Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 1 of 143 1 QUINN EMANUEL URQUHART & SULLIVAN, LLP Margret M. Caruso (CA Bar No. 243473) 2 margretcaruso@quinnemanuel.com Carolyn M. Homer (CA Bar No. 286441) 3 carolynhomer@quinnemanuel.com 555 Twin Dolphin Drive, 5th Floor 4 Redwood Shores, California 94065-2139 Telephone: (650) 801-5000 5 Facsimile: (650) 801-5100 6 Attorneys for Plaintiff Google Inc. 7 8 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION 9 10 11 Google Inc., 12 Case No. 17-CV-________________ Plaintiff, COMPLAINT 13 vs. 14 Equustek Solutions Inc., Clarma Enterprises Inc. and Robert Angus, 15 Defendants. 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 2 of 143 1 Plaintiff Google Inc. (“Google”), by and through its attorneys, hereby alleges: 2 3 INTRODUCTION 1. Google brings this action to prevent enforcement in the United States of a Canadian 4 order that prohibits Google from publishing within the United States search result information 5 about the contents of the internet. As part of a Canadian lawsuit brought by Canadian plaintiffs 6 against Canadian defendants, a Canadian trial court enjoined Google (a non-party based in 7 California) from including in its search results links to dozens of the Canadian defendants’ 8 websites—not just on Google’s www.google.ca site for Canada, but worldwide, including within 9 the United States. As a result, Google, alone among search engines and other providers of 10 interactive computer services, is compelled to censor the information it provides to its users 11 around the globe about the existence of the Canadian defendants’ websites. 12 2. The Canadian trial court recognized that Google is an “innocent bystander” to the 13 case. Nevertheless, it issued a novel worldwide order against Google, restricting what information 14 an American company can provide to people inside of the United States and around the world. 15 Google appealed the order to the Court of Appeal and then the Supreme Court of Canada. There, 16 the Attorney General of Canada intervened to argue the order disregarded principles of 17 territoriality and international comity to the detriment of Canadian law enforcement. Although the 18 Canadian plaintiffs acknowledged the risk that Canadian courts would misapply U.S. law, they 19 urged that it was not an issue for the Canadian court to consider; it would be up to a U.S. court to 20 clarify U.S. law. 21 3. The Supreme Court of Canada affirmed the global injunction against Google on 22 June 28, 2017, dismissing Google’s concerns about the injunction violating U.S. law as 23 “theoretical.” The opinion recognizes that Google is an innocent non-party which cannot be held 24 “liable” for any underlying competitive harm, but simultaneously justifies an unprecedented global 25 injunction by characterizing Google—a single provider on interactive computer services—as “the 26 determinative player in allowing the harm to occur.” As of the June 28, 2017 decision, Google 27 has exhausted its Canadian appeals. 28 -2COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 3 of 143 1 4. Google now turns to this Court, asking it to declare that the rights established by 2 the First Amendment and the Communications Decency Act are not merely theoretical. The 3 Canadian order is repugnant to those rights, and the order violates principles of international 4 comity, particularly since the Canadian plaintiffs never established any violation of their rights 5 under U.S. law. Pursuant to well-established United States law, Google seeks a declaratory 6 judgment that the Canadian court’s order cannot be enforced in the United States and an order 7 enjoining that enforcement. 8 9 PARTIES 5. Plaintiff Google provides an internet search engine service. Google is a subsidiary 10 of Alphabet Inc., and is incorporated in Delaware with its principal place of business in Mountain 11 View, California. 12 6. Upon information and belief, Defendant Equustek Solutions Inc. is a provider of 13 industrial networking technology. Defendant Equustek Solutions Inc. is incorporated in British 14 Columbia, Canada with its principal place of business at 5489 Byrne Road Burnaby, British 15 Columbia, V5J3J1, Canada. 16 7. Upon information and belief, Defendant Clarma Enterprises Inc. is incorporated in 17 British Columbia, Canada with its registered office at Box 12102, Suite 1008, 808 Nelson Street, 18 Vancouver, British Columbia, V6Z2H2, Canada. 19 8. Upon information and belief, Defendant Robert Angus is a professional engineer 20 and principal of Defendants Equustek Solutions Inc. and Clarma Enterprises Inc., with a last 21 known place of residence at 1838 W. 19th Avenue, Vancouver, British Columbia, V6J2N9, 22 Canada. 23 24 JURISDICTION & VENUE 9. This Court has subject matter jurisdiction under 28 U.S.C. § 1331 because this 25 action arises under federal law, namely the First Amendment to the U.S. Constitution and the 26 Communications Decency Act, 47 U.S.C. § 230. 27 10. This Court is authorized to award the requested declaratory and injunctive relief 28 under the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02. An “actual controversy” exists in the -3COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 4 of 143 1 Northern District of California regarding Google taking and continuing to take actions in the 2 United States to comply with the delisting order the Defendants (collectively “Equustek”) 3 obtained in Canada. 4 11. This Court has personal jurisdiction over the Defendants because, inter alia, the 5 Defendants have knowingly engaged in a course of conduct whereby they sought and obtained 6 injunctive orders in the Equustek v. Jack litigation in Canada that are expressly aimed at requiring 7 Google to undertake actions in the United States—specifically, to delist search results in the 8 United States and throughout the world. In November 2012 Equustek served Google with a 9 Notice of Application to the British Columbia court at Google’s offices in Mountain View, 10 California. Equustek thereafter renewed the Application for a delisting injunction on May 13, 11 2013; sought and obtained a trial court injunction on June 13, 2014; and maintained its position 12 adverse to Google through the Canadian appellate process. The Supreme Court of Canada 13 confirmed in its June 28, 2017 opinion that the Canadian order was intended to require Google to 14 take steps where its search engine is controlled—namely, California. 15 12. A substantial part of the events or omissions giving rise to the claims alleged in this 16 Complaint occurred in this Judicial District, specifically, Google’s delisting of search results 17 pursuant to the Canadian court order. Venue therefore lies in the United States District Court for 18 the Northern District of California pursuant to 28 U.S.C. § 1391(b)(2). 19 20 21 FACTUAL BACKGROUND Google Offers Search Services Around The World. 13. Google is an American company that offers a free and popular internet search 22 engine, accessible at www.google.com. Google’s United States and worldwide search engine 23 operations are conducted from, and controlled by, Google’s headquarters in Mountain View, 24 California. Google also offers it search engine via more than a hundred different country-specific 25 portals, such as www.google.mx and www.google.fr (targeted, respectively, to users in Mexico 26 and France). Google’s Canadian portal, www.google.ca, is offered in English and French. 27 Google.ca has historically received approximately 95% of all Google searches originating from 28 Canada. -4COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 5 of 143 1 14. Google’s search results are based on Google’s computers crawling, indexing, and 2 algorithmically analyzing the trillions of webpages that make up the public internet. The results of 3 each individual search are returned automatically, but they are based on judgments Google has 4 made, and subsequently programmed into Google’s ranking algorithms, about what material users 5 are most likely to find responsive to their queries. 6 15. Google is not the internet. The vast majority of internet websites are hosted by and 7 operated through service providers other than Google. The entities with the technical ability to 8 remove websites or content from the internet altogether are the websites’ owners, operators, 9 registrars, and hosts—not Google. 10 16. Removing a website link from the Google search index neither prevents public 11 access to the website, nor removes the website from the internet at large. Even if a website link 12 does not show up in Google’s search results, anyone can still access a live website via other 13 means, including by entering the website’s address in a web browser, finding the website through 14 other search engines (such as Bing or Yahoo), or clicking on a link contained on a website (e.g., 15 CNN.com), or in an email, social media post, or electronic advertisement. 16 Equustek Sues Competitor Datalink In Canada. 17 17. In 2011, in Vancouver, British Columbia, Equustek sued a group of individual and 18 corporate defendants connected with a former distributor and rival business selling network 19 interfacing hardware (collectively, “Datalink”). The case is captioned Equustek Solutions Inc. v. 20 Jack, Case No. S112421 (Sup. Ct. British Columbia). Equustek alleged, inter alia, that Datalink 21 had colluded with a former Equustek engineer to incorporate Equustek’s trade secret hardware 22 designs and source code into a Datalink product, the GW1000; that Datalink sold the GW1000 23 instead of Equustek products that customers thought they were ordering; and that Datalink made 24 misleading statements about Equustek on its websites. 25 18. The Canadian court initially denied the asset freeze Equustek sought. But after 26 Datalink refused to comply with court discovery orders and orders to remove references to 27 Equustek from its website, and after Datalink stopped appearing in the litigation, Equustek 28 procured multiple court orders against Datalink in the summer of 2012. These included the -5COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 6 of 143 1 striking of Datalink’s response to Equustek’s initial pleading, an asset freeze, and a permanent 2 injunction against Datalink continuing to sell the product at issue. Datalink refused to comply, 3 continued to operate its business, and fled the country. Finding that the Datalink defendants may 4 be in contempt of court, the Canadian court issued an arrest warrant in September 2012 for the 5 primary individual defendant, but he has not yet been apprehended. To this day, Datalink 6 continues to offer the GW1000 for sale online. 7 Equustek Obtains Canadian Injunction Prohibiting Google From Including Links To 8 Datalink’s Websites In Search Results Displayed Anywhere In The World. 9 19. In September 2012 Equustek asked Google to “cease indexing” Datalink’s websites 10 in Google’s search results. Pursuant to its policies, Google declined to do so at that time. In 11 December 2012, the Canadian court granted Equustek’s motion for a further injunction against 12 Datalink, “prohibiting [Datalink] from carrying on business through any website.” In light of that 13 order, and pursuant to its policies, Google voluntarily blocked more than 300 individual webpage 14 links associated with Datalink from appearing in Google’s Canadian search results on 15 www.google.ca. However, Google rejected Equustek’s demand that Google “delist” all links to 16 Datalink’s websites on its search services targeted to users outside of Canada’s borders, including 17 in the United States. 18 20. Equustek then returned to court, seeking an order requiring Google to remove the 19 webpage links from Google’s global search results. On June 13, 2014, the Canadian trial court 20 issued an unprecedented order, requiring that Google delist Datalink search results in every 21 country Google search services are available, including in the United States. The court recognized 22 that Google was an “innocent bystander,” which “operates its search engines in the ordinary 23 course of its business, independently of the [Datalink] defendants and not in order to assist them in 24 their breach.” Nevertheless, the court found that Google “is unwittingly facilitating the 25 defendants’ ongoing breaches of this Court’s orders” and concluded “[t]here is no other practical 26 way for the defendants’ website sales to be stopped.” The court did not cite any evidence in 27 support of its finding, yet it “compell[ed] Google to block the defendants’ websites from Google’s 28 search results world-wide.” -6COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 7 of 143 1 21. Google sought a stay of the June 2014 order pending its appeal, but that was 2 denied. Since then, Google has complied with the Canadian court’s order, delisting 33 Datalink 3 websites from its search results globally, whether those results were being generated for users 4 based in Australia or Zambia. Because Datalink nonetheless continued to develop and operate 5 other websites selling the GW1000, the trial court issued, at Datalink’s request, nine additional 6 supplemental orders requiring Google to block more than 75 additional Datalink-associated 7 webpages and websites. Collectively, the June 2014 order and all supplements are referred to 8 herein as the “Canadian Order.” A true and correct copy of the June 13, 2014 order and the 9 supplemental orders issued thus far are attached as Exhibit A. Google has continued to comply 10 with the Canadian Order. 11 22. The Canadian Order has proven ineffective in preventing Datalink’s online 12 operations. Although the Canadian Order has been in effect for more than three years, many 13 Datalink websites remain publicly available. More than a third of the Datalink websites Google 14 delisted are still active today. It does not appear that Equustek has sought to enjoin the registrars 15 or webhosts of Datalink’s websites. Unlike mere search delisting, registrars and webhosts have 16 the power to remove the enjoined content from the internet. 17 23. Equustek has only sought to enjoin Google’s search results; it has neither sought 18 nor obtained similar orders mandating that other search engines delist the Datalink websites. 19 Instead, searching for “GW1000” on Google’s competitors’ search engines shows that they are 20 returning links to Datalink websites that Google was ordered to delist. 21 Google Exhausts Its Appeals In Canada. 22 24. Google promptly appealed the Canadian Order to the Court of Appeal for British 23 Columbia, which affirmed the order on June 11, 2015. The Court of Appeal for British Columbia 24 held, among other things, that the Canadian Order did not “offend the sensibilities of any other 25 nation.” 26 25. Google further appealed to the Supreme Court of Canada, which affirmed the order 27 on June 28, 2017. A true and correct copy of the June 28, 2017 Supreme Court of Canada order is 28 attached as Exhibit B. Applying a “balance of convenience” test, the Supreme Court of Canada -7COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 8 of 143 1 held that there is “no harm to Google which can be placed on its ‘inconvenience’ scale arising 2 from the global reach of the order” mandating indefinite compliance because the “only obligation 3 the interlocutory injunction creates is for Google to de-index the Datalink websites.” The 4 Supreme Court did not explain how its characterization of Google as the “determinative player in 5 allowing the harm to occur” to Equustek was possible when, despite three years of Google’s 6 compliance, Datalink websites are still live and in business, and can still be found through other 7 search engines and internet sources. 8 26. In a dissenting opinion, two Justices of the Supreme Court of Canada contended 9 that the Canadian Order was improper, and the trial court should have exercised judicial restraint. 10 They explained that “Google did not carry out the act prohibited by the December 2012 Order.” 11 Nor has Google “aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has 12 no information relevant to the underlying proceedings.” Instead of simply preserving the status 13 quo, “[t]he Google Order is mandatory and requires [ongoing] court supervision,” including 14 through multiple supplemental orders. Meanwhile, the Datalink websites are still live, and can 15 still “be found using other search engines, links from other sites, bookmarks, email, social media, 16 printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for 17 business on the Internet whether Google searches list them or not.” “The most that can be said is 18 that the Google Order might reduce the harm to Equustek which Google is inadvertently 19 facilitating.” The dissent concluded that the Canadian Order therefore “has not been shown to be 20 effective,” particularly where “Equustek has alternative remedies.” 