{"id":274,"date":"2017-06-29T13:00:30","date_gmt":"2017-06-29T17:00:30","guid":{"rendered":"http:\/\/canlawblog.com\/?p=45"},"modified":"2017-06-29T13:00:30","modified_gmt":"2017-06-29T17:00:30","slug":"scc-upholds-equustek-worldwide-injunction-google","status":"publish","type":"post","link":"https:\/\/canlawblog.com\/index.php\/2017\/06\/29\/scc-upholds-equustek-worldwide-injunction-google\/","title":{"rendered":"Equustek worldwide injunction against Google"},"content":{"rendered":"<p>Google lost its appeal to the Supreme Court of Canada on June 28, 2017. The case is called\u00a0Google Inc. v. Equustek Solutions Inc., et al. And the decision solidifies the worldwide injunction made against Google by a Canadian superior court in British Columbia, Canada.<\/p>\n<p>The Supreme Court of Canada decision in\u00a0<em>Google Inc. v. Equustek Solutions Inc.,<\/em>\u00a0<a href=\"http:\/\/bit.ly\/2sitnVs\" target=\"_blank\" rel=\"noopener noreferrer\" data-saferedirecturl=\"https:\/\/www.google.com\/url?hl=en&amp;q=http:\/\/bit.ly\/2sitnVs&amp;source=gmail&amp;ust=1498786681387000&amp;usg=AFQjCNH8kpw6Jiuj_oCIIbWiwucXtrhHsg\">2017 SCC 34<\/a>, with the majority holding in the 7-2 decision:\u00a0<span class=\"CitationCar\">Held\u00a0<\/span><span class=\"CitationCar\">(C\u00f4t\u00e9 and Rowe JJ. dissenting):<\/span>\u00a0The appeal is dismissed and the worldwide interlocutory injunction against Google is upheld.<\/p>\n<p>The majority wrote that the trial judge should be given deference in determining an interlocutory injunction, and where it is necessary to ensure the injunction\u2019s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world, including in this case against third-party Google. The underlying proceeding related to passing off and trade secret infringement by a defendant which was conducted outside B.C. through a series of changing websites.<\/p>\n<p>So,\u00a0Canada&#8217;s highest court upheld an injunction ordering Google to remove certain websites ruled to be infringing intellectual property from its search engine, GLOBALLY!<\/p>\n<h4>Status:<\/h4>\n<p>Google\u00a0has filed a lawsuit in California federal court against Equustek.<\/p>\n<p style=\"padding-left: 30px;\">&#8220;<a href=\"https:\/\/assets.documentcloud.org\/documents\/3900043\/Google-v-Equustek-Complaint.pdf\" target=\"_blank\" rel=\"noopener noreferrer\">Google brings this action to prevent enforcement in the United States<\/a> of a Canadian order that prohibits Google from publishing within the United States search result information about the contents of the internet,&#8221; states the introduction in the complaint (courtesy of Wired).<\/p>\n<h2>Issue in Google v Equustek Interim Injunction:<\/h2>\n<p class=\"SCCNormalDoubleSpacing\"><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Per\u00a0<\/i>McLachlin\u00a0C.J. and<i>\u00a0<\/i><b>Abella<\/b>, Moldaver, Karakatsanis, Wagner, Gascon and Brown\u00a0JJ.: The issue is whether Google can be ordered, pending a trial, to globally de\u2011index D\u2019s websites which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company.<\/p>\n<h2>Problems with Interim Injunctions and Preliminary Injunctions<\/h2>\n<ul>\n<li><strong>Lack of a sunset clause:<\/strong>\n<ul>\n<li>Since the Defendant left the jurisdiction and was noted in default, Equustek may never set the matter down for trial.<\/li>\n<li>Google will have a never ending obligation to block the Defendant&#8217;s successive websites selling any modem products.<\/li>\n<\/ul>\n<\/li>\n<li><strong>Lack of analysis of the merits in the underlying action:<\/strong>\n<ul>\n<li>Without a trial, no judge has taken a hard look at the facts and the causes of action.<\/li>\n<\/ul>\n<\/li>\n<li><strong>The\u00a0Worldwide Injunction sets a strong precedent for courts in other countries<br \/>\n<\/strong><\/li>\n<li><strong>The injunction results in an absurd result that is not legally sound.<\/strong>\n<ul>\n<li>Equustek v Google is a strange trade secrets case to limit global sales of a tech product without any patent.<\/li>\n<li>The global reach seems absurd that the defendant can&#8217;t design or sell any modems or routers anywhere in the world.<\/li>\n<li>Trade Secrets are not global patents.<\/li>\n<li>The injuction should be limited to the P&#8217;s rights in the jurisdiction. See France v eBay.<\/li>\n<li>The public has right to see what is on the web in other countries.<\/li>\n<li>The order is like a SOPA order. The US Congress rejected SOPA due to public opinion.<\/li>\n<li>If a Russian court prohibited Google from displaying search results about Russian hacking of a US election, should Google honor it worldwide?<\/li>\n<li><a href=\"http:\/\/www.hollywoodreporter.com\/thr-esq\/google-has-a-big-canadian-problem-getting-desperate-1024149\" target=\"_blank\" rel=\"noopener noreferrer\">Hollywood forum-shopping its piracy cleanup north of the border<\/a>? The <a href=\"http:\/\/www.hollywoodreporter.com\/thr-esq\/piracy-fight-google-dealt-huge-802104\" target=\"_blank\" rel=\"noopener noreferrer\">film and music industries intervened<\/a> to ensure that Equustek got what it wanted.<\/li>\n<li>Europe looking to impose a &#8220;right to be forgotten&#8221; worldwide?<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<h3>Majority Opinion Summary<\/h3>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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 \u201cinterlocutory\u201d is not dependent on their duration pending trial.\u00a0Ultimately, the question is whether granting the injunction is just and equitable in the circumstances of the case.<\/p>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The test for determining whether the court should exercise its discretion to grant an interlocutory injunction against Google has been met in this case: there is a serious issue to be tried; E is suffering irreparable harm as a result of D\u2019s ongoing sale of its competing product through the Internet; and the balance of convenience is in favour of granting the order sought.<\/p>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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\u2011indexing D\u2019s websites. Its arguments are that the injunction is not necessary to prevent irreparable harm to E and is not effective; that as a non\u2011party 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\u00a0balanceagainst granting the order.<\/p>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Injunctive relief can be ordered against someone who is not a party to the underlying lawsuit. When non\u2011parties 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.\u00a0It is common ground that D was unable to carry on business in a commercially viable way without its websites appearing on Google. The injunction in this case flows from the necessity of Google\u2019s assistance to prevent the facilitation of D\u2019s 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.<\/p>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Where it is necessary to ensure the injunction\u2019s 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 \u2014 its natural habitat is global.\u00a0The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates \u2014 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 D\u2019s websites, and Canadian purchasers could find D\u2019s websites even if those websites were de\u2011indexed on google.ca.<\/p>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Google\u2019s 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.\u00a0If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google\u2019s 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<i>\u00a0<\/i>to demonstrate, country by country, where such an order is legally permissible.<\/p>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 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 \u2014 at the expense of E\u2019s survival \u2014 on Google\u2019s search engine which directs potential customers to D\u2019s websites. This makes Google the determinative player in allowing the harm to occur. On balance, since the world\u2011wide 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\u2011existent, the interlocutory injunction should be upheld.<\/p>\n<h2>Dissent<\/h2>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<i>Per<\/i>\u00a0<b>C\u00f4t\u00e9<\/b>\u00a0and\u00a0<b>Rowe<\/b>\u00a0JJ. (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.<\/p>\n<h3>The Google Order is Effectively a Final Order<\/h3>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 First, the Google Order in effect amounts to a final determination of the action because it removes any potential benefit from proceeding to trial. In its original underlying claim, E sought injunctions modifying the way D carries out its website business. E has been given more injunctive relief than it sought in its originating claim, including requiring D to cease website business altogether. Little incentive remains for E to return to court to seek a lesser injunctive remedy. This is evidenced by E\u2019s 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.