at
at p. 22:
The comparable approach to a Mareva injunction

injunction would
would be
be to require
require a
strong prima facie ()
(...) or a good arguable case (...) tocross
()to crossthe
the threshold,
threshold,
and then to balance the interests of the two parties, having regard to all the
in each case,
relevant factors in case, to reach aa just
just and convenient
convenient result.
[151] The fair question to be tried relates of

[151] course to
of course to the
the plaintiffs'
plaintiffs claim
claim against
against
since that
the defendants, since that is
is the
the cause
cause of
of action
action in
in relation
relation to
to which
which the
the injunction
injunction is
sought. Google takes no
sought. no issue
issue with
with that.
that. In
In this
this case
case the
the plaintiffs
plaintiffs have
have not
not only
only
the defendants
raised an arguable claim; two of the defendants' defences have been
defences have been struck
struck and
and
to have
they are presumed to have admitted
admitted the
the allegations.
allegations.
[152] As for balancing

[152] interests of the plaintiffs
balancing the interests plaintiffs and
and non-party
non-party Google, the
plaintiffs have
plaintiffs have established
established that
that they
they are suffering
suffering irreparable harm by the defendants'
defendants
ongoing sale
ongoing sale of the
the GW1000 on the
GW1000 on the internet.
internet. The
The plaintiffs
plaintiffs have
have also
also established
established that
inadvertently facilitating
Google is inadvertently facilitating that
that harm
harm through
through its
its search
search engines. While there
other search
are other search engines, Google does
engines, Google doesnot
not contest
contest the
the plaintiffs'
plaintiffs assertion
assertion that
that
Googles position
Google's position as
as the
the search
search engine
engine used
used for
for 70-75% of internet
70-75% of internet searches means
-- 40
40 --
will not be
the defendants will be commercially
commercially successful
successful ifif they cannot
cannot be
befound
found through
through
Googles search services.
Google's
Googleacknowledges
[153] Google acknowledgesthat
thatititcan
cando
dowhat
what is
is being
being asked of it. Google does
(CanLII)
not assert that it would
would be inconvenienced
inconvenienced in any material way
way or
or that
that itit would
would incur
incur
to do
expense to do so.
so. The
The balance
balanceofofconvenience
conveniencethus
thusfavours
favours granting
granting the
theinjunction.
injunction.
Considerationof
[154] Consideration ofthe
the factors
factors identified
identified in Nomich
Norwich Pharmacal
Pharmacal may also be of
assistance: Procon Mining at para. 27; Ventra at para. 50.
50. Modified
Modified to
to reflect
reflect the
the
sought in this case they include:
relief sought include:
a. the applicant
Whether the applicant has provided
provided evidence sufficient
sufficient to raise a valid,
valid,
claim;
bona fide or reasonable claim;
b.
b. the applicant
Whether the applicant has
has established
established aarelationship
relationship with
with the
the third
third
party such that it establishes that the
the third
third party
party is
is somehow
somehow involved
involved
in the acts complained of;
of;
c.
c. the third
Whether the third party is the only
only practicable means to
to obtain
obtain the
relief sought;
d.
d. the third
Whether the third party can
can be
beindemnified
indemnified for
for costs
costs to
to which
which the
the third
third
party
party may be exposed because of the order; and
e. the interests
Whether the interests of
of justice
justice favour the granting
granting of
of the
the relief
relief sought.
sought.
Tothis
[155] To thislist
listof
ofconsiderations
considerations II would
would add
add the
the degree
degree to
to which
which the interests
interests of
applicant and
those other than the applicant and the
the identified
identified non-party
non-party could
could be
beaffected here
affected
potential purchasers
potential purchasers will
will not
not be
be able
able to
to find
find and
and buy
buy the
the defendants products as
defendants' products as
but that
easily, but that is
is as
as itit should
should be
be in
in light
light of
of the
the existing
existing court
court orders
orders prohibiting
prohibiting the
defendants from selling
defendants selling the
the GW1000 and related
GW1000 and related products.
products.
Googleisisananinnocent
[156] Google innocentbystander
bystanderbut
butititisisunwittingly
unwittingly facilitating
facilitating the
the
defendants ongoing
defendants' ongoing breaches of this Courts
breaches of Court's orders. is no other practical way
orders. There is
--41
41 --
for the
for the defendants
defendants' website
website sales to be stopped. There
There is
is no
no other
other practical
practical way to
remove the
remove the defendants'
defendants websites
websites from
from Google's
Googles search
search results.
results.
[157] The fundamental