21 A Case Or Controversy Exists. 22 27. With no further means of appeal of the Canadian Order, Google seeks relief from 23 this United States Court. The Canadian Order is an enforcement order, requiring Google to take 24 actions in the United States to delist publicly available content from its search results in the United 25 States. Equustek expected that the United States would be the next venue in its battle. Its counsel 26 argued before the Supreme Court of Canada that the enforceability of the Canadian Order “in the 27 United States is a question for U.S. courts and has nothing to do with this case,” and that after the 28 Canadian court’s decision, “the American courts [can] then tell us what the law really is.” -8COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 9 of 143 1 28. Without a declaration from a United States court that enforcement of the Canadian 2 Order in the U.S. is unlawful, Google believes that Equustek will continue to pursue enforcement 3 of the Canadian Order and seek to hold Google in contempt if Google stops complying with it for 4 search results displayed within the United States. 5 29. Google now seeks a declaration from this Court that will protect its rights by 6 enjoining enforcement of the Canadian Order in the United States. This Court’s order will 7 confirm that the rights established by the First Amendment and the Communications Decency Act 8 are not merely “theoretical.” 9 FIRST CAUSE OF ACTION 10 U.S. CONST. Amend. I; Declaratory Judgment Act, 28 U.S.C. § 2201 11 (Against All Defendants) 12 30. Google incorporates all of the above paragraphs as though fully set forth herein. 13 31. The First Amendment provides: “Congress shall make no law . . . abridging the 14 freedom of speech, or of the press.” U.S. CONST. Amend. I. Internet search results are fully 15 protected speech under the First Amendment. 16 32. The First Amendment’s prohibition on abridgments of speech extends to judicial 17 restraints on free speech. Because the Canadian Order is directed to a specific speaker—Google— 18 and is content-specific, it is subject to strict scrutiny. 19 33. Enforcing the Canadian Order in the United States would violate the First 20 Amendment. The Canadian Order furthers no compelling interest (nor a substantial interest), and 21 is not narrowly tailored to achieve one. The existence of the Datalink websites is, and remains, a 22 matter of public record. Equustek cannot show that it has no alternatives available other than 23 enjoining Google’s search results outside of Canada. Upon information and belief, Equustek has 24 not sought similar delisting injunctions against the world’s other search engines, such as Bing or 25 Yahoo; has not taken action against other third-party websites (such as social media or press 26 websites) displaying links to Datalink websites; has not pursued more targeted remedies against 27 Datalink’s registrars or its webhosts, which could remove Datalink’s websites from the internet 28 -9COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 10 of 143 1 entirely; and has not stopped the sale of Datalink’s products through Amazon. Equustek did not 2 even seek to seal the Datalink website addresses themselves before any court. 3 34. On information and belief, if Defendants are not enjoined from enforcing the 4 Canadian Order in the United States, Defendants will continue to use the Canadian Order to 5 require Google to take action in the United States to delist search results in the United States and 6 around the world. 7 35. As the direct and proximate result of Defendants’ conduct, Google has suffered 8 and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent 9 injunctive relief. Although Google considers enforcement of the Canadian Order to be unlawful in 10 the United States, it is presently complying with it in the United States until such time as this 11 Court affords relief. 12 SECOND CAUSE OF ACTION 13 Communications Decency Act, 47 U.S.C. § 230; Declaratory Judgment Act, 28 U.S.C. § 2201 14 (Against All Defendants) 15 36. Google incorporates all of the above paragraphs as though fully set forth herein. 16 37. The Communications Decency Act provides clear legal immunity to providers of 17 interactive computer services for content on their services created by others: “No provider or user 18 of an interactive computer service shall be treated as the publisher or speaker of any information 19 provided by another information content provider.” 47 U.S.C. § 230(c)(1). 20 38. The Communications Decency Act preempts law inconsistent with it, other than 21 U.S. federal intellectual property law. 47 U.S.C. § 230(e)(3); Perfect 10, Inc. v. CCBill LLC, 488 22 F. 3d 1102, 1107-08, 1118-19 (9th Cir. 2007). Because Equustek’s action is grounded in 23 Canadian trade secret law (not U.S. federal intellectual property law or trade secret laws), Section 24 230 preempts Equustek’s attempted enforcement of the Canadian Order against Google in the 25 United States. 26 39. Google Search satisfies Section 230’s definition of an “interactive computer 27 service” because it is an information service providing access to the Internet. 47 U.S.C. § 28 230(f)(2). -10COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 11 of 143 1 40. Datalink, not Google, is the information content provider that supplies the content 2 of its websites. The fact that Google’s search results may contain snippets from third-party 3 websites such as Datalink’s does not transform those snippets into content created by Google. 4 41. Enforcement of the Canadian Order treats Google as if it were the publisher of the 5 contents of the Datalink websites by enjoining Google’s display of accurate search results. 6 Equustek’s enforcement of the Canadian Order boils down to forcing Google to exclude material 7 that third parties have posted online. 8 42. On information and belief, if Defendants are not enjoined from enforcing the 9 Canadian Order in the United States, Defendants will continue to use the Canadian Order to 10 require Google to delist search results in the United States. 11 43. As the direct and proximate result of Defendants’ conduct, Google has suffered 12 and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent 13 injunctive relief. Although Google considers enforcement of the Canadian Order to be unlawful in 14 the United States, it is presently complying with it in the United States until such time as this 15 Court affords relief. 16 THIRD CAUSE OF ACTION 17 Enforcement Trespasses on Comity; Declaratory Judgment Act, 28 U.S.C. § 2201 18 (Against All Defendants) 19 44. Google incorporates all of the above paragraphs as though fully set forth herein. 20 45. It is a foundational principle of jurisprudence that each country is the master of its 21 own territory. Foreign courts therefore ordinarily refrain from issuing worldwide injunctions 22 because they only have jurisdiction to prescribe conduct that, wholly or in substantial part, takes 23 place within or affects their own territories. 24 46. Recognizing these principles, the Canadian Attorney General intervened in 25 Google’s appeal to the Supreme Court of Canada and argued that the Canadian Order “constitutes 26 an impermissible exercise of extraterritorial enforcement jurisdiction.” 27 28 -11COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 12 of 143 1 47. Disregarding this, the Supreme Court of Canada declared “The Internet has no 2 borders—its natural habitat is global” as a means to justify a global injunction. But no one 3 country should purport to control the global internet. 4 48. Equustek’s counsel repeatedly acknowledged that United States courts might view 5 the Canadian Order as violating United States law—but urged the Canadian courts to not reverse 6 on that basis. For example, Equustek’s counsel argued to the Supreme Court of Canada: “Whether 7 the order might be enforceable in the United States is a question for US courts and has nothing to 8 do with this case.” 9 49. The Canadian Order is repugnant to United States public policy surrounding the 10 First Amendment and the immunity against imposing liability on interactive computer service 11 providers. 12 50. The Canadian Order is further repugnant to United States public policy because it 13 issued an injunction against Google, an innocent non-party, merely for the sake of “convenience.” 14 The non-party injunction standard applied by the Supreme Court of Canada did not come close to 15 satisfying well-settled United States law for imposing injunctions. The Canadian standard only 16 considers “the balance of convenience,” and not the “balance of equities,” and the Canadian court 17 placed the burden on Google, a non-party, to disprove Equustek’s rights in every country outside 18 of Canada, rather on Equustek, the plaintiff in the action, to prove its entitlement to removal of 19 search results in each country in which it sought removal. Moreover, the Canadian standard took 20 no account of the “public interest” at all. 21 51. As aptly summarized by the dissenting justices in the Supreme Court of Canada: 22 Equustek “seek[s] a novel form of equitable relief―an effectively permanent injunction, against 23 an innocent third party, that requires court supervision, has not been shown to be effective, and for 24 which alternative remedies are available.” 25 52. The Canadian Order purports to place the Canadian court in the position of 26 supervising the law enforcement activities of a foreign sovereign nation (the United States) against 27 the United States’ own citizens on American soil. Because the Canadian courts ignored principles 28 of international comity, corrective action by this Court is required. This Court need not defer to -12COMPLAINT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 13 of 143 1 the Canadian Order because the Canadian courts failed to extend proper comity to the United 2 States, 3 53. On information and belief, if Defendants are not enjoined from enforcing the 4 Canadian Order in the United States, Defendants will continue to use the Canadian Order to 5 require Google to delist search results in the United States. 6 54. As the direct and proximate result of Defendants’ conduct, Google has suffered 7 and, if Defendants’ conduct is not stopped, will continue to suffer, irreparable injury absent 8 injunctive relief. PRAYER FOR RELIEF 9 10 WHEREFORE, Google respectfully requests the following relief: 11 1. Declare that the Canadian Order is unenforceable in the United States as 12 inconsistent with the First Amendment, the Communications Decency Act, and the public policy 13 14 15 16 17 18 19 surrounding enforceability of foreign judgments pursuant to international comity; 2. Issue judgment in Google’s favor and against Defendants on all causes of action alleged herein; 3. Grant Google preliminary and permanent injunctive relief enjoining enforcement of the Canadian Order in the United States; 4. Grant such other and further relief as the Court may deem to be just and proper. DATED: July 24, 2017 QUINN EMANUEL URQUHART & SULLIVAN, LLP 20 21 22 23 24 25 By M^gret yy. Caruso Carolyn M. Homer Attorneys for Plaintiff Google Inc. 26 27 28 -13complaint Case Document 1 Filed 07/24/17 Page 14 of 143 EXHIBIT A 1Case 5:17-cv-04207 Document- 11 Filed 07/24/17 Page 15 of 143 IN THE THE SUPREME SUPREME COURT COURT OF OF BRITISH BRITISH COLUMBIA COLUMBIA IN Equustek Solutions Inc. v. Jack, 2014 BCSC 1063 Date: 20140613 Docket: S112421 Registry: Vancouver Between: Equustek Solutions Solutions Inc. Inc. Equustek Robert Angus Angus and and Clarma Clarma Enterprises Enterprises Inc. Inc. Robert Plaintiffs And Morgan Jack, Andrew Andrew Crawford, Crawford, Morgan Jack, Datalink Technologies Technologies Gateways Gateways Inc., Inc., Datalink Datalink 5, 5, Datalink Datalink 6, Datalink 6, John Doe, Doe, Datalink Datalink Technologies Technologies Gateways Gateways LLC and Lee Lee Ingraham Ingraham John LLC and Defendants Honourable Madam Justice Fenton Fenlon Before: The Honourable Reasons for Reasons for Judgment Judgment Counsel for the Plaintiffs: Counsel for the the Respondents Respondents to Application Corporation and and Google Google Inc.: Inc.: Google Canada Corporation Place and Date of Hearing: R.S. Fleming S.R. Schachter, Schachter, Q.C. G.B. Gomery, Gomery, Q.C. Vancouver, B.C. Vancouver, October 22 and 23, 2013 February 7, 2014 Further Further Written Submissions: March 7 and 24, 2014 May 23 and 29, 2014 Date of of Judgment: Judgment: Place and Date Vancouver, B.C. Vancouver, June June 13, 2014 2014 BCSC 1063 (CanLII) (CanLII) Citation: -2Case 5:17-cv-04207 Document-2 1 Filed 07/24/17 Page 16 of 143 Equustek Solutions Inc. v. Jack I. I. INTRODUCTION INTRODUCTION [1] [1] The two non-parties, The plaintiffs plaintiffs apply for an interim injunction restraining two Page 2 websites in in search search results websites results generated generated by by Google’s Google's search search engines. engines. This application novel questions about the Court’s authority authority to make such an order against a raises novel the Court's internet service provider. global internet [2] [2] Although the plaintiffs seek an order against Google Inc. and Google Canada Although is involved in the Corporation, there is no evidence that Google Canada Corporation is at the hearing search services the plaintiffs seek to enjoin. It was common ground at sought, if it is to that Google Inc. Inc. provides those those internet internet search services. The order sought, be made, must thus thus be made against Google Inc. Inc. Accordingly, when I use the term “Google”, II am to Google Inc. use the the term term "Google “Google Canada” "Google", am referring referring only only to Inc. II use Canada" to to refer refer to Google Canada Corporation in places. II. II. THE UNDERLYING UNDERLYING ACTION THE ACTION [3] [3] The manufacture networking devices that allow complex industrial The plaintiffs manufacture manufacturer to communicate with complex industrial equipment made by one manufacturer by another another manufacturer. manufacturer. equipment made by [4] [4] The The plaintiffs plaintiffs claim that the the defendants defendants other than Andrew Crawford and Lee Ingraham (hereinafter (hereinafter referred to as as “the Ingraham referred to "the defendants”), defendants"), while while acting as a distributor of the plaintiffs' the plaintiffs' plaintiffs’ products, conspired with one of the plaintiffs’ former engineering engineering design and manufacture manufacture a competing product, the employees and others to design defendants designed their competing product GW1000. The plaintiffs say that the defendants trade secrets. secrets. using the plaintiffs’ plaintiffs' trade [5] [5] The The plaintiffs plaintiffs also claim that for many many years before they made the the GW1000 the defendants defendants covered over the plaintiffs’ name name and and logo logo and and passed passed off off the the the covered over the plaintiffs' plaintiffs’ products as their own. Later when the defendants began manufacturing manufacturing the plaintiffs' relied on on the the plaintiffs' plaintiffs’ goodwill goodwill by by exclusively exclusively advertising advertising the the GW1000, they relied plaintiffs’ products products on on their their websites. plaintiffs' websites. The defendants then delivered their own 2014 BCSC 1063 (CanLII) (CanLII) Google Inc. Inc. and Google Canada Corporation, from from including including the the defendants' defendants’ -3Case 5:17-cv-04207 Document-3 1 Filed 07/24/17 Page 17 of 143 Equustek Solutions Inc. v. Jack Page 3 received orders orders for products, in a tactic competing product when when they received for the the plaintiffs’ plaintiffs' products, amounting to "bait “bait and and switch". switch”. amounting This underlying underlying action was commenced on April 12, 2011. The The defendants defendants various court orders from the failed to comply with various the outset of proceedings, resulting resulting in Gateways Inc. Inc. being struck struck the defences of Morgan Jack and Datalink Technologies Technologies Gateways June 2012. in June [7] [7] The The defendants defendants originally carried on business business in Vancouver Vancouver but but now now appear virtual company. They carry on business through a complex and to operate as a virtual network of websites through ever expanding network through which they advertise and sell their numerous court orders, orders, including including product. These websites have been the subject of numerous a December 2012 order prohibiting the defendants from carrying on business through any