\u00a0In these circumstances, an extensive review of the merits of this case was therefore required but was not carried out by the court below, contrary to caselaw. The Google Order does not meet the test for a permanent injunction. Although E\u2019s claims were supported by a good\u00a0<i>prima facie<\/i>\u00a0case, it was not established that D designed and sold counterfeit versions of E\u2019s product, or that this resulted in trademark infringement and unlawful appropriation of trade secrets.<\/p>\n<h3>Google is a Non\u2011party<\/h3>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Second, Google is a non\u2011party to the proceedings between E and D. E alleged that Google\u2019s search engine was facilitating D\u2019s ongoing breach by leading customers to D\u2019s 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.<\/p>\n<h3>Google Order is mandatory and requires ongoing modification and supervision<\/h3>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Third, the Google Order is mandatory and requires ongoing modification and supervision because D is launching new websites to replace de\u2011listed ones. Courts should avoid granting injunctions that require such cumbersome court\u2011supervised updating.<\/p>\n<h3>Google Order Has Not Been Effective<\/h3>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Furthermore, the Google Order has not been shown to be effective in making D cease operating or carrying on business through any website. Moreover, the Google Order does not assist E in modifying D\u2019s websites, as E sought in its originating claim for injunctive relief. The most that can be said is the Google Order might reduce the harm to E. But it has not been shown that the Google Order is effective in doing so. D\u2019s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word\u2011of\u2011mouth, or other indirect means. D\u2019s websites are open for business on the Internet whether Google searches list them or not.<\/p>\n<h3>Alternative Remedies Are Available<\/h3>\n<p class=\"SCCNormalDoubleSpacing\">\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Finally, there are alternative remedies available to E. E sought a world\u2011wide\u00a0<i>Mareva\u00a0<\/i>injunction to freeze D\u2019s 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.<\/p>\n<h3>The Interim Injunction is a Fiction<\/h3>\n<p>[<a class=\"paragAnchor\" name=\"par63\"><\/a>63]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As 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. <strong>The Google Order, while interlocutory in form, is final in effect. Thus, it gives Equustek more relief than it sought.<\/strong><\/p>\n<p><img loading=\"lazy\" decoding=\"async\" class=\"alignnone size-large wp-image-47\" src=\"http:\/\/canlawblog.com\/wp-content\/uploads\/2017\/06\/equustek-worldwide-injunction-against-google-1024x756.png\" alt=\"Equustek's Worldwide Injunction Against Google\" width=\"640\" height=\"473\" \/><\/p>\n<p><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/case-dossier\/info\/webcastview-webdiffusionvue-eng.aspx?cas=36602&amp;urlen=http%3a%2f%2fcivic.neulion.com%2fsccen%2fliveembed.php%3fclipid%3d3495286%2c000&amp;urlfr=http%3a%2f%2fcivic.neulion.com%2fsccfr%2fliveembed.php%3fclipid%3d3495294%2c000&amp;date=2016-12-06\">Webcast of the Supreme Court of Canada hearing on 2016-12-06<\/a><\/p>\n<ul>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM010_Appellant_Google-Inc.pdf\">Appellant Google-Inc.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM015_Appellant_Google-Inc_Reply.pdf\">Appellant Google-Inc Reply.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM020_Respondent_Equustek-Solutions-Inc.pdf\">Respondent Equustek-Solutions-Inc.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM025_Respondent_Equustek-Solutions-Inc_Reply.pdf\">Respondent Equustek-Solutions-Inc Reply.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM030_Intervener_OpenMedia-Engagement-Network.pdf\">Intervener OpenMedia-Engagement-Network.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM040_Intervener_British-Columbia-Civil-Liberties-Association.pdf\">Intervener British-Columbia-Civil-Liberties-Association.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM050_Intervener_Wikimedia-Foundation.pdf\">Intervener Wikimedia-Foundation.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM060_Intervener_Attorney-General-of-Canada.pdf\">Intervener Attorney-General-of-Canada.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM065_Interveners_International-Federation-of-the-Phonographic-Industry-et-al.pdf\">Interveners International-Federation-of-the-Phonographic-Industry-et-al.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM070_Interveners_Human-Rights-Watch-et-al.pdf\">Interveners Human-Rights-Watch-et-al.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM075_Intervener_Attorney-General-of-Ontario.pdf\">Intervener Attorney-General-of-Ontario.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM080_Intervener_Canadian-Civil-Liberties-Association.pdf\">Intervener Canadian-Civil-Liberties-Association.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM085_Intervener_Reporters-Committee-for-Freedom-of-the-Press-et-al.pdf\">Intervener Reporters-Committee-for-Freedom-of-the-Press-et-al.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM090_Intervener_Electronic-Frontier_Foundation.pdf\">Intervener Electronic-Frontier Foundation.pdf<\/a><\/li>\n<li><a class=\"ui-link\" href=\"http:\/\/www.scc-csc.ca\/WebDocuments-DocumentsWeb\/36602\/FM095_Intervener_International-Federation-of-Film-Producers-Associations-et-al.pdf\">Intervener International-Federation-of-Film-Producers-Associations-et-al.pdf<\/a><\/li>\n<\/ul>\n<p>&nbsp;<\/p>\n<p><strong>Cases Cited<\/strong><\/p>\n<p>By Abella\u00a0J.<\/p>\n<p><strong>Applied:<\/strong>\u00a0<em>RJR \u2014 MacDonald Inc. v. Canada (Attorney General)<\/em>, [1994] 1 S.C.R. 311;\u00a0<em>MacMillan Bloedel Ltd. v. Simpson<\/em>, [1996] 2 S.C.R. 1048;\u00a0<strong>considered<\/strong>:\u00a0<em>Norwich Pharmacal Co. v. Customs and Excise Commissioners<\/em>, [1974] A.C. 133;\u00a0<em>Mareva Compania Naviera SA v. International Bulkcarriers SA<\/em>, [1975] 2 Lloyd\u2019s Rep.\u00a0509;\u00a0<strong>referred to:<\/strong>\u00a0<em>Manitoba (Attorney General) v. Metropolitan Stores Ltd.<\/em>, [1987] 1 S.C.R. 110;\u00a0<em>Seaward v. Paterson<\/em>, [1897] 1 Ch.\u00a0545;\u00a0<em>York University v. Bell Canada Enterprises<\/em>(2009), 311 D.L.R. (4th) 755;\u00a0<em>Cartier International AG v. British Sky Broadcasting Ltd.<\/em>, [2016] EWCA Civ 658, [2017] 1 All E.R. 700;\u00a0<em>Warner\u2011Lambert Co. v. Actavis Group PTC EHF<\/em>, [2015] EWHC 485 (Pat.), 144 B.M.L.R. 194;\u00a0<em>Aetna Financial Services Ltd. v. Feigelman<\/em>, [1985] 1 S.C.R. 2;\u00a0<em>Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc.<\/em>, 2007 SCC 20, [2007] 1 S.C.R. 867;\u00a0<em>Mooney v. Orr<\/em>(1994), 98 B.C.L.R. (2d) 318;\u00a0<em>Babanaft International Co. S.A. v. Bassatne<\/em>, [1990] 1 Ch.\u00a013;\u00a0<em>Republic of Haiti v. Duvalier<\/em>, [1990] 1 Q.B. 202;\u00a0<em>Derby &amp; Co. v. Weldon<\/em>, [1990] 1 Ch.\u00a048;\u00a0<em>Derby &amp; Co. v. Weldon (Nos.\u00a03 and 4)<\/em>, [1990] 1 Ch.\u00a065.<\/p>\n<p>By C\u00f4t\u00e9 and Rowe\u00a0JJ. (dissenting)<\/p>\n<p><strong>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<\/strong><em>RJR \u2014 MacDonald Inc. v. Canada (Attorney General)<\/em>, [1994] 1 S.C.R. 311;\u00a0<em>Fourie v. Le Roux<\/em>, [2007] UKHL 1, [2007] 1 All E.R. 1087;\u00a0<em>Guaranty Trust Co. of New York v. Hannay &amp; Co.<\/em>, [1915] 2 K.B. 536;\u00a0<em>Cartier International AG v. British Sky Broadcasting Ltd.<\/em>, 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949;\u00a0<em>Mercedes Benz A.G. v. Leiduck<\/em>, [1996] 1 A.C. 284;\u00a0<em>John Deere Ltd. v. Firdale Farms Ltd.<\/em>\u00a0(1987), 45 D.L.R. (4th) 641;\u00a0<em>Parkin v. Thorold<\/em>\u00a0(1852), 16 Beav. 59, 51 E.R. 698;\u00a0<em>Schooff v. British Columbia (Medical Services Commission)<\/em>, 2010 BCCA 396, 323 D.L.R. (4th) 680;\u00a0<em>McIsaac v. Healthy Body Services Inc.<\/em>, 2009 BCSC 1716;\u00a0<em>Plouffe v. Roy<\/em>, 2007 CanLII 37693;\u00a0<em>Spiller v. Brown<\/em>\u00a0(1973), 43 D.L.R. (3d) 140;\u00a0<em>1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd.<\/em>, 2014 ONCA 125, 371 D.L.R. (4th) 643;\u00a0<em>MacMillan Bloedel Ltd. v. Simpson<\/em>, [1996] 2 S.C.R. 1048;\u00a0<em>Seaward v. Paterson<\/em>, [1897] 1 Ch.\u00a0545;\u00a0<em>Acrow (Automation) Ltd. v. Rex Chainbelt Inc.