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

injunction should
should be granted, I am
am mindful
mindful
Madam Justice
of Madam Justice Newbury's admonition that
Newburys admonition that aa court
court should
should not permit a defendant
to frustrate
to frustrate orders of the
orders of the court
court and that "courts
and that courts must,
must, in order
order to
to preserve the
effectiveness of their judgments,
judgments, adapt
adapt to
to new circumstances: Mooney
new circumstances": Mooney (No. 1) at
paras. 10-11.
[159] The Court must

must adapt
adapt to the reality
reality of e-commerce
e-commerce with
with its
its potential for abuse
by those would take the
those who would the property of others
others and sell
sell it through
through the borderless
electronic web of the internet. II conclude
electronic conclude that
that an
an interim
interim injunction
injunction should
should be granted
compelling Google
compelling to block
Google to block the
the defendants websites from
defendants' websites from Google's
Googles search
search results
results
preserve the
worldwide. That order is necessary to preserve
worldwide. the Court's
Courts process
process and
and to
to ensure
ensure
the defendants
that the defendants cannot
cannot continue
continue to
to flout
flout the Courts orders.
the Court's orders.
[160] Non-parties
Non-parties affected
affected by Mareva injunctions
injunctions are
are not
not normally
normally before the Court,
applications of that
because applications that kind
kind are brought
brought without
without notice.
notice. Google
Google was
was named in
this application,
this application, served
served with
with materials,
materials, and attended the hearing.
hearing. ItIt is
is not
not therefore
therefore
anticipating possible conflicts
necessary to craft terms anticipating conflicts Google
Google could
could face in
-- 42
42 --
complying with
complying with the
the interim
interim injunction.
injunction.No
No terms
terms of
of this
this kind
kindhave
have been
been requested by
Google and II see
see no
no basis
basison
on the
the record
record before
before me
meto
toexpect
expectsuch
suchdifficulties.
difficulties.
VI. CONCLUSION
VI. CONCLUSION
(CanLII)
I concludethat
[161] I conclude thatthe
theinterim
interiminjunction
injunction sought
sought should
should be
be granted:
granted:
Within 14 days of the date

date of
of this judgment,
judgment, Google Inc.
Inc. is
is to
to cease
cease indexing
indexing
referencing in search results
or referencing results on its
its internet
internet search engines the websites
contained in Schedule A to the
contained the notice
notice of
of application.
application.
VII. COSTS
VII. COSTS
Theplaintiffs
[162] The plaintiffsare
areentitled
entitledtotospecial
specialcosts
costsof
ofthis
this application
application against
against the
the
defendants Morgan Jack, Datalink 4 and
defendants and Datalink
Datalink 7.
7.Special
Specialcosts
costs are
arejustified
justified
application to
plaintiffs application
because the plaintiffs to enjoin
enjoin Google
Google was
was made necessary by
made necessary by the
the
defendants flagrant
defendants' flagrant and
and ongoing
ongoing breaches
breaches of
of this Courts orders.
this Court's orders.
The Honourable
Honourable Madam
Madam Justice
Justice L.A. Fenlon
43 --
-- 43
SUPREME COURT
OF COLUMUIA
VANCOUVER
NE REGISTRY
SP 2 2 2014 No. S112421

ENTF RED Vancouver Registry
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
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---
o.fawyer for Google C nada Corporation
and Google Inc.
Geoffrey B. Gomery
011867\001\00076680 www.robertfleminglawyers.com
45 --
-- 45
"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
-- 46
46 - -
"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
"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
- 49 1- Filed 07/24/17 Page 62 of 143
-PREME COURT
OF BRITISH COLUMBIA
VANCOUVER REGISTRY
DEC 1 5 2014 No. S112421

Vancouver Registry
ENTERED
IN THE SUPREME COURT OF BRITISH COLUMBIA
BETWEEN:

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
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;
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 -
-50-
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
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
-- 51
51 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
- 53
53 --
SUPREME COURT
BRITISH COLU MBIA
VANCOUVER REGISTRY
APR 2 3 2015
No. S112421
GtNITRgn
Vancouver Registry
BETWEEN:

ROBERT ANGUS, and CLARMA ENTERPRISES LTD.
PLAINTIFFS
AND:
MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR,
ANDREW CRAWFORD aka DEREK SMYTHE,
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
) )
BEFORE ))y4 ) , theZ day of
u-tAtviE ft-w- Comer ) April 204
ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials
filed by the plaintiffs;
websites listed as Schedule "A" to this order; and
- 54
54 -
court.
CONSENT:
Sign re of lawyer for the plaintiffs

Jo Zeljkovich
By the Court.
-- 55
55 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 1
Case 5:17-cv-04207-NC Document Filed 07/24/17 Page 71 of 143
SuPREME COURT
BRITISH COLUMBIA No. S112421
OVANCOUVER REGISTRY Vancouver Registry
JUN 0 4 1D15
I \I THE SUPREME COURT OF BRITISH COLUMBIA

PLAINTIFFS
AND:
ALFONSO DOE
DEFENDANTS
)
BEFORE ) litAte,5o( , the 1(14day of
E OF 11 ) June 2015
) Co LA (Z-T
THIS COURT ORDERS THAT;
wwvv.robertfleminglawyers.com
-- 58
58 1-- Filed 07/24/17 Page 72 of 143
court.
CONSENT:
Signatvre-4Sf lawyer for the plaintiffs

John Zeljkovich
Registrar
- 59 1- Filed 07/24/17 Page 73 of 143
Schedule A
www.qateway-owl 000dhpl.com
www.datalink-gw1000abeip.corn
-- 99
99 --
SUPREME COURT
OF BRITISH COLUMBIA
VANCOUVER REGISTRY
JUL 0 B 2015
No. S112421
. ENT p60 Vancouver Registry
BETWEEN:

PLAINTIFFS
AND:
ALFONSO DOE
DEFENDANTS
) )
BEFORE "- c>f= 1-1.+C'
) -I\ Cc-Ir. ) Fr (40-41 the 3 day of
July 2015
) )
) )
Schedule "A" to this order, including all subpages and subdirectories of those
www.robertilerninglawyers.com
100 --
-- 100
court.
CONSENT:
Signatut df1awyer for the p aintiffs

John eljkovich
By the Court.
Registrar
101 -
-- 101 -
Schedule A
www.datalink-qw1000-abeip.com
https://ethernetiptodhplus.wordpress.com
www.ethernettodatahiqhwayplus.corn
www.datahighwayplustoethernet.corn
www.robertfleminglawyers.corn
-- 103
Case 5:17-cv-04207-NC Document1031-- Filed 07/24/17 Page 77 of 143
No. S112421
;r1) 1.7 2015 Vancouver Registry
4IN D
BETWEEN:

PLAINTIFFS
AND:
ALFONSO DOE
DEFENDANTS
etA
) )
BEFORE ) TAE=
-E-1-10
- NOURABLE ) (1
"); , the ' day of
) JUST-AGE ) 2015
-- 104
104 --
court.
CONSENT:
SignaturOlawyer for the plaintiffs

John Zeljkoyich
By the Court.
www.robertfleminglawyers.corn
105 --
-- 105
Schedule A
www.datalinkqw1000abeip.com
https://plus.google.cam/+Ethernetallenbradleydhplus
https://kinja.com/datalinkgw1000
https://datalinkgw1000.wordpress.corn
- 111 -
'",
V111:1(A OiVi* No. S112421
Vancouver Registry
HE SUPREME COURT OF BRITISH COLUMBIA

PLAINTIFFS
AND:
ALFONSO DOE
DEFENDANTS
) )
BEFORE ) A JUDGE OF THE COURT ) IllAV,SIVN , the l'Z'Mday of
) ) OfinikAMI -2015.L/op L.,
) )
) )
website listed in Schedule "A" to this order;
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
-- 112
112 --
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.
CONSENT:
Signatwe of lawyer for the plaintiffs

JohneZeljkovich
By the Court.
Registrar
113 --
-- 113
Schedule A
1. http://www.ethernet-datahighwayplus.com
www.robertfleminglawyers,com
1141-- Filed 07/24/17 Page 83 of 143
-- 114
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-high-
way-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-_gw1000-
dhp1-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.
-- 116
116 --
No. S112421
Vancouver Registry
BETVVEENi.