website. The defendants defendants continue continue to sell the GW1000 on their websites through in violation of these court court orders. [8] [8] Google is not a party to this action. It operates and maintains maintains internet intemet search that include include the defendants’ various various websites websites in in Google's Google’s search search results. results. services that the defendants' Google acknowledges acknowledges that it has the ability to remove remove websites from from its search engine results, and routinely does so in various situations. [9] [9] Following the December 2012 order prohibiting the defendants from from carrying carrying through any website, Google voluntarily voluntarily complied complied with with the the plaintiffs' plaintiffs’ on business through (“URLs”) from its request to remove specific webpages or uniform uniform resource locations ("URLs") removing 345 Google.ca search results (i.e. from searches originating in Canada), removing unwilling to block an entire category of URLs, URLs in total. However, Google is unwilling sometimes referred referred to to as as “mother results worldwide. sometimes "mother sites” sites" from its search results III. III. POSITION OF OF THE THE PARTIES PARTIES TO TO THIS THIS APPLICATION APPLICATION POSITION [10] [10] The injunction should should be granted against The plaintiffs plaintiffs take the position that an injunction search engine facilitates the Google because Google’s Google's search engine facilitates the defendants’ defendants' ongoing ongoing breach orders by leading customers to Datalink websites. of the Court’s Court's orders 2014 BCSC 1063 (CanLII) (CanLII) [6] [6] -4Case 5:17-cv-04207 Document-4 1 Filed 07/24/17 Page 18 of 143 Equustek Solutions Inc. v. Jack Page 4 Google takes theposition positionthat thatthe theCourt Courtdoes doesnot nothave have jurisdiction jurisdiction over over either [11] Google takes the Inc. or Google Canada because neither is present in British Columbia and Google Inc. refraining from doing anything anything in either British Columbia or Canada. Google argues that even if this Court has jurisdiction, the order sought should not be made for two (i) because because itit would would amount amount to to aa worldwide worldwide order that could could not be main reasons: reasons: (i) enforced and (ii) because it would constitute constitute an unwarranted unwarranted intrusion intrusion into into Google’s Google's lawful business activities as a search engine. lawful IV. IV. ISSUES ISSUES Theapplication applicationraises raisesthree three main main issues: issues: [12] The (i) (i) Does this Court have territorial competence over a worldwide internet search provider such as Google? (ii) (ii) should this Court decline to If the answer to the first question is yes, should exercise jurisdiction on the basis that California is the more appropriate forum? (iii) Should the order sought be granted? Should V. ANALYSIS ANALYSIS V. 1. 1. Does the the Court Court have territorial competence competence over over Google? Google? Does have territorial Determiningwhether whetherjurisdiction jurisdictionshould should be beassumed assumed in in aa case case with [13] Determining interjurisdictional aspects has always been a complex question. The worldwide interjurisdictional internet or or e-commerce e-commerce has has only only made made the the task task more more challenging. challenging. growth of intemet [14] The The startingpoint pointinindeciding decidingwhether whetherthe theCourt Courthas hasterritorial territorial competence competence to starting make the order sought against Google is the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 [CJPTA] [CJPTA] which codified and replaced the common is established established "by “by the the existence existence of of defined defined law in this area. Territorial competence is connections between the connections the territory territory or legal legal system… system... and a party to the proceeding or 2014 BCSC 1063 (CanLII) (CanLII) because the application for an injunction injunction does not not relate relate to to Google Google doing or 5 - Filed 07/24/17 Page 19 of 143 Case 5:17-cv-04207 Document- 15 Equustek Solutions Inc. v. Jack Page 5 the facts facts on on which which the the proceeding proceeding is is based": based”: Stanvtey Stanway v. Wyeth the Wyeth Pharmaceuticals Inc., 2009 BCCA 592 at para. 10. The plaintiffs plaintiffs accept they bear bear the the burden burden of of establishing establishing the the Court's Court’s territorial territorial the parties parties do not not agree on the standard standard of competence over Google. However, the applied to to this this analysis. proof to be applied (i) [16] [16] Standard of of Proof Proof applies? applies? What Standard The plaintiffs plaintiffs argue only show argue that that they they need need only show a good arguable case that within the Court’s jurisdiction, jurisdiction, sometimes Google is within the Court's sometimes described as a prima facie case. submits that ordinary, higher Google submits that the the ordinary, higher standard standard of of proof proof on on aa balance balance of probabilities applies. [17] [17] The Court of Appeal held that aa plaintiff plaintiff need only only establish establish an an arguable arguable case issubject subject to to the the Court's Court’sjurisdiction: jurisdiction: Purple Echo Productions, Inc. that a defendant is Echo] at paras. 41-42. That can be v. KCTS Television, 2008 BCCA 85 [Purple Echo] asserting facts facts that, that, ifif proved, proved, would would found found jurisdiction: jurisdiction: Purple Echo accomplished by asserting para. 36. 36.However, However, this thisconclusion conclusion is is predicated predicated on on the the assumption assumption that that "[i]f “[i]f an at para. an case were were made madeout, out,the thecase casewould wouldcontinue continuewith withjurisdiction jurisdiction potentially potentially arguable case still a live issue": issue”: Purple Echo at para. 37. 37. The The Court Court of of Appeal Appeal noted noted that since a still a live determination under what what is is now now Rule Rule 21-8(1) 21-8(1) is determination under is not a final determination, determination, a prima facie standard suffices: suffices: Purple Echo at para. 39. 39. The The standard standard of of proof proof is is thus thus clear when a defendant challenges challenges jurisdiction. jurisdiction. However, However, Google is not not a defendant, defendant, but a non-party respondent on an an interim interim application. application. non-party [18] [18] The order sought sought on this this application is an interim one in the underlying underlying action plaintiffs and turn out between the plaintiffs and defendants, defendants, and if ordered, may also turn out to to be timelimited against Google. However, ifif the the order is made made itit is is unlikely unlikely there will will be limited opportunity to another opportunity to consider consider the the Court’s Court's jurisdiction jurisdictionto tomake make an an order against In that that sense sense the the issue issue of of territorial territorial competence competence on on this this application application is aa final final Google. In determination. 2014 BCSC 1063 (CanLII) (CanLII) [15] [15] -6Case 5:17-cv-04207 Document-6 1 Filed 07/24/17 Page 20 of 143 Equustek Solutions Inc. v. Jack [19] [19] Page 6 On the other other hand, the the plaintiffs plaintiffs have had had limited limited opportunity opportunity to gather evidence in in support support of of the the jurisdictional jurisdictional facts establish the Court’s evidence facts they they rely rely on on to to establish the Court's member of of the the "Legal “Legal Removals” is a member Removals" team team in in Google’s Google's legal legal department, department, but discovery of limited. discovery of Google’s Google's corporate corporate structure structure and and operations operations has has been been limited. [20] [20] The Supreme Court of Canada Canada addressed addressed the the challenge challenge facing facing a court court in determining jurisdiction jurisdiction on interlocutory interlocutory motions motions in Club Resorts Ltd. Ltd. v. Van Breda, Breda] at para. 72: 2012 SCC 17, [2012] 1 S.C.R. 572 [Van Breda] [72] …[C]ourt decisions dealing with the assumption and ...[C]ourt decisions and the exercise of jurisdiction are jurisdiction are usually interlocutory interlocutorydecisions decisions made made at at the preliminary preliminary stages typically raised of litigation. litigation. These These issues are typically raised before before the trial begins. begins. As As a result, even though such such decisions can often be be of of critical importance to the parties and to the further conduct of of the litigation, litigation, they they must must be be made made on the basis of the pleadings, the affidavits affidavits of the parties parties and the documents in the record before the judge, which which might include expert reports reports or or opinions opinions about organization of of and procedure procedure in in foreign foreign the state of foreign law and the organization to jurisdiction jurisdiction must be settled in this context, courts. Issues of fact relevant to often on a prima facie basis. These These constraints underline underline the delicate delicate role role of the motion judges who must consider these issues. these [21] [21] In proof on a balance of of probabilities probabilities is the In my view, proof the appropriate standard standard on this application because the the jurisdictional jurisdictional ruling ruling is a final one vis à this a vis the applicant respondent. However, that that standard standard should should be be applied applied while while recognizing recognizing that and respondent. plaintiffs have had aa limited limited opportunity opportunity to marshal supporting supporting evidence. the plaintiffs (ii) [22] [22] plaintiffs established territorial competence? competence? Have the plaintiffs I return return now Does Google Google fall fall into into one of of the the now to to the the substantive substantive question: question: Does connecting factors specified in the CJPTA? Neither Neither Google nor connecting nor Google Google Canada Canada is of business in British British Columbia. Section 3(e) of of the the CJPTA registered or has a place of that: provides that: 3 territorial competence in a proceeding that is brought brought A court has territorial against a person only if … (e) and substantial substantial connection connection between between British British there is a real and Columbia and the facts on which the proceeding against that person is based. 2014 BCSC 1063 (CanLII) (CanLII) territorial competence Smith, who who territorial competence over over Google. Google. They They have cross-examined Steven Smith, Case 5:17-cv-04207 Document- 717 - Filed 07/24/17 Page 21 of 143 Equustek Solutions Inc. v. Jack Page 7 [23] Section Section10 10of of the the CJPTA provides that "a “a real and and substantial substantial connection" connection” [23] British Columbia and the facts on which which the proceeding is based is between British connecting factors s. 10, 10, asserting asserting that that this this application: application: connecting factors listed listed in ins. (a) is brought brought to to enforce, enforce, assert, declare or determine proprietary or possessory possessory rights or a security interest in property in British Columbia that is immovable or movable property, property, … (h) (h) concerns a business carried on in British Columbia, (i) is a claim for an injunction injunction ordering a party to do or refrain from doing (i) anything (i) in British British Columbia, Columbia, or (i) (ii) in relation relation to property in British British Columbia Columbia that that is is immovable or (ii) movable property, property, Before consideringany anyofofthese theseconnecting connectingfactors factorsindividually, individually, II note note that that [24] Before considering of the CJPTA is contextual. application of the the presumptive presumptive factors factors in s. 10 of contextual. The CJPTA, like many of the cases cases addressing conflicts conflicts of laws, laws, focuses focuses on parties to a dispute in which dispute which one one has has a cause of action against against the the other. other. However, proceeding “an action, suit, is defined broadly in s. 1 of the CJPTA as "an suit, cause, matter, petition preliminary proceeding or requisition requisition proceeding proceeding and and includes includes a procedure and aa preliminary motion”. Thus, motion". Thus, the the “proceeding” "proceeding" with with respect respect to to which which II must must answer answer the the question of jurisdiction is plaintiffs and jurisdiction is not not the the underlying underlying dispute dispute between between the plaintiffs and defendants defendants but the relief that is specifically sought sought against Google. Turningto to connectingfactors factorsthe theplaintiffs plaintiffsrely relyon, on,I Ifirst first conclude conclude that that [25] Turning thethe connecting s. 10(i) 10(i) of of the the CJPTA is not plaintiffs apply to not applicable. The plaintiffs to compel compel Google to take was vague vague about about the the location location of of the steps to alter its its search engine. While Google was computers that search engine engine program, program, itit is is certain certain that that those those computers computers computers that operate the search not located in British Columbia. It follows follows that are not that the order sought sought does not relate to taking steps in in British British Columbia or or in in relation to property in British Columbia. Google taking [26] I conclude I concludethat thats.s.10(a) 10(a)of of the the CJPTA is applicable. This connecting connecting factor [26] presumptive substantial substantial connection connection in a proceeding proceeding brought brought to enforce establishes aa presumptive 2014 BCSC 1063 (CanLII) (CanLII) to exist if certain facts pertain. The plaintiffs plaintiffs rely on three of the presumed to -8Case 5:17-cv-04207 Document-8 1 Filed 07/24/17 Page 22 of 143 Equustek Solutions Inc. v. Jack Page 8 proprietary rights over over immoveable immoveable or moveable property in proprietary rights in British Columbia. The plaintiffs’ intellectual underlying action is moveable plaintiffs' intellectual property property at at the the heart heart of of the underlying rights. [27] [27] The plaintiffs plaintiffs acknowledge sales occur acknowledge that that the the vast vast majority majorityof ofGW1000 GW1000 sales outside of Canada, but II accept accept that that at at least least to to the the extent extent that that the the order order sought sought outside Canada, but relates to the enforcement of intellectual intellectual property property rights rights in in British BritishColumbia, Columbia, s. s. 10(a) 10(a) be aa weak weakconnecting connecting factor, factor, but but that that is is not not aa consideration consideration at at this this applies. It may be of the jurisdictional jurisdictional analysis. stage of [28] [28] I conclude conclude that is also aa connecting connecting factor, and a stronger stronger one, that s. 10(h) is the injunction injunction sought sought concerns carries on on in in British British because the concerns a business that Google carries The question question of of whether whether Google Google carries carries on on business business in in British British Columbia Columbia. The requires a detailed consideration consideration of of Google's Google’s operations. operations. requires a detailed [29] [29] Google Canada Canada is is aawholly wholly owned owned subsidiary subsidiary of of Google. Google. ItIt is is chiefly chiefly Google’s services, services, including including its its search search advertising, advertising, responsible for marketing marketing Google's engineering efforts efforts on products engineering products other other than than Google Google search, and other forms of interaction with interaction with the the Canadian Canadian public public such such as as policy policyoutreach. outreach. Google Google Canada Canada is incorporated in incorporated in Nova Nova Scotia and and has offices in in Montreal, Montreal, Toronto, Toronto, Ottawa, Ottawa, and Google Canada Canadaisisnot notextra-provincially extra-provincially registered registered in in British British Columbia. Waterloo. Google [30] [30] Google is a publically publically traded Its traded company company incorporated incorporatedin inDelaware, Delaware, USA. USA. Its head office is in Mountain Mountain View, California and