<\/em>, [1971] 1 W.L.R. 1676;\u00a0<em>Norwich Pharmacal Co. v. Customs and Excise Commissioners<\/em>, [1974] A.C. 133;\u00a0<em>National Commercial Bank of Jamaica Ltd. v. Olint Corp.<\/em>, [2009] 1 W.L.R. 1405;\u00a0<em>Redland Bricks Ltd. v. Morris<\/em>, [1970] A.C. 652;\u00a0<em>Co\u2011operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd.<\/em>, [1998] A.C. 1;\u00a0<em>Attorney General v. Observer Ltd.<\/em>, [1990] 1 A.C. 109.<\/p>\n<p><strong>Statutes and Regulations Cited<\/strong><\/p>\n<p><em>Digital Millennium Copyright Act<\/em>, Pub. L. No.\u00a0105\u2011304, 112 Stat. 2680 (1998).<\/p>\n<p><em>Law and Equity Act<\/em>, R.S.B.C. 1979, c.\u00a0224, s.\u00a036.<\/p>\n<p><em>Law and Equity Act<\/em>, R.S.B.C. 1996, c.\u00a0253, s.\u00a039(1).<\/p>\n<p><strong>Authors Cited<\/strong><\/p>\n<p>Bean, David, Andrew Burns and Isabel Parry.\u00a0<em>Injunctions<\/em>, 11th ed. London: Sweet &amp; Maxwell, 2012.<\/p>\n<p>Berryman, Jeffrey.\u00a0<em>The Law of Equitable Remedies<\/em>, 2nd ed. Toronto: Irwin Law, 2013.<\/p>\n<p>Black, Vaughan, and Edward Babin. \u201cMareva Injunctions in Canada: Territorial Aspects\u201d (1997), 28\u00a0<em>Can. Bus. L.J.<\/em>\u00a0430.<\/p>\n<p>Fraser, Peter\u00a0G., John\u00a0W.\u00a0Horn and Susan\u00a0A. Griffin.\u00a0<em>The Conduct of Civil Litigation in British Columbia<\/em>, 2nd ed. Markham, Ont.: LexisNexis, 2007 (loose\u2011leaf updated December 2016, release 24).<\/p>\n<p>Pitel, Stephen\u00a0G.\u00a0A., and Andrew Valentine. \u201cThe Evolution of the Extra\u2011territorial\u00a0<em>Mareva<\/em>\u00a0Injunction in Canada: Three Issues\u201d (2006), 2\u00a0<em>J. Priv. Int\u2019l L.<\/em>\u00a0339.<\/p>\n<p>Riordan, Jaani.\u00a0<em>The Liability of Internet Intermediaries<\/em>. Oxford: Oxford University Press, 2016.<\/p>\n<p>Sharpe, Robert\u00a0J.\u00a0<em>Injunctions and Specific Performance<\/em>, loose\u2011leaf ed. Toronto: Canada Law Book, 1992 (updated November 2016, release 25).<\/p>\n<p>Spry, I. C. F.\u00a0<em>The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages<\/em>, 9th ed. Pyrmont, N.S.W.: Lawbook, 2014.<\/p>\n<p>APPEAL from a judgment of the British Columbia Court of Appeal (Frankel, Groberman and Harris\u00a0JJ.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.\u00a01193 (QL), 2015 CarswellBC 1590 (WL Can.), affirming a decision of Fenlon\u00a0J., 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.\u00a01190 (QL), 2014 CarswellBC 1694 (WL Can.), granting an interlocutory injunction against Google. Appeal dismissed, C\u00f4t\u00e9 and Rowe\u00a0JJ. dissenting.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0William\u00a0C. McDowell<\/i>,\u00a0<i>Marguerite\u00a0F. Ethier<\/i>\u00a0and\u00a0<em>Scott\u00a0M.\u00a0J. Rollwagen<\/em>, for the appellant.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Robbie Fleming<\/i>\u00a0and\u00a0<em>Michael Sobkin<\/em>, for the respondents.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Jeffrey\u00a0G. Johnston<\/i>, for the intervener the Attorney General of Canada.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Sandra Nishikawa<\/i>,\u00a0<i>John Corelli<\/i>\u00a0and\u00a0<i>Brent Kettles<\/i>, for the intervener the Attorney General of Ontario.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Mathew Good<\/i>, for the intervener the Canadian Civil Liberties Association.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Cynthia Khoo<\/i>, for the intervener the OpenMedia Engagement Network.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Written submissions only by\u00a0Iris Fischer<\/i>\u00a0and\u00a0<i>Helen Richards<\/i>, 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 &amp; 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.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Written submissions only by\u00a0Paul Schabas<\/i>\u00a0and\u00a0<i>Kaley Pulfer<\/i>, for the interveners Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software Freedom Law Centre and the Center for Technology and Society.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Written submissions only by\u00a0David\u00a0T.\u00a0S. Fraser<\/i>\u00a0and\u00a0<i>Jane O\u2019Neill<\/i>, for the intervener the Wikimedia Foundation.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Justin Safayeni<\/i>\u00a0and\u00a0<i>Carlo Di Carlo<\/i>, for the intervener the British Columbia Civil Liberties Association.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0David Wotherspoon<\/i>\u00a0and\u00a0<i>Daniel Byma<\/i>, for the intervener the Electronic Frontier Foundation.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Dan Glover<\/i>\u00a0and\u00a0<i>Miranda Lam<\/i>, for the interveners the International Federation of the Phonographic Industry, Music Canada, the Canadian Publishers\u2019 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.<\/p>\n<p><i>\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Gavin MacKenzie<\/i>\u00a0and\u00a0<i>Brooke MacKenzie<\/i>, for the intervener the International Federation of Film Producers Associations.<\/p>\n<p>&nbsp;<\/p>\n<p>The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown\u00a0JJ. was delivered by<\/p>\n<p>&nbsp;<\/p>\n<p>Abella J. \u2014<\/p>\n<p>[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The 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.<\/p>\n<p><u>Background<\/u><\/p>\n<p>[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Equustek 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.<\/p>\n<p>[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The underlying action between Equustek and the Datalink defendants (Morgan Jack, Datalink Technology Gateways Inc., and Datalink Technologies Gateways LLC \u2013 \u201cDatalink\u201d) was launched by Equustek on April 12, 2011. It claimed that Datalink, while acting as a distributor of Equustek\u2019s products, began to re-label one of the products and pass it off as its own. Datalink also acquired confidential information and trade secrets belonging to Equustek, using them to design and manufacture a competing product, the GW1000. Any orders for Equustek\u2019s product were filled with the GW1000. When Equustek discovered this in 2011, it terminated the distribution agreement it had with Datalink and demanded that Datalink delete all references to Equustek\u2019s products and trademarks on its websites.<\/p>\n<p>[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Datalink defendants filed statements of defence disputing Equustek\u2019s claims.<\/p>\n<p>[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On September 23, 2011, Leask J. granted an injunction ordering Datalink to return to Equustek any source codes, board schematics, and any other documentation it may have had in its possession that belonged to Equustek. The court also prohibited Datalink from referring to Equustek or any of Equustek\u2019s products on its websites. It ordered Datalink to post a statement on its websites informing customers that Datalink was no longer a distributor of Equustek products and directing customers interested in Equustek\u2019s products to Equustek\u2019s website. In addition, Datalink was ordered to give Equustek a list of customers who had ordered an Equustek product from Datalink.<\/p>\n<p>[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On 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.<\/p>\n<p>[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Datalink abandoned the proceedings and left the jurisdiction without producing any documents or complying with any of the orders. Some of Datalink\u2019s statements of defence were subsequently struck.<\/p>\n<p>[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On July 26, 2012, Punnett J. granted a\u00a0<em>Mareva<\/em>\u00a0injunction freezing Datalink\u2019s worldwide assets, including its entire product inventory. He found that Datalink had incorporated \u201ca myriad of shell corporations in different jurisdictions\u201d, 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.<\/p>\n<p>[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On August 3, 2012, Fenlon J. granted another interlocutory injunction prohibiting Datalink from dealing with broader classes of intellectual property, including \u201cany use of whole categories of documents and information that lie at the heart of any business of a kind engaged in by both parties\u201d. She noted that Equustek\u2019s \u201cearnings ha[d] fallen drastically since [Datalink] began [its] impugned activities\u201d and concluded that \u201cthe effect of permitting [Datalink] to carry on [its] business [would] also cause irreparable harm to [Equustek]\u201d.<\/p>\n<p>[10]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On September 26, 2012, Equustek brought an application to have Datalink and its principal, Morgan Jack, found in contempt. No one appeared on behalf of Datalink. Groves J. issued a warrant for Morgan Jack\u2019s arrest. It remains outstanding.