PLAINTIFFS
AND:
DATA.L1NK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6,
ALFONSO DOE
DEFENDANTS
BEFORE ) 65-7N, the L. ---' day of

) Pi 201-6
website listed in Schedule "A" to this order;
-- 117
117 --
court; and
in search results on its Internet search engines the URLs listed in Schedule "B" to
court.
CONSENT:
r
I
Signatufe'of lawyer for the plaintiffs

Joh.n/Zeljkovich
By the Court.
Registrar
wwvv.robertfleminglawyers.com
- 118
1181- Filed 07/24/17 Page 86 of 143
Schedule A
1. http://wwiv.datalinkcontrollers.datatechqateways.corn/
2. http://www.ethemetip-datahighwayplus.com/
- 119 -
-119-
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-abeip-
low-cost-df1-ethernet-ethernetip-converter-to-allen-brad ley-data-highway-plus-d h-dh-
485-7210304. html
6. http://www.artipot.com/articles/1853538/datalink-ow1000-df1-ab-ethernet-ethemet-ip-
converter-to-allen-bradleyss-datahighway-plus-dh-dh-485.htm
7. http://www.docfoc.com/gw1000-abeip
8. http://wvvw.europages.co.uk/DATALINK-TECHNOLOGIES-
GW1000ABEIP/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-gw1000-
abeip-ethernet-ip-to-data-highway-plus-converter
11. http://wwvv.mfgpapes.com/company/Datalink-Technolopies-in-WASHIN GTON-USA-

10168500/
12. http://www.sooperarticles.com/shopping-articles/electronics-articles/datalink-owl 000-

altemative-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
SUPREME COURT
IA
OF BRITISH
REGI
VANCOUVERCOLUMBST RY
AUG 2 4 2016
No. S112421
Vancouver Registry
BETWEEN:

PLAINTIFFS
AND:
ALFONSO DOE
DEFENDANTS
BEFORE
) 1 OUDGE OF "THE- (cuct ) Nalrodai , the _a_ day of
) 2016
in search results on its internet search engines the URLs listed in Schedule "A" to
court.
BY THE COURT
ENDORSEMENTS ATTACHED
REGISTRAR
CONSENT:
Sig re of lawyer for the plaintiffs

John Zeljkovich
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-converter-
interfacing-n-1723096976
5. http://www.articlesbase.com/industrial-articles/datalink-technologies-gw1000-
abeip-low-cost-df1-ethemet-ethernetip-converter-to-allen-bradley-data-
highway-plus-dh-dh-485-7210304.html
EXHIBIT B
SUPREME COURT OF CANADA
CITATION: Google Inc. v. Equustek Solutions Inc., APPEAL HEARD: December 6, 2016
2017 SCC 34 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, Ct,
Brown and Rowe JJ.
R EASONS FOR JUDGMENT: Abella J. (McLachlin C.J. and Moldaver, Karakatsanis,

(paras. 1 to 54) Wagner, Gascon and Brown JJ. concurring)
JOINT DISSENTING REASONS : Ct and Rowe JJ.

(paras. 55 to 82)
N OTE: This document is subject to editorial revision before its reproduction in final
form in the Canada Supreme Court Reports.
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.

2017 SCC 34
File No.: 36602.
2016: December 6; 2017: June 28.
Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Ct,
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 Es products,
began to re-label one of the products and pass it off as its own. D also acquired
confidential information and trade secrets belonging to E, using them to design and
manufacture a competing product. D filed statements of defence disputing Es claims,
but eventually abandoned the proceedings and left the province. Some of Ds
statements of defence were subsequently struck.
Despite court orders prohibiting the sale of inventory and the use of Es
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 Ds 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 Ds
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 Ds websites on any of its search results
worldwide. The Court of Appeal for British Columbia dismissed Googles appeal.
Held (Ct 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 Ds 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 Ds 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
does it suggest that it would be inconvenienced in any material way, or would incur
any significant expense, in de-indexing Ds 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 Googles
assistance to prevent the facilitation of Ds 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 injunctions 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
intended ability to prevent irreparable harm, since purchasers outside Canada could
easily continue purchasing from Ds websites, and Canadian purchasers could find
Ds websites even if those websites were de-indexed on google.ca.
Googles 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
Googles 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 Es survival on Googles
search engine which directs potential customers to Ds 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
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 Ct 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 Es 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 Es claims were
supported by a good prima facie case, it was not established that D designed and sold
counterfeit versions of Es 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 Googles search engine was facilitating Ds ongoing breach by leading
customers to Ds 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 Ds 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. Ds 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. Ds 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 Ds 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 Lloyds
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
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 Ct 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.
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. Intl 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).
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, Ct 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.