its internet intemet search services are “operated out of that facility". facility”. ItIt too is not "operated not extra-provincially extra-provincially registered in British Google has has two two wholly wholly owned owned subsidiaries subsidiaries that that are areextra-provincially extra-provincially Columbia. Google registered in British BritishColumbia, Columbia,Google Google Payment Payment Corp. Corp. and and Google Google Canada Canada Payment have no no evidence evidence about about the the activities activities of of those companies. Corp., but I have [31] [31] Google operates the Google Google search search engine engine that that makes makes internet internet search search results results through dedicated websites for each country country around available through around the the world. world. For Google provides provides internet internet search services services to to users users in Canada Canada through through example, Google 2014 BCSC 1063 (CanLII) (CanLII) property. The plaintiffs plaintiffs seek to enjoin Google in order to enforce their proprietary property. -9Case 5:17-cv-04207 Document-9 1 Filed 07/24/17 Page 23 of 143 Equustek Solutions Inc. v. Jack Page 9 “www.google.ca”, to to users users in in the the United United States Statesthrough through "www.google.com", “www.google.com”, and and to to "www.google.ca", users in in France France through through "www.google.fr". “www.google.fr”. Despite Despiteproviding providing country country specific specific search users website dedicated to their their particular particular country. country. Thus Thus users users in in Canada Canada can search through through "www.google.fr", “www.google.fr”, and and vice vice versa. versa. [32] [32] There are are hundreds hundreds of of millions millions of active active websites over over the the internet intemet and trillions of internet aa viable viable and effective effective trillions ofwebpages. webpages. Search Search engines engines make the internet information and communication internet cannot cannot be besuccessfully successfully information communication resource. The intemet without search services such as those Google Google provides. provides. Although Although there navigated without internet search companies, 70-75% of intemet internet searches searches worldwide worldwide are are other intemet 70-75% of through Google. done through [33] [33] Google does not charge for providing providing internet internet search search services. services. ItIt earns money in other primarily by selling other ways, primarily selling advertising advertising space space on on the the webpages that display results. Google's Google’s advertising advertising success success is is driven driven by by the the very very high high quality quality of of its its search results. results. Its income from these commercial activities activities is about $50 $50 billion billion search results. annually. [34] [34] Google says that the the fact that that an an intemet internet search search is is initiated initiated in in British British to Google Google carrying carrying on on business business in the province. Google Columbia does not equate to on the the plaintiffs' plaintiffs’ reasoning country on earth whose civil civil argues that on reasoning there is not a country courts could results. Rather, courts could not not assert assert jurisdiction jurisdiction over over Google Google in in respect respect of search results. suggests Google, Google, "some “some form form of of actual actual not not virtual virtual presence is required". required”. Google suggests presence is heavily on Van Breda in which relies heavily which LeBel J. wrote wrote at at para. para. 87: [87] Carrying on business in the jurisdiction jurisdiction may may also also be considered an appropriate connecting factor. factor. But But considering consideringititto tobe be one one may may raise raise more difficult difficult issues. issues. Resolving Resolving those those issues issues may require some some caution in order to avoid creating what would would amount amount to to forms forms of of universal jurisdiction jurisdiction in in respect respect of tort tort claims arising arising out out of of certain certain categories categories of of business business or or commercial commercial activity. activity. Active Active advertising advertising in in the jurisdiction jurisdictionor, or, for forexample, example, the the fact that a Web site site can can be be accessed accessedfrom fromthe thejurisdiction jurisdiction would would not suffice suffice to establish Web The notion notion of of carrying carrying on that the defendant is carrying on business there. The business requires some form of actual, not only virtual, virtual, presence in the jurisdiction, such as maintaining maintaining an office there or regularly visiting the jurisdiction, such territory of the particular jurisdiction. territory jurisdiction. [Emphasis [Emphasis added.] 2014 BCSC 1063 (CanLII) (CanLII) that intemet internet users users are arenot not restricted restricted to to using using the the websites, Google acknowledges that Case 5:17-cv-04207 Document- 10 1 -Filed 07/24/17 Page 24 of 143 Equustek Solutions Inc. v. Jack Page 10 full. The next line adds what is, in my view, Google did not quote that that paragraph in full. But the Court has not been asked in this appeal to decide whether and, if so, when e-trade e-trade in in the the jurisdiction jurisdiction would would amount to to aa presence in the jurisdiction. In contrast to Van Breda, the matter involves e-commerce, or at least matter before me involves providing an “e-service”. providing an "e-service". [35] substantial connection connection cannot Van Breda indicates that that a real and substantial cannot be derived passive website website can be be accessed accessed in in the the jurisdiction. jurisdiction. To from the the mere fact that a passive similar effect is Thumbnail Creative Group Inc. v. Blu Blu Concept Inc., 2009 BCSC 1833 [Thumbnail]. In plaintiff claimed the defendant breached breached copyright copyright In that that case the plaintiff published these by publishing publishing the the plaintiff’s plaintiffs images. images. The defendant published these images in a book in the could be purchased internet. Madam Justice the United States which could purchased on the the internet. Madam Justice Dickson said at para 19: [19] … useof of the theInternet Internet in in the thecourse courseof of conducting conducting business business does not ... use mean the business business in question question is carried on globally globally for mean the for the purposes of of a territorial competence territorial competence analysis. As counsel for [the defendants] points out, if this were so so the Supreme SupremeCourt Courtof of British British Columbia Columbiawould would have havejurisdiction jurisdiction in any dispute involving involving any any business that that makes long-distance telephone calls into this [The plaintiff] plaintiff] did not provide this province province or or relies relies upon upon the Internet. [The authority in support of this this far far reaching proposition, which is, in my view, authority unsustainable. [Emphasis added.] [36] [36] ItIt follows Thumbnail that the ability of someone in in British British follows form Van Breda and Thumbnailthat created by by aa person personin in another another country country does does not not of itself Columbia to open a website created give this Court jurisdiction jurisdiction over overthe the creator creator of of that that website. website. Something Something more is Van Breda, the Court considered factors factors such such as whether required. In Van whether the defendants’ representatives representatives regularly regularly travelled travelled to to Ontario Ontario to to further further the the defendants' defendants’ defendants' promotional activities for its promotional its resorts resorts and whether whether it distributed promotional promotional materials in the province. In Thumbnail, Dickson J. considered that that the connection connection between defendants and British British Columbia the defendants Columbia appeared to be limited to to the the sale of one copy of the defendant’s defendant's book. 2014 BCSC 1063 (CanLII) (CanLII) qualification: an important qualification: Case 5:17-cv-04207 Document- 11 1 -Filed 07/24/17 Page 25 of 143 Equustek Solutions Inc. v. Jack [37] [37] Page 11 E-commerce has has exponentially exponentially increased increased the the difficulty difficulty of of determining determining whether whether E-commerce is carrying carrying on business in in aa particular particular jurisdiction; jurisdiction; itit raises the a company is the spectre of submits with Meehan comments comments in in"The “The Continuing Continuing Conundrum Conundrum submits with some alarm. Kevin Meehan of International International Internet Internet Jurisdiction” Jurisdiction"(2008) (2008)31 31BC BC Int’l Int'l&&Comp CompLLRev Rev345 345 at 349: In the traditional traditional analog world, it is is relatively relatively easy for courts to to determine the locations of geographical locations of the persons, objects, and activities activities relevant to a particular The geography geography of the the digital world of the Internet, however, is particular case. case. The not as easily charted. charted. Content Content providers providers may may physically physically reside, conduct their business, and locate locate their servers in in aa particular particular location, location, yet their content is readily accessible from anywhere in the world. Furthermore, attempts to identify identify the location location of of aa particular particular user user over over the Internet Internet have proven extremely difficult, difficult, and many Internet users users compound compound this problem by intentionally principles of international intentionally hiding their location. Traditional principles jurisdiction, particularly particularly territoriality, territoriality, are are poorly suited for this this sort of environment of geographic geographic anonymity. anonymity. Courts have struggled to to develop develop a satisfactory solution, uniform global solution, yet yet no no progress progress has has been been made made toward aa uniform standard of Internet jurisdiction. jurisdiction. [38] [38] In short, short, courts traditionally focused locating the behaviour in issue courts have have traditionally focused on locating the behaviour within aa particular particular state’s within state's borders borders to to ensure ensure that that “the "the connection connection between between a state and cannot be weak weak or or hypothetical hypothetical [so as to] to] cast doubt upon the a dispute cannot the legitimacy of of state power power over over the the persons persons affected affected by by the the dispute" dispute” [Van Breda at the exercise of 32]. Online Online activities, activities, whether whether commercial or otherwise, para. 32]. otherwise, are not so easily pigeonholed. [39] [39] In Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) (3d) 416, 416, 2004 2004 CanLII CanLII 12938 (C.A.) [Barrick Gold], an Ontario company sued sued aa British British Columbia resident, resident, alleging that company by posting posting hundreds hundreds of messages on alleging that he was defaming the company internet websites accusing accusing the money laundering, laundering, internet the company of fraud, tax evasion, money 30 the the Ontario Ontario Court Court of of Appeal Appeal quoted quoted with with approval approval from and genocide. At para. 30 from a High Court of Australia Australia decision that said: The Internet is essentially a decentralized, self-maintained telecommunications network. It is made made up up of of inter-linking inter-linking small small networks ubiquitous, borderless, global from all parts of the world. It is ubiquitous, global and ambient in Hence the term "cyberspace" "cyberspace".This This is is aa word word that that recognizes recognizes that its nature. Hence interrelationships created by the Internet Internet exist exist outside outside conventional the interrelationships geographic comprise a single interconnected body of data, geographic boundaries and comprise potentially amounting to a single body of knowledge. The Internet Internet is potentially 2014 BCSC 1063 (CanLII) (CanLII) being found found to carry on business all over the world, just just as Google a company being 12 -Case 5:17-cv-04207 Document-- 12 1 Filed 07/24/17 Page 26 of 143 Equustek Solutions Inc. v. Jack Page 12 [40] [40] The Ontario Court of Appeal went went on on to note that that these these characteristics characteristics create challenge in the defamation context context and a challenge and that that “Traditional "Traditionalapproaches approaches … ... may not to the the realities realities of of the the Internet Internet world": world”: Barrick Gold at para. 32. respond adequately to [41] [41] Canadian courts have found found some some assistance assistance regarding regarding jurisdiction jurisdiction and the Canadian courts internet in American cases. As academic commentators commentators note, internet note, American jurisprudence is is "an “an imperfect the American American approach approach to to personal personal jurisdiction jurisdiction jurisprudence imperfect fit, fit, as as the has its its roots roots in in that that country's country’s constitutional has constitutional requirement requirement for for minimal minimal contact contact in order to establish establish due to due process.”: process.": Teresa Teresa Scassa & Michael Deturbide, Electronic Commerce and Internet Law in Canada, 2nd ed (Toronto, (Toronto, Ontario: Commerce Ontario: CCH CCH Canadian Limited, 2012) Limited, 2012) at 602 [Scassa & Deturbide]. [42] [42] Canadian courts have widely widely considered the United United States States District District Court Canadian courts decision in Zippo Manufacturing Manufacturing v. Zippo Zippo Dot Dot Com Com Inc., 952 F Supp Supp 119 119 (WD Pa 1997) [Zippo]: Braintech, Braintech, Inc. Inc. v. Kostiuk, 1999 BCCA 169 [Braintech], Pro-C Ltd. v. Computer City Inc., [2000] O.J. Computer O.J. No. 2823 (S.C.J.), Wiebe v. Bouchard et al., 2005 BCSC 47. [43] [43] The plaintiff plaintiff in Zippo is a Pennsylvania Pennsylvania corporation that that manufactures manufactures Zippo lighters. ItIt claimed that corporation that lighters. that the the defendant, defendant, a California corporation that operated an internet news service and website under under the the domain domain names names "ZippoNews.com", “ZippoNews.com”, internet “Zippo.com” and and "Zippo.net", “Zippo.net”, infringed infringed its defendant’s officers, officers, "Zippo.com" its trademark. The defendant's internet servers were located located in in California and itit had had no no offices, offices, employees, and internet Pennsylvania. Pennsylvania Pennsylvania residents accessed the the employees, or agents in Pennsylvania. defendant’s website, signed defendant's signed up, up, and received received a news news message service. Three thousand of the defendant’s 140,000 140,000subscribers subscribers world-wide world-wide were were Pennsylvania Pennsylvania thousand the defendant's residents. Contracts residents. Contracts between users users in in Pennsylvania Pennsylvania and and the the defendant defendant were entered into on the website. into 2014 BCSC 1063 (CanLII) (CanLII) accessible in virtually can be be obtained obtained virtually all all places places on on Earth Earth where access access can either by wire connection or by wireless wireless (including satellite) links. Effectively, access to to the Internet is possession possession of the means of the only constraint on access system and and possession possession of the securing connection to a telecommunications system basic hardware. [Italics [Italics added added by the Ontario Court of Appeal.] 