<\/p>\n<p>[11]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Despite the court orders prohibiting the sale of inventory and the use of Equustek\u2019s 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.<\/p>\n<p>[12]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Not knowing where Datalink or its suppliers were, and finding itself unable to have the websites removed by the websites\u2019 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.<\/p>\n<p>[13]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0When 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.<\/p>\n<p>[14]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0On December 13, 2012, Equustek appeared in court with Google. An injunction was issued by Tindale J. ordering Datalink to \u201ccease operating or carrying on business through any website\u201d. 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\u00a0<em>all<\/em>\u00a0of the Datalink websites.<\/p>\n<p>[15]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Equustek 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.<\/p>\n<p>[16]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google had limited the de-indexing to those searches that were conducted on google.ca. Google\u2019s 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 \u201cgoogle.ca\u201d 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 country\u2019s Google URL. Potential Canadian customers could, as a result, find Datalink\u2019s websites even if they were blocked on google.ca. Given that the majority of the sales of Datalink\u2019s GW1000 were to purchasers outside of Canada, Google\u2019s de-indexing did not have the necessary protective effect.<\/p>\n<p>[17]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Equustek 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:<\/p>\n<p>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 \u2026, including all of the subpages and subdirectories of the listed websites,\u00a0<em>until the conclusion of the trial of this action or further order of this court<\/em>.<em>\u00a0<\/em>[Emphasis added]<\/p>\n<p>[18]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Fenlon J. noted that Google controls between 70-75 percent of the global searches on the Internet and that Datalink\u2019s ability to sell its counterfeit product is, in large part, contingent on customers being able to locate its websites through the use of Google\u2019s 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.<\/p>\n<p>[19]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Fenlon J. concluded that this irreparable harm was being facilitated through Google\u2019s search engine; that Equustek had no alternative but to require Google to de-index the websites; that Google would not be inconvenienced; and that, for the order to be effective, the Datalink websites had to be prevented from being displayed on all of Google\u2019s search results, not just google.ca. As she said:<\/p>\n<p>On the record before me it appears that to be effective, even within Canada, Google must block search results on all of its websites. Furthermore, [Datalink\u2019s] sales originate primarily in other countries, so the Court\u2019s process cannot be protected unless the injunction ensures that searchers from any jurisdiction do not find [Datalink\u2019s] websites.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn1\" name=\"_ftnref1\"><sup>[1]<\/sup><\/a><\/p>\n<p>[20]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Court of Appeal of British Columbia dismissed Google\u2019s appeal (386 D.L.R. (4th) 224). Groberman J.A. accepted Fenlon J.\u2019s conclusion that she had\u00a0<em>in personam\u00a0<\/em>jurisdiction over Google and could therefore make an order with extraterritorial effect. He also agreed that courts of inherent jurisdiction could grant equitable relief against non-parties. Since ordering an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court\u2019s 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.<\/p>\n<p>[21]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For 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.<\/p>\n<p><u>Analysis<\/u><\/p>\n<p>[22]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The decision to grant an interlocutory injunction is a discretionary one and entitled to a high degree of deference (<em>Manitoba (Attorney General) v. Metropolitan Stores Ltd.<\/em>,<em>\u00a0<\/em>[1987] 1 S.C.R. 110, at pp. 155-56). In this case, I see no reason to interfere.<\/p>\n<p>[23]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Injunctions are equitable remedies. \u201cThe powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited\u201d (Ian Spry,\u00a0<em>The Principles of Equitable Remedies\u00a0<\/em>(9th ed. 2014), at p. 333).\u00a0 Robert Sharpe notes that \u201c[t]he injunction is a flexible and drastic remedy. Injunctions are not restricted to any area of substantive law and are readily enforceable through the court\u2019s contempt power\u201d (<em>Injunctions and Specific Performance<\/em>\u00a0(loose-leaf ed.), at para. 2.10).<\/p>\n<p>[24]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0An 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 \u201cpreserved\u201d so that effective relief will be available when the case is ultimately heard on the merits (Jeffrey Berryman,\u00a0<em>The Law of Equitable Remedies<\/em>\u00a0(2nd ed. 2013), at pp. 24-25). Their character as \u201cinterlocutory\u201d is not dependent on their duration pending trial.<\/p>\n<p>[25]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<em>RJR\u2014MacDonald Inc. v. Canada (Attorney General),\u00a0<\/em>[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.<\/p>\n<p>[26]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google does not dispute that there is a serious claim. Nor does it dispute that Equustek is suffering irreparable harm as a result of Datalink\u2019s ongoing sale of the GW1000 through the Internet. And it acknowledges, as Fenlon J. found, that it inadvertently<strong>\u00a0<\/strong>facilitates the harm through its search engine which leads purchasers directly to the Datalink websites.<\/p>\n<p>[27]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google 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.\u00a0 Moreover, it argues that as a non-party, it should be immune from the injunction. As for the balance of convenience,<strong>\u00a0<\/strong>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.<\/p>\n<p>[28]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google\u2019s 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\u00a0<em>MacMillan Bloedel Ltd. v. Simpson\u00a0<\/em>[1996] 2 S.C.R. 1048, injunctions may be issued \u2018\u201cin 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\u201d\u2019 (para. 15, citing s. 36 of the\u00a0<em>Law and Equity Act<\/em>, R.S.B.C. 1979, c. 224).\u00a0<em>MacMillan Bloedel<\/em>\u00a0involved a logging company seeking to restrain protesters from blocking roads. The company obtained an interlocutory injunction prohibiting not only specifically named individuals, but also \u201cJohn Doe, Jane Doe and Persons Unknown\u201d and \u201call persons having notice of th[e] order\u201d from engaging in conduct which interfered with its operations at specific locations. In upholding the injunction, McLachlin J. noted that<\/p>\n<p>[i]t may be confidently asserted . . .\u00a0<em>that both English and Canadian authorities support the view that non-parties are bound by injunctions<\/em>: 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]<\/p>\n<p>&nbsp;<\/p>\n<p>See also Berryman, at pp. 57-60; Sharpe, at paras. 6.260 to 6.265.<\/p>\n<p>[29]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In other words, where a non-party violates a court order, there is a principled basis for treating the non-party as if it had been bound by the order. The non-party\u2019s obligation arises\u00a0\u201cnot 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\u201d (<em>MacMillan Bloedel<\/em>, at para. 27, quoting\u00a0<em>Seaward v. Paterson<\/em>, [1897] 1 Ch. 545 (C.A.), at p. 555).<\/p>\n<p>[30]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The pragmatism and necessity of such an approach was concisely explained by Fenlon J. in the case before us when she offered the following example:<\/p>\n<p>. . . 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\u2019 goods and refrain from shipping them. That injunction could affect orders received from customers around the world. Could it sensibly be argued that the Court could not grant the injunction because it would have effects worldwide? The impact of an injunction on strangers to the suit or the order itself is a valid consideration in deciding whether to exercise the Court\u2019s jurisdiction to grant an injunction. It does not, however, affect the Court\u2019s authority to make such an order.