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

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
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 Equusteks 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
Equusteks 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 Equusteks products and trademarks on its websites.
[4] The Datalink defendants filed statements of defence disputing Equusteks
claims.
[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 Equusteks 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 Equusteks products to Equusteks 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 Datalinks
statements of defence were subsequently struck.
[8] On July 26, 2012, Punnett J. granted a Mareva injunction freezing
Datalinks 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
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 Equusteks
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 Jacks arrest. It remains
outstanding.
[11] Despite the court orders prohibiting the sale of inventory and the use of
Equusteks 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
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. Googles 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

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 countrys
Google URL. Potential Canadian customers could, as a result, find Datalinks
websites even if they were blocked on google.ca. Given that the majority of the sales
of Datalinks GW1000 were to purchasers outside of Canada, Googles 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 Datalinks ability to sell its counterfeit product is, in
large part, contingent on customers being able to locate its websites through the use
of Googles 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.

[19] Fenlon J. concluded that this irreparable harm was being facilitated
through Googles 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 Googles 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, [Datalinks] sales originate primarily in other countries, so
the Courts process cannot be protected unless the injunction ensures that
searchers from any jurisdiction do not find [Datalinks] websites. 1
[20] The Court of Appeal of British Columbia dismissed Googles 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 courts
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.
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 courts 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] RJRMacDonald 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
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 Datalinks 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] Googles first argument is, in essence, that non-parties cannot be the
subject of an interlocutory injunction. With respect, this is contrary to the

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-partys 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).

[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 Courts jurisdiction to
grant an injunction. It does not, however, affect the Courts 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 rationale for granting injunctions against non-parties who facilitate
2
Para. 147.
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
plaintiffs 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 Lloyds 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 non-
party 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. Intl 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. 452-
53; Berryman, at pp. 128-31). Banks and other financial institutions have, as a result,
been bound by Mareva injunctions even when they are not a party to an underlying
action.
[34] To preserve Equusteks 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 Equusteks
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 Googles search results. In the absence of de-indexing these
websites, as Fenlon J. specifically found, Google was facilitating Datalinks 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 Datalinks websites, it was facilitating Datalinks 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 Googles
assistance in order to prevent the facilitation of Datalinks 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.

[36] Googles 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 injunctions effectiveness, it can grant an injunction enjoining that persons
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:
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: Informs Blog https://inforrm.wordpress.com/
2014/02/05/case-law-hamburg-district-court-max-mosley-v-google-inc-
google-go-down-again-this-time-in-hamburg-dominic-crossley/) and ECJ
Google Spain SL, Google Inc. v. Agencia Espaola de Proteccin de
Datos, Mario Costeja Gonzlez, C-131/12 [2014], CURIA.3
[40] Fenlon J. explained why Equusteks 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 Googles 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 Datalinks 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.
4
Para. 76.
5
Para. 148.
[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 Datalinks 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 Datalinks websites, and Canadian purchasers could easily find
Datalinks websites even if those websites were de-indexed on google.ca. Google
would still be facilitating Datalinks breach of the courts 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 Googles facilitation. The
order targets Datalinks 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 Googles global search results.
[43] Nor does the injunctions worldwide effect tip the balance of convenience
in Googles favour. The order does not require that Google take any steps around the
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] Googles 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 judges
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.
. . . 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 Googles 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.
[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
Googles facilitating Datalinks 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.
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
Equusteks survival on Googles 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.