13 -Case 5:17-cv-04207 Document-- 13 1 Filed 07/24/17 Page 27 of 143 Equustek Solutions Inc. v. Jack [44] [44] Page 13 The issue was was whether whether Pennsylvanian's Pennsylvanian’s long-arm long-arm statute statute could could "reach" “reach” the the in California and exercise exercise personal personal jurisdiction jurisdiction over it. As in Van Breda defendant in insufficient basis was an insufficient basis for for the the state state where where the the website was accessed to assert jurisdiction. [45] [45] However, the the Court Court found found it had jurisdiction jurisdiction because because the the defendant defendant had jurisdiction by conducting subjected itself to Pennsylvania’s Pennsylvania's jurisdiction conducting electronic electronic commerce in Pennsylvania through through its interactive interactive website. Pennsylvania [46] [46] In Scassa & Deturbide at 604, 604, the the authors authors note note that in the years since since Zippo, American courts courts began began to to feel feel uncomfortable uncomfortable with with the the vague vague "interactivity" “interactivity” concept of American moved towards towards aatest testthat that focussed focussed on on"targeting" “targeting” aa jurisdiction, jurisdiction, which fit Zippo and moved like defamation where the Zippo test was particularly particularly more easily in areas like inadequate. The The concepts concepts of of interactivity interactivity and targeting targeting are of assistance in carries on on business business in in British British Columbia through through its assessing whether Google carries websites. [47] [47] Google submits submits that it merely offers a passive passive website to to residents residents of of British British the internet. internet. ItIt argues argues that that its its programs programs automatically automatically Columbia who wish to search the search results results without without Google Google being being actively actively involved involved in in the particular particular generate search Paragraph 23 23of of Google's Google’s written written submissions submissions state: state: search. Paragraph [23] … Google’s internet internet search search engine engine allows allows users users to to enter key-words ... Google's enter key-words and then Google generates generates aalist list of of results in a specific specific ranked order. Google’s search results results are computer generated generated through through the the use use of of Google's Google’s Google's search are computer highly highly confidential confidential and and proprietary proprietary algorithm algorithmand and methodology. methodology. Google’s Google's web web crawler program (referred to to as as "Googlebot") “Googlebot”) reviews reviews the the content content that that is is crawler program (referred available on trillions trillions of Search results ofwebpages webpages or or URLs URLs over over the internet. internet. Search are generated based based on onthat that content content [within [within seconds]. [48] [48] I conclude conclude that Google’s internet internet search search websites websites are are not not passive passive information information that Google's letters or a word word of their query, query, Google sites. As a user begins to type type a few letters anticipates the offers a menu of suggested potential potential search queries. anticipates the request and offers offerings are based on on that that particular particular user's user’s previous previous searches as well as as the the Those offerings keywords most commonly phrases or keywords commonly queried queried by all all users. users. As James Grimmelman 2014 BCSC 1063 (CanLII) (CanLII) concluded that and Thumbnail, the Court concluded that being able to access a passive website 14 -Case 5:17-cv-04207 Document-- 14 1 Filed 07/24/17 Page 28 of 143 Equustek Solutions Inc. v. Jack Page 14 writes in writes in “The "The Structure StructureofofSearch SearchEngine EngineLaw” Law"(2007-2008) (2007-2008)93 93 Iowa IowaLL Rev Rev 11 at at 1010- Search engines Search engines are are also also increasingly increasingly learning from the large volumes of query data they have accumulated. accumulated.AA user's user’s history history of of queries queries can can provide provide useful information information about about her her probable probable intentions intentions---- for for example, example, whether she search engines tends towards navigational navigational or transactional queries. Similarly, search and failures by seeing which gain useful feedback into their their own successes successes and results users click on on or or by by noticing noticing long longstrings stringsof ofsearches searches on on related related terms, which may indicate indicate that that the the user user is is having having trouble trouble finding finding what what she's she’s looking looking which may for. [49] [49] Google collects collects a wide range of of information information as aa user user searches, searches, including including the user’s IP address, location, location, search whether the user acts on the user's IP address, search terms, terms, and whether the search results offered offered by by "clicking “clicking through” list. results through" to to the the websites websites on the list. [50] [50] In Google sells sells advertising advertising to to British British Columbia In addition to to its its search services, Google clients. Indeed, Google entered entered into into an an advertising advertising contract contract with with the defendants clients. defendants and products up to the this application. advertised their products the hearing hearing of this application. Google acknowledges filed an an affidavit affidavit explaining explaining its it should should not not advertise advertise for for the the defendants defendants and filed inadvertent failure failure to suspend account prior prior to the hearing. inadvertent suspend the the defendants’ defendants' Google account [51] [51] Although Google’s Google Although Google's advertising advertising business business is is marketed marketed in in Canada Canada by by Google Canada, British British Columbia residents residents who Canada, who wish wish to to advertise advertise on on Google’s Google's webpages contract directly directly to Google. Google. Although Although those contract directly with with Google Google and make payments directly contracts stipulate contracts stipulate that that disputes disputes will will be be governed governed by California California law law and adjudicated “choice of of laws" laws” provision in California courts, the "choice provision in in those those contracts contracts does not alter Google is is carrying carrying on on aa business business in inthis this province province through through advertising advertising the fact that Google contracts with British Columbia residents. contracts [52] [52] The Supreme Supreme Court Court of of Canada Canadanoted noted that that advertising advertising in in aajurisdiction jurisdiction is not not by sufficient connection territorial competence: Van Breda at itself a sufficient connection to establish territorial 87, 114. 114.But But there there is isaadifference difference between between aacompany company advertising advertising its its own paras. 87, through a website or other media media available available to to British British Columbia residents, residents, services through business of of selling selling advertising internet to other and engaging in the business advertising space on the internet 2014 BCSC 1063 (CanLII) (CanLII) 11: 11. 15 -Case 5:17-cv-04207 Document-- 15 1 Filed 07/24/17 Page 29 of 143 Equustek Solutions Inc. v. Jack Page 15 British Columbia. companies in British Columbia. There There is uncontradicted uncontradicted evidence evidence before me that sells advertising advertising to British Columbia residents, including including the defendants. Google sells Google submits submits that its advertising from its advertising services services are are completely completely separate from and cannot cannot justify justify the Court Court assuming jurisdiction jurisdiction over search services, and over Google’s Google's With respect, respect, II do do not not agree agreewith with that that proposition proposition for for two reasons. search services. With [54] [54] First, Google’s business business model model is is contextual contextual advertising; advertising; the the "context" “context” is the First, Google's search done done using using Google’s search services. services. Ads Ads are are linked linked to to either either the the subject subject search Google's search history of the not charge matter of the search, or the history the person searching. Google does not space on on its its websites websites to to advertisers users of its its search services. Rather, itit sells space whose ads ads are are displayed displayed alongside alongside the the search search results results generated by aa user's user’s query. query. whose generated by [55] [55] These ads ads can can relate relate to to the the topics topics searched. searched. For For example, example, ifif "Vancouver “Vancouver lawyers” is showing a list of lawyers will lawyers" is searched, searched, a a page page showing a list of Vancouver Vancouver lawyers will be be generated. generated. At the top of the list list aa number number of ads show up for law firms firms that that have have paid Google in ads look look like the other search results results but order to advertise there. Those ads but are marked by Ad.. [56] [56] These ads ads can can also be be unrelated unrelated to to the the content content of the the search, but geared to a particular searcher. particular searcher. For example, if the user has in the the past searched a retail outlet may appear appear on the the page page showing showing the the search search results results website, ads for that retail outlet for the query "Vancouver “Vancouver lawyers". lawyers”. Google Google can canindividually individually tailor tailor the advertising advertising for the query user each each time time they they search search using using the the information information in the seen by aa user the search query and that user's user’s own own search search history. history. that [57] [57] Google made the the same argument argument that its ad and search services services are unrelated in submissions submissions to Spain SL and unrelated to the the European Court of Justice Justice in Google Spain Agencia Espanola Española de de ProtecciOn Protección de Datos (AEPD) and Mario Costeja Google Inc. v. Agencia Gonzalez, González, C-131/12 [González]. European Court Court of of Justice Justice delivered delivered judgment judgment [Gonzalez]. The European May 2014. 2014.Its Its reasons reasons are areavailable available online online but but are are not not yet yet published. published. In that that on 13 May dispute, Mr. Gonzalez González lodged lodged aa complaint complaint with the Data Protection Protection Agency dispute, the Spanish Data González’s name name in in the the based on the the fact that that when when an internet intemet user user entered entered Mr. Gonzalez's 2014 BCSC 1063 (CanLII) (CanLII) [53] [53] 16 -Case 5:17-cv-04207 Document-- 16 1 Filed 07/24/17 Page 30 of 143 Equustek Solutions Inc. v. Jack Page 16 the user user would would obtain links links to two Google search engine, the two pages of a newspaper published in relating to attachment attachment proceedings proceedings against published in January January and and March March of 1998 1998 relating [58] [58] Mr. Gonzalez González applied applied to to order order the newspaper to to remove or alter its webpages so that that his his personal personal data data no no longer longer appeared. appeared. He also requested requested that that Google Google Spain be required required to remove or or conceal his his personal data so that that itit was not or Google be included in search results concerning him included results given that the attachment proceedings concerning been fully fully resolved number of years “reference to to them them was was now now had been resolved for for a number years and any "reference entirely irrelevant” entirely irrelevant" (para. (para. 15). [59] [59] The Spanish Data Data Protection Protection Agency upheld upheld Mr. Gonzalez's González’s complaint complaint Google on on the basis basis that search engine operators operators were against Google Spain and Google subject to subject to data protection legislation. legislation. Google Google appealed that decision to the National High Court which which in turn Court of of Justice Justice for turn referred referred the the matter matter to the the European Court preliminary rulings. Court of of Justice Justice confirmed that the promotion and preliminary rulings. The The European Court advertising space in in relation to Spain constituted the the bulk bulk of sale of advertising Spain constituted of Google’s Google's activity and was "regarded “regarded as as closely closely linked linked to to Google Search” commercial activity Google Search" (para. 46). 46). The The European European Court Court of of Justice Justice concluded concluded at at para. 56: [56] … the activities activities of the operator of the search engine [Google] [Google] and ... the those of its its establishment establishment situated situatedin inthe theMember Member State State [Google [Google Spain] are inextricably inextricably linked since since the activities activities relating to the concerned are advertising advertising space constitute constitute the the means means of rendering rendering the the search engine at issue economically economically profitable profitable and and that that engine engine is, is, at at the the same same time, time, the the means enabling activities to enabling those activities to be be performed. [60] [60] González concerned the protection of personal information information and While Gonzalez particular statutory particular statutory provisions, provisions, the the analysis analysis relating relating to to the the connection connection between Google’s advertising advertising and search functions functions is is of of assistance. too conclude conclude that the Google's and search assistance. II too business are are inextricably inextricably linked; neither two parts parts of of Google’s Google's business neither service can stand alone. [61] [61] Second, whether the the advertising advertising activity activity conducted conducted in in British British Columbia is is the as the the activity activity which the plaintiff plaintiff seeks to enjoin same as enjoin is is not not germane germane to the territorial competence the advertising advertising business and territorial competence analysis. analysis. The difference between the 2014 BCSC 1063 (CanLII) (CanLII) González for for the the recovery recovery of of social social service debts. Mr. Gonzalez 17 -Case 5:17-cv-04207 Document-- 17 1 Filed 07/24/17 Page 31 of 143 Equustek Solutions Inc. v. Jack Page 17 goes to to the the strength strength of the connection connection between the search business to be enjoined goes and British British Columbia. It could could thus thus be a factor when assessing assessing whether whether the matter and the Court Court has in personam jurisdiction, jurisdiction, it has it for all purposes. competence. Once the [62] [62] Further, territorial competence stage of the analysis, the Court Court is not Further, at the territorial looking for this forum, but for a connection connection looking for the the strongest strongest possible connection connection to this sufficient to requirements of the CJPTA. In Purple Echo the plaintiff sufficient to meet meet the the requirements damages for for alleged breaches of of aa co-production co-production agreement with with claimed damages which was licenced licenced to to broadcast only only in the broadcaster KCTS KCTS which the United States, although broadcasts KCTS was was found found to to have although broadcasts were were available available to to viewers viewers in in Canada. Canada. KCTS of business in British federally incorporated incorporated a place of British Columbia Columbia because because PCPTA, PCPTA, aa federally Canadian corporation corporation with an office in Vancouver, donations for Canadian Vancouver, solicited Canadian Canadian donations KCTS under under contract contract and paid the KCTS the money money to to KCTS: Purple Echo at paras. 