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn2\" name=\"_ftnref2\"><sup>[2]<\/sup><\/a><\/p>\n<p>[31]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<em>Norwich\u00a0<\/em>orders are analogous and can also be used to compel non-parties to disclose information or documents in their possession required by a claimant (<em>Norwich Pharmacal Co. v. Customs and Excise Commissioners<\/em>,<em>\u00a0<\/em>[1974] A.C. 133 (H.L.), at p. 175).\u00a0<em>Norwich\u00a0<\/em>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 (<em>York University v. Bell Canada Enterprises<\/em>\u00a0(2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.)).\u00a0\u00a0<em>Norwich\u00a0<\/em>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\u00a0<em>Norwich<\/em>,<em>\u00a0<\/em>this was characterized as a duty to assist the person wronged (p. 175;\u00a0<em>Cartier<\/em><em>\u00a0International AG v. British Sky Broadcasting Ltd<\/em>.,<em>\u00a0<\/em>[2017], 1 All E.R. 700 (C.A.), at para. 53).\u00a0<em>Norwich\u00a0<\/em>supplies a principled rationale for granting injunctions against non-parties who facilitate wrongdoing (see\u00a0<em>Cartier<\/em>, at paras. 51-55; and\u00a0<em>Warner-Lambert Co. v. Actavis Group PTC EHF<\/em>, 144 B.M.L.R. 194 (Ch.)).<\/p>\n<p>[32]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0This approach was applied in\u00a0<em>Cartier<\/em>, where the Court of Appeal of England and Wales held that injunctive relief could be awarded against five non-party Internet service providers who had not engaged in, and were not accused of any wrongful act. The Internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of the plaintiff\u2019s trademarks. (See also Jaani Riordan,\u00a0<em>The Liability of Internet Intermediaries<\/em>\u00a0(2016), at pp. 412 and 498-99.)<\/p>\n<p>[33]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The same logic underlies\u00a0<em>Mareva\u00a0<\/em>injunctions, which can also be issued against non-parties.\u00a0<em>Mareva\u00a0<\/em>injunctions are used to freeze assets in order to prevent their dissipation pending the conclusion of a trial or action (<em>Mareva Compania Naviera SA v. International Bulkcarriers SA<\/em>, [1975] 2 Lloyd\u2019s Rep. 509 (C.A.);\u00a0<em>Aetna Financial Services Ltd. v. Feigelman<\/em>,<em>\u00a0<\/em>[1985] 1 S.C.R. 2). A\u00a0<em>Mareva<\/em>\u00a0injunction 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, \u201cThe Evolution of the Extra-territorial\u00a0<em>Mareva\u00a0<\/em>Injunction in Canada: Three Issues\u201d (2006), 2 J. Priv. Int\u2019l L. 339, at p. 370; Vaughan Black and Edward Babin, \u201cMareva Injunctions in Canada: Territorial Aspects\u201d (1997), 28\u00a0<em>Can. Bus. L.J.<\/em>\u00a0430, at pp. 452-53; Berryman, at pp. 128-31). Banks and other financial institutions have, as a result, been bound by\u00a0<em>Mareva\u00a0<\/em>injunctions even when they are not a party to an underlying action.<\/p>\n<p>[34]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0To preserve Equustek\u2019s rights pending the outcome of the litigation, Tindale J.\u2019s order of December 13, 2012 required Datalink to cease carrying on business through the Internet. Google had requested and participated in Equustek\u2019s obtaining this order, and offered to comply with it voluntarily.<strong>\u00a0<\/strong>It is common ground that Datalink was unable to carry on business in a commercially viable way unless its websites were in Google\u2019s search results. In the absence of de-indexing these websites, as Fenlon J. specifically found, Google was facilitating Datalink\u2019s breach of Tindale J.\u2019s order by enabling it to continue carrying on business through the Internet. By the time Fenlon J. granted the injunction against Google, Google was aware that in not de-indexing Datalink\u2019s websites, it was facilitating Datalink\u2019s ongoing breach of Tindale J.\u2019s order, the purpose of which was to prevent irreparable harm to Equustek.<\/p>\n<p>[35]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Much like a\u00a0<em>Norwich<\/em>\u00a0order or a\u00a0<em>Mareva\u00a0<\/em>injunction against a non-party, the interlocutory injunction in this case flows from the necessity of Google\u2019s assistance in order to prevent the facilitation of Datalink\u2019s 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.<\/p>\n<p>[36]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google\u2019s next argument is the impropriety of issuing an interlocutory injunction with extraterritorial effect. But this too contradicts the existing jurisprudence.<\/p>\n<p>[37]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The 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\u00a0<em>in personam\u00a0<\/em>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.<\/p>\n<p>[38]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0When a court has\u00a0<em>in personam\u00a0<\/em>jurisdiction, and where it is necessary to ensure the injunction\u2019s effectiveness, it can grant an injunction enjoining that person\u2019s conduct anywhere in the world. (See\u00a0<em>Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc.<\/em>, [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.)\u00a0<em>Mareva<\/em>injunctions have been granted with worldwide effect when it was found to be necessary to ensure their effectiveness. (See\u00a0<em>Mooney v. Orr\u00a0<\/em>(1994), 98 B.C.L.R. (2d) 318 (S.C.); Berryman, at pp. 20 and 136;\u00a0<em>Babanaft International Co. S.A. v. Bassatne<\/em>, [1990] 1 Ch. 13 (C.A.);\u00a0<em>Republic of Haiti v. Duvalier<\/em>,<em>\u00a0<\/em>[1990] 1 Q.B. 202 (C.A.);\u00a0<em>Derby &amp; Co. v. Weldon,\u00a0<\/em>[1990] 1 Ch. 48 (C.A.); and\u00a0<em>Derby &amp; Co. v. Weldon (Nos. 3 and 4)\u00a0<\/em>[1990] 1 Ch. 65 (C.A.); Sharpe, at paras. 1.1190 to 1.1220.)<\/p>\n<p>[39]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Groberman J.A. pointed to the international support for this approach:<\/p>\n<p>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\u00a0<em>APC v. Auchan Telecom<\/em>, 11\/60013, Judgment (28 November 2013) (Tribunal de Grande Instance de Paris);\u00a0<em>McKeogh v. Doe<\/em>\u00a0(Irish High Court, case no. 20121254P);\u00a0<em>Mosley v. Google<\/em>, 11\/07970, Judgment (6 November 2013) (Tribunal de Grande Instance de Paris);\u00a0<em>Max Mosley v. Google<\/em>\u00a0(see \u201cCase Law, Hamburg District Court:\u00a0<em>Max Mosley v. Google Inc.<\/em>\u00a0online: Inform\u2019s 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\u00a0<em>ECJ Google Spain SL, Google Inc. v. Agencia Espa\u00f1ola de Protecci\u00f3n de Datos<\/em>, Mario Costeja Gonz\u00e1lez, C-131\/12 [2014], CURIA.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn3\" name=\"_ftnref3\"><sup>[3]<\/sup><\/a><\/p>\n<p>[40]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Fenlon J. explained why Equustek\u2019s request that the order have worldwide effect was necessary as follows:<\/p>\n<p>The majority of GW1000 sales occur outside Canada. Thus, quite apart from the practical problem of endless website iterations, the option Google proposes is not equivalent to the order now sought which would compel Google to remove the [Datalink] websites from all search results generated by any of Google\u2019s websites worldwide. I therefore conclude that [Equustek does] not have an out-of-court remedy available to [it].<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn4\" name=\"_ftnref4\"><sup>[4]<\/sup><\/a><\/p>\n<p>&nbsp;<\/p>\n<p>. . .<\/p>\n<p>&nbsp;<\/p>\n<p>. . . to be effective, even within Canada, Google must block search results on all of its websites.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn5\" name=\"_ftnref5\"><sup>[5]<\/sup><\/a><\/p>\n<p>As a result, to ensure that Google did not<strong>\u00a0<\/strong>facilitate Datalink\u2019s breach of court orders whose purposes were to prevent irreparable harm to Equustek, she concluded that the injunction had to have worldwide effect.<\/p>\n<p>[41]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0I agree. The problem in this case is occurring online and globally. The Internet has no borders \u2014 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 \u2014 globally. As Fenlon J. found, the majority of Datalink\u2019s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink\u2019s websites, and Canadian purchasers could easily find Datalink\u2019s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink\u2019s breach of the court\u2019s 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.