[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
CT 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
is mandatory and requires court supervision. It has not been shown to be effective,
and there are alternative remedies available to Equustek.
I. Judicial Restraint
[57] 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
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

[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
Equusteks 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;
c. distributing the offending manuals and displaying images of the

Plaintiffs products on any website; and
d. selling the GW1000 line of products which were created by the theft
of the Plaintiffs 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,
Datalinks 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 Equusteks choice to not seek default
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] Procedurally, Equustek requested an interlocutory order in the course of
its litigation with Datalink. While Equusteks 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
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 Equusteks
application for an interim injunction enjoining Google to cease indexing or
referencing Datalinks 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 Datalinks liability are deemed to be admitted, the
court can still exercise its discretion in assessing Equusteks 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.
[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
courts 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. Equusteks
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 Datalinks wrongdoing; it holds no
assets of Equusteks, 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. Google Is a Non-Party
[68] 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
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 courts 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. 9-
08). 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 Googles search engine was facilitating Datalinks ongoing
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 Equusteks 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 Datalinks 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
plaintiffs substantive rights (Mercedes Benz, at p. 302). In contrast, the Google Order
enforces Equusteks asserted intellectual property rights by seeking to minimize harm
to those rights. It does not freeze Datalinks assets (and, in fact, may erode those
assets).
[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 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.
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
Datalinks 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
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. The Google Order Is Mandatory
[75] 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. 199-
200). 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 Datalinks 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
should avoid granting injunctions that require such cumbersome court-supervised
updating.
D. The Google Order Has Not Been Shown To Be Effective
[77] 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
points out, Datalinks 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. Datalinks 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. Alternatives Are Available
[81] 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
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, CT 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.

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.

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 Ttrault, Toronto.
Solicitors for the intervener the International Federation of Film
Producers Associations: MacKenzie Barristers, Toronto.

Google V Equustek

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

1 QUINN EMANUEL URQUHART & SULLIVAN, LLP

6 Attorneys for Plaintiff

8 UNITED STATES DISTRICT COURT

11 Google Inc., Case No. 17-CV-________________

14 Equustek Solutions Inc., Clarma

20 clarify U.S. law.

25 injunction by characterizing Googlea single provider on interactive computer servicesas the

7 enjoining that enforcement.

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

15 Columbia, V5J3J1, Canada.

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

18 Vancouver, British Columbia, V6Z2H2, Canada.

23 JURISDICTION & VENUE

26 Communications Decency Act, 47 U.S.C. 230.

14 take steps where its search engine is controllednamely, California.

18 the Northern District of California pursuant to 28 U.S.C. 1391(b)(2).

25 portals, such as www.google.mx and www.google.fr (targeted, respectively, to users in Mexico

5 are most likely to find responsive to their queries.

9 registrars, and hostsnot Google.

15 CNN.com), or in an email, social media post, or electronic advertisement.

16 Equustek Sues Competitor Datalink In Canada.

24 misleading statements about Equustek on its websites.

6 continues to offer the GW1000 for sale online.

7 Equustek Obtains Canadian Injunction Prohibiting Google From Including Links To

8 Datalinks Websites In Search Results Displayed Anywhere In The World.

17 in the United States.

28 search results world-wide.

6 supplemental orders requiring Google to block more than 75 additional Datalink-associated

10 with the Canadian Order.

16 the power to remove the enjoined content from the internet.

20 returning links to Datalink websites that Google was ordered to delist.

21 Google Exhausts Its Appeals In Canada.

7 search engines and internet sources.

20 effective, particularly where Equustek has alternative remedies.

21 A Case Or Controversy Exists.

4 search results displayed within the United States.

8 are not merely theoretical.

9 FIRST CAUSE OF ACTION

15 protected speech under the First Amendment.

16 32. The First Amendments prohibition on abridgments of speech extends to judicial

18 and is content-specific, it is subject to strict scrutiny.

6 around the world.

11 Court affords relief.

12 SECOND CAUSE OF ACTION

26 39. Google Search satisfies Section 230s definition of an interactive computer

7 that third parties have posted online.

10 require Google to delist search results in the United States.

15 Court affords relief.

16 THIRD CAUSE OF ACTION

23 place within or affects their own territories.

24 46. Recognizing these principles, the Canadian Attorney General intervened in

26 an impermissible exercise of extraterritorial enforcement jurisdiction.

3 country should purport to control the global internet.

8 do with this case.

20 no account of the public interest at all.

24 which alternative remedies are available.

5 require Google to delist search results in the United States.