44-46. The Court Court of of Appeal's Appeal’s finding finding that that British British Columbia Columbia had had territorial territorial competence competence turned turned The number of of other factors as as well, well, but the Court Court nonetheless nonetheless included included the link link on a number the "parent" “parent” and as aafactor factor supporting supporting the the connection connection between the and its agent company as that parent company company and and British British Columbia. between that [63] [63] In find that Google's Google’s search and and advertising advertising services are In any event, II find inextricably linked. inextricably [64] [64] II will will address Google’s submission submission that that this this analysis analysis would would give every address here here Google's state in in the the world world jurisdiction state jurisdictionover overGoogle’s Google'ssearch searchservices. services. That That may may be so. But But if natural consequence so, it flows flows as a natural consequence of Google doing business business on a global scale, not from from a flaw in the the territorial territorial competence competence analysis. analysis. As Janet Walker writes in Canadian Conflict Conflict of of Laws, Laws, loose-leaf, 6 ed (Markham, Ontario: Ontario: Castel & Walker: Canadian LexisNexis, 2005), ch 11 11 at at27, 27,aalegal legalperson personsuch such as asaacorporation corporation can can be be subject subject LexisNexis, 2005), ch multiple jurisdictions through registration, to multiple jurisdictionswhether whether because because it is resident resident there through registration, or because itit is is carrying on on business business in in that that jurisdiction. jurisdiction. Further, the the territorial territorial because analysis would would not not give give every every state state unlimited unlimited jurisdiction jurisdiction over Google; competence analysis 2014 BCSC 1063 (CanLII) (CanLII) but itit does does not not affect affect this this court's court’s territorial territorial British Columbia is the appropriate forum, but 18 -Case 5:17-cv-04207 Document-- 18 1 Filed 07/24/17 Page 32 of 143 Equustek Solutions Inc. v. Jack Page 18 jurisdiction will be confined to issues closely associated with the the forum forum in accordance with private international law. In summary on this issue, I conclude that the Court has territorial competence over Google on this application. 2. 2. [66] [66] Is British Columbia the the appropriate forum? Is British Columbia appropriate forum? Should the Should the Court decline to exercise its jurisdiction on the the basis that that there there is another, more convenient convenient forum in which to adjudicate this application? As As the another, Supreme Court of Canada observed observed in Van Breda at para. 101, a clear distinction must be drawn between the the existence existence and and the the exercise exercise of jurisdiction. jurisdiction. The The former former is concerned generally with preventing jurisdictional overreach and respecting the authority of foreign courts, the latter is concerned with fairness to the parties and authority Although efficient resolution of the dispute: Van Breda at paras. 22, 104-105. Although Google did not frame its argument argument expressly expressly in terms terms of forum non conveniens, it Therefore, the asserted that California is a better forum to hear this application. Therefore, issue must be addressed. [67] [67] Once jurisdiction is established, the burden falls on on Google to show show why why the Court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiffs: Van Breda at para. 103. Google must show that the alternative alternative forum forum is clearly more appropriate and that, in in light of of the characteristics of of the the alternative alternative efficiently there. forum, the matter can be adjudicated more fairly and efficiently [68] [68] In British British Columbia Columbia the the Court’s discretion to to stay in favour In Court's discretion stay the the proceeding proceeding in favour of of another state's state’s jurisdiction s. 11(1) 11(1) of of the CJPTA: CJPTA: another jurisdiction is grounded grounded in ins. 11 (1) (1) After Afterconsidering consideringthe the interests interests of of the parties to a proceeding and the ends of justice, a court may may decline to exercise exercise its its territorial territorial competence competence in the proceeding on the ground ground that that a court of of another another state state is is aa more appropriate forum in which to hear the proceeding. [69] [69] Google’s submissions in in support support of of a a stay can be into three Google's submissions stay can be grouped grouped into three main main arguments: 2014 BCSC 1063 (CanLII) (CanLII) [65] [65] 19 -Case 5:17-cv-04207 Document-- 19 1 Filed 07/24/17 Page 33 of 143 Equustek Solutions Inc. v. Jack (i) (i) Page 19 The Court should should decline jurisdiction jurisdictionbecause because Google Google has agreed to block specific websites from its search results results and the the plaintiffs plaintiffs have (ii) (ii) Google has aa stronger stronger connection connection to California; and (iii) (iii) California court court can be enforced. enforced. An order made by aa California I will deal deal with each each submission submission in in turn. turn. (i) [70] [70] Is an out-of-court remedy available to to the the plaintiffs? plaintiffs? Google submits submits that plaintiffs have without a that the the plaintiffs have aa remedy available to them without court order but have failed failed to to avail avail themselves themselves of ofit. it.Although Although this this isisnot not strictly strictly court forum, it is convenient speaking another forum, convenient to to address address the the question question here. here. After Google of this this Court's Court’s orders in the fall of 2012 2012and andthe theplaintiffs plaintiffs filed filed this this received notice of application, Google agreed to to take take down down the the defendants' defendants’ websites websites that that the the plaintiffs plaintiffs application, identified by way of a specific URL. identified [71] [71] The plaintiffs plaintiffs initially initially agreed agreed to to try try that that route route and and adjourned adjourned the the application generally to do so. They provided provided Google Google with with specific specific URLs URLs from from which which the the generally defendants were selling selling the GW1000 inviolation violation of of the Court's Court’s orders. Google defendants GW1000 in voluntarily blocked This is is referred referred to to as as "taking “taking voluntarily blocked 345 345 websites from its search results. This down” websites. down" websites. [72] [72] However, the the process processwas waswholly wholly unsatisfactory unsatisfactory from from the the plaintiffs' plaintiffs’ whole host of new websites perspective. In place of the the de-indexed websites, aa whole rankings to Websites can can be be generated generated automatically, automatically, moved up the rankings to take their place. Websites resulting in an endless game game of of "whac-a-mole" “whac-a-mole” with with the the plaintiffs plaintiffs identifying identifying new resulting Google deleting deleting them. The The plaintiffs plaintiffs argue that that any scheme that depends URLs and Google is ineffective. ineffective. on the deletion of individual URLs is [73] [73] The insufficiency insufficiency of the the voluntary voluntary take-down of specific websites was Regional Court Court of of Paris Paris in in the the unreported unreported decision decision Trib gr inst recognized by the Regional Paris, 6 November November 2013, Max Mosely v. Google France SARL SARL and Google Inc.[Max Pads, 2014 BCSC 1063 (CanLII) (CanLII) of that that out-of-court out-of-court remedy; failed to avail themselves of 20 -Case 5:17-cv-04207 Document-- 20 1 Filed 07/24/17 Page 34 of 143 Equustek Solutions Inc. v. Jack Page 20 Mosely]. Mosely had been been surreptitiously surreptitiously videotaped by the News of of the the World while while activity with published the engaging in sexual sexual activity with several several partners. partners. The newspaper published found guilty guilty and ordered to cease publishing publishing the the newspaper was found the images. However, the images images remained remained widely widely available available by by searching searching through through Google Images. [74] [74] Mosely asked Google to to stop stop indexing indexing the pictures pictures with reference to specific He made mademany many such such requests requests and and Google Google honoured honoured all all of of the the requests requests but URLs. He images continued continued to be indexed through through new URLs. After After two two years of of this this the images prevent the images images from from being indexed at all. process, Mosely asked Google to prevent refused and Mosely applied for for an injunction injunction and Google refused and damages. damages. The Court was impossible impossible for for the the plaintiff plaintiff to have his his right right enforced by by using using observed that itit was only the procedures made available by Google (English (English translation translation of Max Moselyat Mosely at only the procedures 10). [75] [75] The inadequacy of this this approach in the present present matter matter is heightened heightened by Google’s removal removal of of specific specific URLs URLs from from only only those those searches searches initiated initiated through through Google's – aa fact came to to the the plaintiffs' plaintiffs’ attention attention only only after after cross-examining cross-examining Google.ca — fact that that came Smith on his his affidavit As aa result, result, the the defendants' defendants’ blocked blocked Mr. Smith affidavit on on May May 21, 2013. 2013. As searches are are conducted conducted from any country country other websites appear when searches other than than Canada, Canada, search is is conducted conducted within within Canada using using a Google Google website website other other than than or when a search www.google.ca. [76] [76] The majority majority of GW1000 sales occur occur outside outside Canada. Thus, quite quite apart apart from from GW1000 sales Canada. Thus, iterations, the the practical problem of endless website iterations, the option Google proposes is equivalent to the order now sought sought which which would not equivalent would compel Google to remove the defendants’ websites websites from defendants' from all all search search results results generated generated by any of of Google’s Google's websites worldwide. I therefore conclude conclude that the plaintiffs plaintiffs do court remedy worldwide. do not not have have an out of court to them. available to 2014 BCSC 1063 (CanLII) (CanLII) made others others available available on on its its website. In In aa French French criminal criminal proceeding, proceeding, images and made 21 -Case 5:17-cv-04207 Document-- 21 1 Filed 07/24/17 Page 35 of 143 Equustek Solutions Inc. v. Jack Page 21 (ii) Does Does Google have a strongerconnection connectionto toCalifornia? California? (ii) Google have a stronger Google a Delaware companythat thatisisregistered registeredand andhas hasits its head head office office in [77] Google is is a Delaware company of aa person person within within aa state state is is aastrong strong connecting connecting factor factor justifying justifying the residence of assumption of jurisdiction assumption jurisdictionover overthat thatperson. person. Residence Residence for for aa legal legal person such such as as a corporation is established of the CJPTA only if: corporation established under under s. 7 of (a) the the corporation has or is required by registered office by law to have a registered in British Columbia, (b) pursuant to law, it (i) address in in British Columbia at which (i) has registered an address process may be served generally, or (ii) in British Columbia upon whom (ii) has nominated an agent in process may be served served generally, generally, (c) it has a place place of of business business in British Columbia, Columbia, or (d) its central management is exercised exercised in in British British Columbia. management is None these subsectionsapply applytotoGoogle GoogleininBritish BritishColumbia, Columbia, but but all all pertain pertain [78] None of of these subsections its head in California. California. Google’s Google's internet intemet search search services services are are said said to to “operate "operate out outof” of its office. I accept that Google has a strongpresence presenceininand andconnection connection to toCalifornia. California. [79] I accept that Google has a strong question is is "which “which forum But the the question forum is is more more appropriate?” appropriate?" not not “where "where does does Google reside?” As observed in Van Breda at para. 109, the reside?" As the the Supreme Supreme Court Court of of Canada Canada observed 109, the should not exercise its discretion in favour because itit finds finds that Court should favour of a stay solely because forums exist in other states: comparable forums [109] ...… It is not a matter flippinga acoin. coin.AAcourt courthearing hearingan anapplication application It is not a matter ofof flipping must find that a forum exists that is in a better for a stay of proceedings must position position to dispose fairly fairly and efficiently efficiently of of the litigation. litigation. But But the the court must be mindful mindful that that jurisdiction jurisdictionmay may sometimes sometimes be established on a rather low conflicts rules. Forum non conveniens may play an threshold under the conflicts important role in identifying identifying aa forum that that is is clearly clearly more appropriate for disposing disposing of of the the litigation litigation and and thus thus ensuring ensuring fairness fairnessto tothe the parties parties and and aa more efficient process process for resolving their dispute. 2014 BCSC 1063 (CanLII) (CanLII) California. The CJPTA, like the common law itit codified, recognizes that the ordinary ordinary 22 -Case 5:17-cv-04207 Document-- 22 1 Filed 07/24/17 Page 36 of 143 Equustek Solutions Inc. v. Jack Page 22 [80] The Thefactors factors I must consider in deciding whether [80] whether California is the more appropriate forum forum in which to hear this this application include include those those set out out in s. 11(2) of 11 (2) A court, in deciding the question question of whether whether itit or aa court court outside British Columbia is the more appropriate forum in which to to hear hear aa proceeding, must consider the circumstances circumstances relevant relevant to the proceeding, proceeding, including including (a) the comparative convenience and expense for the parties parties to the proceeding and for their witnesses, witnesses, in in litigating litigating in the court or in any alternative forum, alternative (b) the law to be applied to to issues in the proceeding, (c) the desirability desirability of avoiding multiplicity multiplicity of of legal legal proceedings, (d) the desirability of avoiding conflicting decisions in different courts, (e) the enforcement of an eventual judgment, and (f) the fair and efficient efficient working working of of the the Canadian Canadian legal legal system system as as a whole. [81] I will I willaddress address each of these factors factors in in turn. turn. [81] (a) (a) Comparative convenience Comparative convenience and and expense expense This factorisisofoflimited limitedsignificance significance since since "the “the proceeding" proceeding” in [82] This factor in this this case case is is a injunction. Google has already incurred the expense single application for an interim injunction. of argument and appearance here. I consider it nonetheless nonetheless because it could could still be a factor with respect to enforcement enforcement if I grant the order sought. This factor encompassesthe theCourt's Court’sconcern concernfor forprotecting protecting the the respondent respondent [83] This factor encompasses inconvenient litigation. Google is a highly sophisticated entity with from unfairly unfairly inconvenient annual revenues revenues of $50 billion and 54,000 employees worldwide. Because Because of the annual nature of its business, Google often finds emergent nature finds itself at the the cutting cutting edge of legal issues in many different different fields of law all over over the the world, world, including including in the the areas of result Google has an indefamation, copyright, copyright, privacy and competition law. As a result house legal department of 700 people, including dedicated product counsel, national and regional counsel, and litigation counsel. 2014 BCSC 1063 (CanLII) (CanLII) CJPTA: the CJPTA: 23 -Case 5:17-cv-04207 Document-- 23 1 Filed 07/24/17 Page 37 of 143 Equustek Solutions Inc. v. Jack [84] Page 23 In contrast, contrast, the primary corporate plaintiff plaintiff is a small small British British Columbia which is is incurring incurring significant significant financial defendants’ company which financial losses losses due due to to the the defendants' (b) (b) The be applied The law law to to be applied to to issues issues in in the the proceeding proceeding This a neutralfactor; factor;inineither eitherforum forumlocal locallaw lawwould would apply. apply. Google Google [85] This is is a neutral that theft theft of of intellectual intellectual property rights rights would acknowledges that would be actionable in me of of the the applicable applicable law law in in California California California, but I have no evidence before me governing the granting granting of injunctions injunctions against non-parties. governing (c) (c) The desirability desirability of avoiding multiplicity proceedings The of avoiding multiplicity of of proceedings The plaintiffs’ applicationfor forananinterim interiminjunction injunction against againstGoogle Google is is founded founded [86] The plaintiffs' application on the the plaintiffs' plaintiffs’ actions defendants and the the Court's Court’s inherent inherent jurisdiction jurisdiction on actions against against the the defendants to issue orders to to protect protect the the integrity integrityof ofits itsown ownprocess, process,as asrecognized recognizedin ins. s. 39(1) 39(1) of and Equity Equity Act, R.S.B.C. R.S.B.C. 1996, 1996,c.c.253. 