<\/p>\n<p>[42]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the Internet, a business which would be commercially impossible without Google\u2019s facilitation. The order targets Datalink\u2019s websites \u2014 the list of which has been updated as Datalink has sought to thwart the injunction \u2014 and prevents them from being displayed where they do the most harm: on Google\u2019s global search results.<\/p>\n<p>[43]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Nor does the injunction\u2019s worldwide effect tip the balance of convenience in Google\u2019s 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 \u2014 and does \u2014 with relative ease. There is therefore no harm to Google which can be placed on its \u201cinconvenience\u201d scale arising from the global reach of the order.<\/p>\n<p>[44]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google\u2019s 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, \u201cGoogle acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong\u201d.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn6\" name=\"_ftnref6\"><sup>[6]<\/sup><\/a><\/p>\n<p>[45]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0And 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:<\/p>\n<p>In the case before us, there is no realistic assertion that the judge\u2019s 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\u2019 core rights are respected.<\/p>\n<p>&nbsp;<\/p>\n<p>. . . 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.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn7\" name=\"_ftnref7\"><sup>[7]<\/sup><\/a><\/p>\n<p>[46]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0If 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.<\/p>\n<p>[47]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the absence of an evidentiary foundation, and given Google\u2019s 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<em>\u00a0<\/em>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.<\/p>\n<p>[48]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0This 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.<\/p>\n<p>[49]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0And 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, \u201conly a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily\u201d.<a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftn8\" name=\"_ftnref8\"><sup>[8]<\/sup><\/a>\u00a0Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google\u2019s facilitating Datalink\u2019s breach of court orders.<\/p>\n<p>[50]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google 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 \u201chate speech\u201d. It also complies with notices it receives under the US<em>\u00a0Digital Millennium Copyright Act<\/em>, Pub. L. No. 105-304, 112 Stat. 2680 (1998)<em>\u00a0<\/em>to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders.<\/p>\n<p>[51]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As 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 temporary to a permanent one. As previously noted, the order requires that the injunction be in place \u201cuntil the conclusion of the trial of this action or further order of this court\u201d. 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.<\/p>\n<p>[52]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Datalink 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 \u2014 at the expense of Equustek\u2019s survival \u2014 on Google\u2019s 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.<\/p>\n<p>[53]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0This 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.<\/p>\n<p>[54]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0I would dismiss the appeal with costs in this Court and in the Court of Appeal for British Columbia.<\/p>\n<p>&nbsp;<\/p>\n<p>The following are the reasons delivered by<\/p>\n<p>&nbsp;<\/p>\n<p>C\u00f4t\u00e9 and Rowe JJ. \u2014<\/p>\n<p>[55]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc. (\u201cEquustek\u201d) seek a novel form of equitable relief \u2015 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. (\u201cGoogle Order\u201d) (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.<\/p>\n<p>[56]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As 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\u00a0<em>RJR\u00a0<\/em>\u2015<em>\u00a0MacDonald<\/em>\u00a0<em>Inc. v. Canada (Attorney General)<\/em>, [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.<\/p>\n<ol>\n<li>Judicial Restraint<\/li>\n<\/ol>\n<p>[57]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The power of a court to grant injunctive relief is derived from that of the Chancery courts of England (<em>Fourie v. Le Roux<\/em>, [2007] UKHL 1, [2007] 1 All E.R. 1087, at para. 30), and has been confirmed in British Columbia by the\u00a0<em>Law and Equity Act<\/em>, R.S.B.C. 1996, c. 253, s. 39(1):<\/p>\n<p><strong>39<\/strong>\u00a0(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.<\/p>\n<p>[58]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In\u00a0<em>Fourie<\/em>, Lord Scott explained that \u201cprovided 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\u201d (para. 30). However, simply because a court has the jurisdiction to grant an injunction does not mean that it should. A court \u201cwill not according to its settled practice do so except in a certain way and under certain circumstances\u201d (Lord Scott, at para. 25, quoting from\u00a0<em>Guaranty Trust Co. of New York v. Hannay &amp; Co.<\/em>, [1915] 2 K.B. 536, at p. 563; see also\u00a0<em>Cartier International AG v. British Sky Broadcasting Ltd.<\/em>, 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949, at paras. 98-100). Professor Spry comes to similar conclusions (I. C. F. Spry,\u00a0<em>The Principles of Equitable Remedies<\/em>\u00a0(9th ed. 2014), at p. 333):<\/p>\n<p>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.]<\/p>\n<p>[59]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The importance of appropriately modifying judicial restraint to meet the needs of justice was summarized by Lord Nicholls in\u00a0<em>Mercedes Benz A.G. v. Leiduck<\/em>, [1996] 1 A.C. 284 (P.C.), at p. 308: \u201cAs 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.\u201d<\/p>\n<p>[60]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Changes to \u201csettled practice\u201d 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.<\/p>\n<ol>\n<li>Factors Suggesting Restraint in This Case<\/li>\n<\/ol>\n<p>A.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Effects of the Google Order Are Final<\/p>\n<p>[61]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In\u00a0<em>RJR\u00a0<\/em>\u2015<em>\u00a0MacDonald<\/em>, this Court set out the test for interlocutory injunctions \u2015 a serious question to be tried, irreparable harm, and the balance of convenience \u2015 but also described an exception (at pp. 338-39):<\/p>\n<p>Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises\u00a0<u>when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case<\/u>\u00a0either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or\u00a0<u>when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial.<\/u><\/p>\n<p>&nbsp;<\/p>\n<p>. . .<\/p>\n<p>&nbsp;<\/p>\n<p>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.]<\/p>\n<p>[62]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In our view, the Google Order \u201cin effect amount[s] to a final determination of the action\u201d because it \u201cremove[s] any potential benefit from proceeding to trial\u201d. In order to understand this conclusion, it is useful to review Equustek\u2019s underlying claim. Equustek sought, in its Further Amended Notice of Civil Claim against Datalink, damages, declarations, and:<\/p>\n<p>A temporary and permanent injunction restraining the Defendants from:<\/p>\n<p>&nbsp;<\/p>\n<ol>\n<li>using the Plaintiffs\u2019 trademarks and free-riding on the goodwill of any Equustek products on any website;<\/li>\n<\/ol>\n<p>&nbsp;<\/p>\n<ol>\n<li>making statements disparaging or in any way referring to the Equustek products;<\/li>\n<\/ol>\n<p>&nbsp;<\/p>\n<ol>\n<li>distributing the offending manuals and displaying images of the Plaintiff\u2019s products on any website; and<\/li>\n<\/ol>\n<p>&nbsp;<\/p>\n<ol>\n<li>selling the GW1000 line of products which were created by the theft of the Plaintiff\u2019s trade secrets;<\/li>\n<\/ol>\n<p>&nbsp;<\/p>\n<p>and obliging them to:<\/p>\n<p>&nbsp;<\/p>\n<ol>\n<li>immediately disclose all hidden websites;<\/li>\n<\/ol>\n<p>&nbsp;<\/p>\n<ol>\n<li>display a page on all websites correcting [their] misrepresentations about the source and continuing availability of the Equustek products and directing customers to Equustek.