253.The Theplaintiffs plaintiffs seek seekthe the injunction injunction to the Law and prevent the the defendants defendants from from continued continued and and flagrant flagrant breaches breaches of of this this Court's Court’s orders orders prevent in the underlying underlying action. Setting aside themoment momentthe thequestion questionofofwhether whetherthis thisapplication application could could be [87] Setting aside forfor the made in in California California without without the the underlying underlying action action to to support support it, it would would at aa minimum minimum made plaintiffs to require the plaintiffs to commence commence a second proceeding in California. This factor favours British Columbia. therefore favours (d) (d) The desirability avoiding conflicting The desirability of of avoiding conflicting decisions decisions in in different different courts. courts. This factor littleassistance assistanceon onthis thisapplication applicationas asthere there is is aasingle single issue, issue, [88] This factor is is ofof little whether the injunction injunction should is unlikely unlikely to be considered in both whether should be granted, which is courts. (e) (e) Fair and and efficient efficient working working of Fair of the the Canadian Canadian legal legal system system This factor littleassistance assistanceon onthe the application application before before me. [89] This factor isis ofoflittle 2014 BCSC 1063 (CanLII) (CanLII) conduct. I find this this factor conduct. factor favours favours British British Columbia Columbia as the the more appropriate forum. 24 -Case 5:17-cv-04207 Document-- 24 1 Filed 07/24/17 Page 38 of 143 Equustek Solutions Inc. v. Jack (f) (f) [90] [90] Page 24 The The enforcement enforcement of of an an eventual eventual judgment judgment This ground upon which This is the main ground which Google asserts that California is the more outside of British Columbia? [91] [91] Google raises raises aa good goodpoint. point. Traditionally, Traditionally, courts courts have have not notgranted granted injunctive injunctive who reside reside outside outside the the jurisdiction. jurisdiction. In Barrick Gold at relief against defendants who 74, the the Ontario Ontario Court Court of of Appeal Appealexplained explained this this general general rule rule by by quoting quoting from from para. 74, Sharpe’s text text Injunctions and Specific Specific Performance: Performance: Robert J. Sharpe's Claims for injunctions against foreign parties present jurisdictional constraints which are not encountered in the case of claims for money judgments. In In the case of a money claim, the courts need not limit assumed jurisdiction to assumed cases where enforceability enforceability is ensured. Equity, however, acts in personam and the effectiveness of an equitable equitable decree depends depends upon upon the control which may be exercised over the person of the defendant. If the defendant is physically present, it will be possible to require him or her to do, or permit, acts outside the jurisdiction. The courts have, however, conscientiously which cannot be enforced. The result is that the avoided making orders which courts are reluctant to grant injunctions against parties not within the jurisdiction and the practical import of rules permitting permitting service ex juris in respect of injunction claims is necessarily limited. Rules of court are typically limited to cases where it is sought to restrain the defendant from doing anything within the jurisdiction. As a practical matter the defendant "who is doing anything within the jurisdiction" jurisdiction" will usually be physically present within original; underlining the jurisdiction to allow ordinary service. [Italics in original; added.] [92] On this basis the Court of Appeal in United Services Funds (Trustees of) v. Richardson Greenshields of Canada Ltd. (1988), 23 B.C.L.R. (2d) 1, 1988 1988 CanLII CanLII Richardson 2960 (C.A.) (C.A.)held heldthat thataacourt courtshould should not not grant grant an anorder ordercompelling compelling an anout-of-country out-of-country 2960 individual to for discovery. individual to attend for examination for [93] [93] However, exceptions to the However, there are exceptions the general general rule. rule. For example, in Barrick granted aa permanent permanent injunction injunction against aa British British Gold the Ontario Court of Appeal granted Columbia resident in a defamation proceeding. [94] [94] An injunction injunction is remedy and and is is enforced enforced through through the the courts' courts’ An is an an equitable equitable remedy and imprisonment. imprisonment. contempt power. Generally, that that power power is is exercised exercised through through fines fines and contempt 2014 BCSC 1063 (CanLII) appropriate forum. forum. How, Google asks, can this Court force force Google to to take steps 25 -Case 5:17-cv-04207 Document-- 25 1 Filed 07/24/17 Page 39 of 143 Equustek Solutions Inc. v. Jack Page 25 penalties are are more more easily easily invoked invoked when when aaperson person resides resides within within the the court's court’s These penalties jurisdiction so his assets be "seized". “seized”. jurisdiction so that that either either the the person or or his assets can can be not the only only remedies available to to the the Court. In Bea v. The But these these are not Owners, Strata Plan LMS2138, 2014 2014 BCSC BCSC826, 826,Grauer GrauerJ.J.cites citeswith with approval approval the the Ovviers, following words following words of of the the Chief Chief Justice Justice of of the the Supreme Supreme Court Court of Newfoundland Newfoundland and Labrador: The law of contempt is found found in the the development development of the common law. That law is always evolving. evolving. The state of its development is not frozen at any particular judicial history. particular date in judicial history. So So also, with respect to the types of penalty which a court may may employ to to vindicate its contempt power. Differing penalties may be be creatively creatively employed, employed, either either singly singly or or in in combination, combination, in new new situations situations exercise of the contempt power. to achieve the purposes behind the exercise [96] [96] For example, this this court may dismiss or refuse proceedings brought brought by refuse to hear proceedings violating a court order: Breberin v. Santos, 2013 BCCA 385 at a party who is violating Schmidt v. Wood, Wood, 2012 ABCA 235 at para. 5. para. 14; Schmidtv. [97] [97] barring a person in contempt contempt from making use of the Court’s process process While barring the Court's be aa smaller smaller stick stick than than imprisonment, imprisonment, it is nonetheless of enforcement enforcement may be nonetheless a means of particularly so when a non-resident non-resident corporation corporation carries of some significance. That is particularly on business business in British courts. British Columbia Columbia and and may be sued or wish to sue in these courts. Although Google's Google’s contracts contracts with Although with advertisers advertisers in in British BritishColumbia Columbia are are by the the choice of provisions to laws provisions to be be determined determined in California, California, other other causes of action in defamation tort could or tort could well well arise in British British Columbia Columbia (see (see for example Trkulja v. Google (No 5), VSC533, 533,an anAustralian Australian defamation defamationcase casewhich which raised raisedissues issues of of whether whether [2012] VSC “publishes” the Google "publishes" the material displayed on its search engines). (iii) AnAn order madeininCalifornia Californiacan canbe be enforced enforced (ii:) order made [98] [98] Google argues that the the plaintiffs plaintiffs should should apply apply in in California California because because a California court California court order order can can be be enforced enforced against against Google Google in in that that state. state. I accept that that a British Columbia court California court court order is easier to enforce in California than a British related to to the the assertion assertion that that California California is therefore therefore a better better forum forum is order. However, related 2014 BCSC 1063 (CanLII) (CanLII) [95] [95] 26 -Case 5:17-cv-04207 Document-- 26 1 Filed 07/24/17 Page 40 of 143 Equustek Solutions Inc. v. Jack Page 26 California court court could could or would would order the the interlocutory interlocutory relief the question of whether whether aa California plaintiffs. sought by the plaintiffs. Google asserts that the plaintiffs plaintiffs can make make this this application application in California. However, Google Google bears bears the the burden burden of of proof proof at this stage of the analysis analysis and has provided no support support for for that that proposition. proposition. Indeed, Indeed, neither neither party alluded alluded to or Although I need go go no no further further given where the attempted to prove California law. Although burden of proof lies, Canadian Canadianjurisprudence jurisprudence offers offers insight insight into into the the complexity complexity of of this this question. [100] Assuming the plaintiffs plaintiffs could file an originating originating application in California, they [100] would be asking asking for for aa standalone standalone interim interim injunction injunction with with no no underlying underlying substantive substantive would followed the relief sought sought in in California. California. The The Supreme Supreme Court Court of of Canada has followed the approach by the UK UK House House of of Lords Lords and and determined determinedthat that an aninterlocutory interlocutory injunction injunction can taken by be issued in such circumstances, but only only if two conditions conditions are satisfied: Employees Canadian Canadian Pacific Pacific System Brotherhood of Maintenance of Way Employees Canadian Pacific Pacific Ltd., [1996] 2 S.C.R. S.C.R. 495. 495.First, First,the theissuing issuing court court Federation v. Canadian jurisdiction simpliciter, and second, second, the the substantive substantive underlying underlying dispute dispute must have jurisdiction must be a cause cause of of action action recognized recognized by by the the issuing issuing court. As II noted, noted, II have have nothing nothing must to say whether whether California courts courts have before me to have adopted the same approach. [101] Furthermore, Google’s assertion assertion that that the the order order sought sought in in this this court court could could not not [101] Furthermore, Google's in California ignores ignores the the potential potential for for the plaintiffs plaintiffs to sue on aa British British be enforced in court order in California. That is is aa distinct distinct legal step from applying applying for a Columbia court standalone order in California, which Google contends is the appropriate appropriate procedure. standalone [102] Google submits submits that that the the plaintiffs plaintiffs cannot cannot enforce enforce aaBritish British Columbia Columbiainjunction injunction [102] Technologies Corp. Corp. v. McGraw-Hill in California. Google relies on Ingenium Technologies 2005 BCSC BCSC465 465atatpara. para.28, 28,ininwhich whichPitfield PitfieldJ., J.,on onaawithout without notice notice Companies, 2005 “[a]n injunction injunction is judgment or order on which application stated that "[a]n is not not a form of judgment [the plaintiff] plaintiff] could [the could realistically realistically sue sue for for recognition recognitionand and enforcement enforcement on a timely basis, if such judgment basis, if it it would would be be able able to to sue sue on on such judgment at at all”. all". I conclude conclude from from a review of 2014 BCSC 1063 (CanLII) (CanLII) [99] [99] 27 -Case 5:17-cv-04207 Document-- 27 1 Filed 07/24/17 Page 41 of 143 Equustek Solutions Inc. v. Jack Page 27 case law law that that there there are are situations situations in which which a party can sue for enforcement the case enforcement of a law is is evolving evolving in in that direction. direction. foreign interlocutory interlocutory order. order. Certainly, Certainly, the common law (3d) 500, 500, 269 269 D.L.R. D.L.R. (4th) (4th) 679 679 (C.A.). (C.A.). The The Insurance Co. Ltd. (Re) (2006), 80 O.R. (3d) addressed the the trend trend towards towards enforcing enforcing foreign nonBritish Columbia Columbia Court Court of Appeal addressed judgments in Minera Minera Aquiline Aquiline Argentina SA v. IMA IMA Exploration Exploration Inc., 2007 monetary judgments BCCA 319 at para. 92: [92] … academicopinion opinion is is consistent consistent with the general trend trend of of private ... academic international international law. law. The The Supreme Court of of Canada Canada has recognized that the law has evolved to allow allow courts to deal deal with with disputes disputes arising in an increasingly interdependent interdependent global global economy. In its its recent jurisprudence, jurisprudence, the the Supreme Supreme Court reasoned that, that, in in the the proper proper case, case, the the limits limits of of the courts’ Court has has reasoned the courts' jurisdiction should jurisdiction should be be expanded, expanded, not narrowed. In Pro Swing Inc. (at paras. 78-79), 78-79),McLachlin McLachlin C.J.C. C.J.C.(in (indissent, dissent,but but not not on on this this issue) issue) referred to Morguard Investments Ltd. Ltd. v. v. De De Savoye, [1990] 3 S.C.R. 1077 at 1098, Hunt T&N plc, plc, [1993] 4 S.C.R. 289 at 321-322, and Beals v. Saldanha, [2003] 3 v. T&N S.C.R. 416atatpara. para.27, 27,for forthe therationale rationalefor forextending extending the thelimits limits of of the the court's court’s S.C.R. 416 jurisdiction to jurisdiction to enforce enforce foreign foreign non-monetary non-monetary judgments. judgments. She She commented commented that exclude the the courts courts from from enforcing foreign comity, order and fairness do not exclude non-monetary judgments, and in in the the context context of modern modern private private international international law, may may require it. The The majority majority of the Court in Pro Swing Inc. concluded that was not the right case case to to extend the the jurisdiction, jurisdiction, but all of the justices agreed that the the "time “time is that is ripe ripe to to review review the the traditional traditional common common law law rule” rule" (para. (para. 15) in light of of changing changing global global commercial commercial realities. light that Google Google objects objects to to British British Columbia Columbia retaining retaining jurisdiction jurisdiction [104] Finally, Finally, I note that the order order sought sought would would require Google Google to to take take steps steps in in relation relation to to its because the That objection objection is is not not resolved resolved by by "going “going to to California". California”. If the websites worldwide. That involves worldwide order involves worldwide relief, relief, aa California court court will will be be no no more appropriate a forum than forum than British British Columbia Columbia to to make make such such an an order. Even if the order can be construed more narrowly narrowly as requiring the construed requiring Google Google to to take steps at the site where the computers controlling computers controlling the the search search programs programs are are located, located, Google has not established those computers computers are located in California, or that only be that those that they they can only reprogrammed there. [105] As the Court of Appeal observed in Olney v. Rainville, 2009 BCCA 380 at 27,"What “What isisessential essential is is that that the the taking taking of of jurisdiction jurisdiction be consistent consistent with order para. 27, 2014 BCSC 1063 (CanLII) (CanLII) Court of of Appeal Appeal enforced enforced aa foreign foreign interlocutory interlocutory order in Cavell [103] The Ontario Court 28 -Case 5:17-cv-04207 Document-- 28 1 Filed 07/24/17 Page 42 of 143 Equustek Solutions Inc. v. Jack Page 28 and fairness." fairness.” I conclude conclude on this this issue and issue that that Google has not established that forum than than British British Columbia for for adjudicating adjudicati ng the California is a more appropriate forum 3. 