<\/li>\n<\/ol>\n<p>In short, Equustek sought injunctions modifying the way in which Datalink carries out its website business, along with damages and declarations. On June 20, 2012, Datalink\u2019s 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<\/p>\n<p>[t]he Defendants Morgan Jack, Datalink Technologies Gateways Inc. and Datalink Technologies Gateways LLC (the \u201cDatalink Defendants\u201d) cease operating or carrying on business through any website, including those contained in Schedule \u201cA\u201d and all associated pages, subpages and subdirectories, and that these Defendants immediately take down all such websites, until further order of this court. [\u201cDecember 2012 Order\u201d]<\/p>\n<p>The December 2012 Order gives Equustek\u00a0<em>more<\/em>\u00a0than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether. In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek\u2019s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so.<\/p>\n<p>[63]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0As 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.<\/p>\n<p>[64]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Procedurally, Equustek requested an interlocutory order in the course of its litigation with Datalink. While Equustek\u2019s action against Datalink could technically endure indefinitely (G.P. Fraser, J.W. Horn and S.A. Griffin,\u00a0<em>The Conduct of Civil Litigation in British Columbia\u00a0<\/em>(2nd ed. (loose-leaf)), at \u00a7 14.1) \u2015 and thus the interlocutory status of the injunction could technically endure indefinitely \u2015 it does not follow that the Google Order should be considered interlocutory. Courts of equity look to substance over form, because \u201ca dogged devotion to form has often resulted in injustice\u201d (<em>John Deere Ltd. v. Firdale Farms Ltd.\u00a0<\/em>(1987), 45 D.L.R. (4th) 641 (Man. C.A.), at p. 645). In\u00a0<em>Parkin v. Thorold\u00a0<\/em>(1852), 16 Beav. 59, 51 E.R. 698, at p. 701, Lord\u00a0Romilly explained it thus:<\/p>\n<p>. . . 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.<\/p>\n<p>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.<\/p>\n<p>[65]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Following\u00a0<em>RJR\u00a0<\/em>\u2015\u00a0<em>MacDonald\u00a0<\/em>(at pp. 338-39), an extensive review of the merits is therefore required at the first stage of the analysis (<em>Schooff<\/em><em>\u00a0v. British Columbia (Medical Services Commission)<\/em>, 2010 BCCA 396, 323 D.L.R. (4th) 680, at paras. 26-27). Yet this was not done. When Justice Fenlon considered Equustek\u2019s application for an interim injunction enjoining Google to cease indexing or referencing Datalink\u2019s websites, she did not conduct an extensive review of the merits. She did however note that Equustek had raised an arguable case, and that Datalink was presumed to have admitted the allegations when its defenses were struck (para. 151). The rule is not immutable that if a statement of defense is struck, the defendant is deemed to have admitted the allegations contained in the statement of claim. While the facts relating to Datalink\u2019s liability are deemed to be admitted, the court can still exercise its discretion in assessing Equustek\u2019s claims (<em>McIsaac v. Healthy Body Services Inc.<\/em>, 2009 BCSC 1716, at paras. 42 and 44 (CanLII);\u00a0<em>Plouffe v. Roy<\/em>, 2007 CanLII 37693 (Ont. S.C.J.), at para. 53;\u00a0<em>Spiller v. Brown<\/em>\u00a0(1973), 43 D.L.R. (3d) 140 (Alta. S.C. (App. Div.)), at p.\u00a0143). Equustek has avoided such an assessment. Thus, an extensive review of the merits was not carried out.<\/p>\n<p>[66]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Google Order also does not meet the test for a permanent injunction.\u00a0 To obtain a permanent injunction, a party is required to establish: (1) its legal rights; (2) that damages are an inadequate remedy; and (3) that there is no impediment to the court\u2019s discretion to grant an injunction (<em>1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd.<\/em>, 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 74-80; Spry, at pp. 395 and 407-8). Equustek has shown the inadequacy of damages (damages are ascertainable but unlikely to be recovered, and the wrong is continuing). However, in our view, it is unclear whether the first element of the test has been met. Equustek\u2019s claims were supported by a good\u00a0<em>prima facie<\/em>\u00a0case, 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.<\/p>\n<p>[67]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In any case, the discretionary factors affecting the grant of an injunction strongly favour judicial restraint. As we will outline below, the Google Order enjoins a non-party, yet Google has not aided or abetted Datalink\u2019s wrongdoing; it holds no assets of Equustek\u2019s, 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.<\/p>\n<p>B.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Google Is a Non-Party<\/p>\n<p>[68]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0A court order does not \u201ctechnically\u201d bind non-parties, but \u201canyone 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\u201d (<em>MacMillan Bloedel Ltd. v. Simpson<\/em>, [1996] 2 S.C.R. 1048,<em>\u00a0<\/em>at paras. 23 and 27). In\u00a0<em>MacMillan Bloedel<\/em>,<em>\u00a0<\/em>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.<\/p>\n<p>[69]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The instant case is not one where a non-party with knowledge of a court order deliberately disobeyed it and thereby deprecated the court\u2019s authority. Google did not carry out the act prohibited by the December 2012 Order. The act prohibited by the December 2012 Order is Datalink \u201ccarrying on business through any website\u201d. That act occurs whenever Datalink launches websites to carry out business \u2015 not when other parties, such as Google, make it known that such websites exist.<\/p>\n<p>[70]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0There is no doubt that non-parties also risk contempt proceedings by aiding and abetting the doing of a prohibited act (<em>Seaward v. Paterson<\/em>, [1897] 1 Ch. 545 (C.A.); D. Bean, A. Burns and I. Parry,\u00a0<em>Injunctions\u00a0<\/em>(11th ed. 2012), at para. 9-08). Lord Denning said in\u00a0<em>Acrow (Automation) Ltd. v. Rex Chainbelt Inc.<\/em>, [1971] 1 W.L.R. 1676 (C.A.), at p. 1682:<\/p>\n<p>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.<\/p>\n<p>[71]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In our view, Google did not aid or abet the doing of the prohibited act. Equustek alleged that Google\u2019s search engine was facilitating Datalink\u2019s ongoing breach by leading customers to Datalink websites (Fenlon J.\u2019s reasons, at para. 10). However, the December 2012 Order was to cease carrying on business through any website. That Order was breached as soon as Datalink established a website to conduct its business, regardless of how visible that website might be through Google searches. If Equustek\u2019s argument were accepted, the scope of \u201caids and abets\u201d would, in our view, become overbroad. It might include the companies supplying Datalink with the material to produce the derivative products, the companies delivering the products, or as Google argued in its factum, it might also include the local power company that delivers power to Datalink\u2019s 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.<\/p>\n<p>[72]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0We agree with our colleague Justice Abella that\u00a0<em>Mareva<\/em>\u00a0injunctions and\u00a0<em>Norwich\u00a0<\/em>orders can operate against non-parties. However, we respectfully disagree that the Google Order is similar in nature to those remedies.\u00a0<em>Mareva<\/em>\u00a0injunctions are granted to freeze assets until the completion of a trial \u2015 they do not enforce a plaintiff\u2019s substantive rights (<em>Mercedes Benz<\/em>, at p. 302). In contrast, the Google Order enforces Equustek\u2019s asserted intellectual property rights by seeking to minimize harm to those rights. It does not freeze Datalink\u2019s assets (and, in fact, may erode those assets).<\/p>\n<p>[73]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0<em>Norwich<\/em>\u00a0orders are made to compel information from third parties. In\u00a0<em>Norwich Pharmacal Co. v. Customs and Excise Commissioners<\/em>, [1974] A.C. 133 (H.L.), at p. 175, Lord Reid identified<\/p>\n<p>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.<\/p>\n<p>Lord Reid found that \u201cwithout certain action on [Customs\u2019] part the infringements could never have been committed\u201d (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\u00a0<em>Cartier<\/em>, the court analogized from\u00a0<em>Norwich<\/em>\u00a0to support an injunction requiring Internet service providers (\u201cISPs\u201d) to block access to trademark-infringing websites because \u201cit is via the ISPs\u2019 services\u201d that customers view and purchase the infringing material (para. 155). That injunction did not extend to parties merely assisting in finding the websites.<\/p>\n<p>[74]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In the case at bar, we are of the view that Google does not play a role in Datalink\u2019s 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\u00a0<em>Norwich<\/em>\u00a0nor the ISPs in\u00a0<em>Cartier<\/em>.<em>\u00a0<\/em>And unlike the order in\u00a0<em>Norwich<\/em>, the Google Order compels positive action aimed at the illegal activity rather than simply requiring the provision of information to the court.<\/p>\n<p>C.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Google Order Is Mandatory<\/p>\n<p>[75]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0While the distinction between mandatory and prohibitive injunctions has been questioned (see\u00a0<em>National Commercial Bank of Jamaica Ltd. v. Olint Corp.<\/em>, [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 (<em>Redland Bricks Ltd. v. Morris<\/em>, [1970] A.C. 652 (H.L.), at pp.\u00a0665\u201166; J.\u00a0Berryman,\u00a0<em>The Law of Equitable Remedies<\/em>\u00a0(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 (<em>Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd.<\/em>, [1998] A.C. 1 (H.L.).<\/p>\n<p>[76]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace de-listed ones. In fact, the Google Order has been amended at least seven times to capture Datalink\u2019s 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.<\/p>\n<p>D.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The Google Order Has Not Been Shown To Be Effective<\/p>\n<p>[77]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0A 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\u201120; Berryman, at p. 113). For example, in\u00a0<em>Attorney General v. Observer Ltd.<\/em>, [1990] 1 A.C. 109 (H.L.), the\u00a0<em>Spycatcher<\/em>\u00a0memoirs of an M.I.5 agent were already readily available, thus making a perpetual injunction against publication by the defendant newspapers ineffective.<\/p>\n<p>[78]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0In 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 \u201ccease operating or carrying on business through any website\u201d \u2014 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.<\/p>\n<p>[79]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found \u201cGoogle is inadvertently facilitating\u201d (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google points out, Datalink\u2019s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink\u2019s 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.<\/p>\n<p>[80]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Moreover, 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 \u201cto some extent determined by reference to questions of effectiveness and of comity\u201d (p. 37). While the worldwide effect of the Google Order does not make it more effective, it could raise concerns regarding comity.<\/p>\n<p>E.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Alternatives Are Available<\/p>\n<p>[81]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Highlighting 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\u00a0<em>Mareva\u00a0<\/em>injunction to freeze those assets, but the Court of Appeal for British Columbia urged Equustek to pursue a remedy in French courts: \u201cAt 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\u201d (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\u00a0<em>Cartier<\/em>,<em>\u00a0<\/em>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.<\/p>\n<p>III.\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Conclusion<\/p>\n<p>[82]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0For 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.<\/p>\n<p>&nbsp;<\/p>\n<p><em>Appeal dismissed with costs,\u00a0<\/em>C\u00f4t\u00e9\u00a0<em>and<\/em>\u00a0Rowe\u00a0JJ.\u00a0<em>dissenting.<\/em><\/p>\n<p>Solicitors for the appellant:\u00a0Lenczner Slaght Royce Smith Griffin, Toronto.<\/p>\n<p>Solicitors for the respondents:\u00a0Robert Fleming Lawyers, Vancouver; Michael Sobkin, Ottawa.<\/p>\n<p>Solicitor for the intervener the Attorney General of Canada:\u00a0Attorney General of Canada, Ottawa.<\/p>\n<p>Solicitor for the intervener the Attorney General of Ontario:\u00a0Attorney General of Ontario, Toronto.<\/p>\n<p>Solicitors for the intervener the Canadian Civil Liberties Association:\u00a0Blake, Cassels &amp; Graydon, Vancouver.<\/p>\n<p>Solicitor for the intervener the OpenMedia Engagement Network:\u00a0Cynthia Khoo, Vancouver.<\/p>\n<p>Solicitors for the interveners\u00a0the 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 &amp; 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:\u00a0Blake, Cassels &amp; Graydon, Toronto.<\/p>\n<p>Solicitors for the interveners\u00a0Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software Freedom Law Centre and the Center for Technology and Society:\u00a0Blake, Cassels &amp; Graydon, Toronto.<\/p>\n<p>Solicitors for the intervener the Wikimedia Foundation:\u00a0McInnes Cooper, Halifax.<\/p>\n<p>Solicitors for the intervener the British Columbia Civil Liberties Association:\u00a0Stockwoods, Toronto.<\/p>\n<p>Solicitors for the intervener the Electronic Frontier Foundation:\u00a0MacPherson Leslie &amp; Tyerman, Vancouver; Fasken Martineau DuMoulin, Vancouver.<\/p>\n<p>Solicitors for the interveners\u00a0the International Federation of the Phonographic Industry, Music Canada, the Canadian Publishers\u2019 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:\u00a0McCarthy T\u00e9trault, Toronto.<\/p>\n<p>Solicitors for the intervener the International Federation of Film Producers Associations:\u00a0MacKenzie Barristers, Toronto.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref1\" name=\"_ftn1\">[1]<\/a>\u00a0Para. 148.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref2\" name=\"_ftn2\">[2]<\/a>\u00a0Para. 147.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref3\" name=\"_ftn3\">[3]<\/a>\u00a0Para. 95.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref4\" name=\"_ftn4\">[4]<\/a>\u00a0Para. 76.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref5\" name=\"_ftn5\">[5]<\/a>\u00a0Para. 148.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref6\" name=\"_ftn6\">[6]<\/a>\u00a0Para. 144.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref7\" name=\"_ftn7\">[7]<\/a>\u00a0Paras. 93-94.<\/p>\n<p><a href=\"https:\/\/scc-csc.lexum.com\/scc-csc\/scc-csc\/en\/item\/16701\/index.do?iframe=true#_ftnref8\" name=\"_ftn8\">[8]<\/a>\u00a0Para. 137.<\/p>\n<p>&nbsp;<\/p>\n<h3>Noteable comments about the worldwide injunction against Google:<\/h3>\n<ul>\n<li>The Supreme Court of Canada has upheld a B.C. court ruling\u00a0<a href=\"http:\/\/www.cbc.ca\/news\/canada\/british-columbia\/google-ordered-by-b-c-judge-to-block-website-from-search-results-1.2679824\">that ordered Google to remove the website<\/a>\u00a0of a company from its global search results.<\/li>\n<\/ul>\n<p style=\"padding-left: 30px;\"><a href=\"http:\/\/www.cbc.ca\/news\/canada\/british-columbia\/google-ruling-1.4181322?cmp=news-digests-canada-and-world-evening\" target=\"_blank\" rel=\"noopener noreferrer\">http:\/\/www.cbc.ca\/news\/canada\/british-columbia\/google-ruling-1.4181322?cmp=news-digests-canada-and-world-evening<\/a><\/p>\n<ul>\n<li>&#8220;This is the first case to grant a global de-indexing order against the search engine to require it to de-index a site that is making available goods that violate copyright,&#8221; said Barry Sookman, the lawyer for Music Canada.<\/li>\n<\/ul>\n","protected":false},"excerpt":{"rendered":"<p>Google lost its appeal to the Supreme Court of Canada on June 28, 2017. The case is called\u00a0Google Inc. v. Equustek Solutions Inc., et al. And the decision solidifies the worldwide injunction made against Google by a Canadian superior court in British Columbia, Canada. The Supreme Court of Canada decision in\u00a0Google Inc. v. Equustek Solutions [&hellip;]<\/p>\n","protected":false},"author":2,"featured_media":47,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20],"tags":[],"class_list":["post-274","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-supreme-court-cases"],"_links":{"self":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/posts\/274","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/comments?post=274"}],"version-history":[{"count":0,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/posts\/274\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/menu-items\/47"}],"wp:attachment":[{"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/media?parent=274"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/categories?post=274"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/canlawblog.com\/index.php\/wp-json\/wp\/v2\/tags?post=274"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}