3. Should the the order sought be Should order sought be granted? granted? [106] Having that the Court Court has has jurisdiction jurisdiction over Google and that [106] Having determined that California is a more appropriate forum, Google has not established that that California forum, we come to matter: Should Should the the injunction injunction be be granted? granted? the heart of the the matter: [107] Google asserts that [107] that the the Court does not not have have the authority authority to to make make an order of sought. In issue is is whether Court has has "subject “subject matter the kind sought. In issue whether the the Court matter competence”. competence". The plaintiffs and plaintiffs and Google Google agree agree that that the the type type of of order order II am asked to make has never Canadian court. court. before been made by aa Canadian [108] Google asserts that the Court lacks subject subject matter competence for two [108] two main reasons: first, first, because because the the order order is is sought sought against a non-party; non-party; second, because it reasons: would require worldwide effect. The latter latter objection objection would require the Court Court to make an order with worldwide territorial competence may sound like an issue more properly addressed at the territorial competence stage the question question of of whether whether the the Court Court has has territorial territorial of the analysis. analysis. However, the to hear the the application application because because of of its its connection connection to to the the persons persons or or facts competence to involved is distinct involved distinct from from the the question question of of whether, whether, in in the the words words of of s. 39 of the Law and Equity Act, it is “just "just or or convenient” convenient"that thatthe the order order sought soughtshould shouldbe be made made to enjoin enjoin or mandate the the particular particular conduct. conduct. (a) (a) Can an an order order be against a Can be made made against a non-party? non-party? [109] Google submits submits that Court does does not not have have authority authority to [109] that as a general rule aa Court an order order against against aa non-party non-party who who owes owes no no duty duty to to the the plaintiff. plaintiff. Google make an are two two exceptions exceptions to to that that rule, but argues that neither acknowledges there are this case. exception applies to this [110] The first exception non-party with knowledge [110] exception arises when when a non-party knowledge of a court order Court’s authority. authority. This exception deliberately disobeys it and and thereby thereby deprecates the Court's 2014 BCSC 1063 (CanLII) (CanLII) plaintiffs' application for for an an interim interim injunction injunction against against Google. plaintiffs’ application 29 -Case 5:17-cv-04207 Document-- 29 1 Filed 07/24/17 Page 43 of 143 Equustek Solutions Inc. v. Jack Page 29 Lindley L.J. in Seavterd Seaward v. Paterson, [1897] 1 Ch. was described by Lindley Ch. 545 (C.A.) at A motion to commit a man man for for breach breach of of an aninjunction, injunction, which which is technically wrong unless he is bound by the injunction, injunction, is one thing; thing; and a motion to man for contempt of Court, not commit a man not because he is bound by the injunction injunction by by being being aa party party to to the the cause, cause, but but because he is conducting himself so as to obstruct the course of justice, is another and totally different thing. In case the the party party who who is is bound bound by by the injunction injunction is proceeded against the one case for the purpose of enforcing the order of the Court for the benefit of the person who got it. In the other case case the Court Court will will not allow its process to be set at naught and treated with contempt. In the one case case the person person who is interested in enforcing the order enforces it for his own benefit; benefit; in the other case, if the order of the Court has been been contumaciously contumaciously set at naught the case, offender cannot square it with with the person who has obtained the order and save himself from the consequences consequences of of his act. The The distinction distinction between the two kinds kinds of of contempt is is perfectly perfectly well well known, known, although although in insome some cases cases there may be be aa little little difficulty difficulty in in saying saying on on which which side side of of the the line line aa case case falls. As to jurisdiction, ifif the stated, notwithstanding notwithstanding the jurisdiction, the facts facts are are of of the character I have stated, the arguments of Mr. Seward Seward Brice, Brice, II cannot cannot bring bring myself to entertain any difficulty difficulty about it. this "contempt" “contempt” exception, the Court's Court’s objective objective is is not not to to further further the [111] Under this exception, the the plaintiffs, plaintiffs, but but to to uphold uphold its its authority. authority. interests of the [112] The plaintiffs argue that after after Google Google received received notice notice of of this this Court's Court’s orders orders The plaintiffs argue that defendants, it should the defendants’ against the defendants, should not not have have allowed allowed the defendants' websites websites to to be be displayed in search results. results. The plaintiffs plaintiffs argue that that this this amounts amounts to aiding displayed in Google’s Google's search and abetting abetting the the defendants' defendants’ contempt contempt and and is comparable to Greenpeace Canada v. and MacMillan CanLII 943 (C.A.), (C.A.), aff’d affd MacMillan Bloedel Bloedel Ltd. Ltd. (1994), 96 B.C.L.R. (2d) 201, 1994 CanLII MacMillan Bloedel Bloedel Ltd. Ltd. v Simpson, [1996] 2 S.C.R. 1048. 1048.In In that that case case the the Court Court MacMillan an injunction injunction preventing all persons persons having having notice notice of the granted an preventing the the defendants and all physically obstructing logging operations. order from physically obstructing the the plaintiff’s plaintiffs logging operations. Logging protestors who defendants protested protested that the protestors who were were not not named named as defendants the order was J.A. rejected rejected that that notion, notion, citing citing with with approval 44 the the overbroad. Macfarlane J.A. approval at at para. 44 following words text Injunctions and Specific Performance: following words from from Robert Robert J. Sharpe’s Sharpe's text Performance: ItIt cannot be objected that the the net net of of liability liability is cast too wide where where the the plaintiff plaintiff is able to show that the non-party has deliberately deliberately agreed to flout flout the order order at the instigation instigation of of the the defendant. defendant. However, the court must be cautious not to hold in contempt contempt a party party who acts independently independently of of the the defendant, defendant, and who may exercise exercise aa right right distinct distinct from from that that of of the the defendant. defendant. Such Such a person has 2014 BCSC 1063 (CanLII) (CanLII) 555-556: 30 -Case 5:17-cv-04207 Document-- 30 1 Filed 07/24/17 Page 44 of 143 Equustek Solutions Inc. v. Jack Page 30 not yet had his day in court and should not be bound by an order made in an action to which he was not a party. [Emphasis added.] Court’s orders and assist the defendants. While While Google's Google’s search search engines engines facilitate facilitate Court's the defendants' defendants’ ongoing ongoing breach by leading websites, the breach by leading searchers searchers to to the the defendants’ defendants' websites, Google operates its search engines in the ordinary course of its business, independently of the defendants defendants and not in order to assist them independently them in their breach. [114] The plaintiffs’ plaintiffs' authorities involve [114] The involve quite different facts. In MacMillan Bloedel, to support the those held in contempt had knowingly violated the court order to defendant’s blockade of the logging road. In Glazer v. Union Union Contractors Ltd. and defendant's Thornton (1960), 25 D.L.R. (2d) 653, 33 W.W.R. 145 (B.C.S.C.) the Court had appointed a receiver over money owing to a company by the Government. Government. A government minister, aware of the order but not a party to the proceeding, was government funds owing to the company to be paid to the committed for contempt for causing funds company’s order order rather rather than than to to the the receiver. receiver. In Attorney General v. Punch Ltd., company's [2002] UKHL 50, [2003] 1 All ER 289, an order prohibited the publication of certain information that the non-party non-party published in its magazine when on notice of the order. In all of these cases, the non-parties found in contempt had engaged in conduct calculated to directly frustrate Google’s search search results results are are not not of of the the calculated frustrate a court order. Google's same ilk. [115] The and abetted abetted the the defendants' defendants’ contempt contempt of of the the [115] The argument argument that that Google Google aided aided and sale of of advertising space to existing court orders is stronger in relation to Google’s Google's sale when Google Google received received notice notice of of this this Court’s the defendants. But as I noted earlier, when Court's should not continue orders it agreed that it should continue to do this. I accept that Google only continued to do so up to the commencement commencement of this hearing due to to an administrative administrative continued oversight. [116] The [116] The second exception to the general rule rule that a Court will not make orders against a non-party non-party extends extends to orders made against non-parties non-parties to aid in the the fact finding necessary to the administration of justice. justice. Examples of orders made against 2014 BCSC 1063 (CanLII) (CanLII) [113] There [113] There is no evidence that Google acted in this case to deliberately flout this 31 -Case 5:17-cv-04207 Document-- 31 1 Filed 07/24/17 Page 45 of 143 Equustek Solutions Inc. v. Jack Page 31 non-parties who have subpoenas are issued to non-parties have no obligation to to the the plaintiff plaintiff abound: abound: subpoenas obtain evidence at trial under Rule Rule 12-5(31)-(39); documents and oral evidence may [117] In addition, under the Nomich Norwich Pharmacal Pharmacal Co. and Others v. Customs and [117] [Nomich Excise Commissioners, [1974] A.C. 133, [1973] 2 All ER 943 (H.L.) [Norwich Pharmacal] line of authority, authority, courts can make orders against non-parties even before Pharmacal] an action is commenced. The remedy of pre-action discovery was articulated articulated in Norwich Pharmacal Pharmacal by by Lord Reed at 175: Nomich [I]f through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information information ought ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration. Norwich Pharmacal Pharmacal has been adopted as part of the law in British Columbia: Nomich Kenney v. v. Loet4en Loewen (1999), 64 B.C.L.R. (3d) 346, 1999 CanLII 6110 (S.C.), Procon Kenney Mining McNeil, Bonnar Bonner et al., 2007 BCSC 454 [Procon Mining and Tunnelling Tunnelling Ltd. et al. v. McNeil, Publishing Ltd., 2011 BCSC 1503. Mining], and Pierce v. Canjex Publishing [118] Google argues that the Norvtich Norwich Pharmacal line of authority goes goes no further [118] non-party to provide information and is only imposed in than compelling a non-party exceptional cases with due concern for the the non-party non-party against whom whom the the order is AG v. Ventra Group Co., 2009 ONCA 619 [Ventra] sought: GEA Group AG [Ventre] at para. 85. [119] I do not accept Google’s authority to make [119] Google's submission that the Court only has authority non-party in in relation to contempt or or to further further fact finding an order against a non-party necessary to effect justice. Lack of precedent should should not not be confused confused with lack of subject matter competence. [120] Lord Woolf M.R. described this distinction in Broadmoor Hospital Authority & [120] Anor v. R, [1999] EWCA Civ 3039, [2000] QB 775 at para. 21: 2014 BCSC 1063 (CanLII) (CanLII) advance of trial under also be obtained in advance under Rules Rules 7-1(18) and 7-5. 32 -Case 5:17-cv-04207 Document-- 32 1 Filed 07/24/17 Page 46 of 143 Page 32 [21] The powers of courts with equitable jurisdiction to grant injunctions Injunctions are are, subject to any relevant statutory restrictions, unlimited. Injunctions granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. Unfortunately there have sometimes been made observations by judges that tend to confuse questions of jurisdiction or of powers with questions of discretions or of practice. The preferable analysis involves involves a recognition of the great width of equitable powers, an historical appraisal of the categories of injunctions that have been established and an acceptance that pursuant to general equitable principles injunctions may issue in new categories when this this course appears appropriate. [121] The inherent jurisdiction to maintain the rule of law and to control The Court has inherent its own process. The The power to grant injunctions injunctions is a broad one and is confirmed confirmed by which it Injunctions may be issued in "in all cases in which s. 39 of the Law and Equity Act. Injunctions convenient that the order should appears to the court to be just or convenient should be made ... on terms and and conditions conditions the the court court thinks thinks just": just”: MacMillan MacMillan Bloedel, [1996] 2 S.C.R. 1048 terms at para. 15. [122] The The Court’s Court's willingness willingness to to use use its its equitable equitable jurisdiction jurisdiction against against non-parties non-parties is injunctions. This line of authority is is particularly particularly evident in the the development development of Mareva injunctions. helpful because Mareva injunctions injunctions also involve involve orders against non-parties who helpful reside outside of the province. injunction in Canada in [123] Madam Justice Newbury Newbury granted the the first Mareva injunction Mooney v. Orr Orr (1994), 98 B.C.L.R. (2d) 318 (S.C.) [Mooney No. 1] 1] on an ex parte Mooneyv. [Mooney No. granting such relief, she application. After referring to English and Australian cases granting observed at para. 11: The reasons for extending extending Mareva Mareva injunctions to apply apply to foreign assets are valid in British Columbia no less than in England and Australia - the notion that a court should not permit a defendant defendant to take action designed designed to frustrate existing or subsequent orders of the court, and the practical consideration that in this day of instant communication and and paperless paperless cross-border cross-border transfers, the courts must, in order to preserve the effectiveness of their judgments, adapt adapt to new new circumstances. circumstances. months later [124] Madam Justice Huddart Huddart continued continued the the injunction injunction in a hearing hearing two months with both parties present: Mooney v. Orr (1994), 100 B.C.L.R. (2d) 335 (S.C.) 2014 BCSC 1063 (CanLII) (CanLII) Equustek Solutions Inc. v. Jack 33 Case 5:17-cv-04207 Document-- 33 1 --Filed 07/24/17 Page 47 of 143 Equustek Solutions Inc. v. Jack Page 33 [Mooney No. 2]. She agreed that that Mareva orders were aa necessary necessary development, development, Whether this this extension of existing principles Whether principles is is seen seen as an expansion of the exercise of discretion given given by the Law and Equity Act or inherent in the court's ability ability to to control control its itsprocess, process, II am am of of the the view that such a discretion must be exercised whenever itit is required to ensure the effective administration of justice in in British British Columbia.. Columbia.. [125] In In England, where Mareva injunctions injunctions were such orders were first first made made in in 1975, 1975, such originally restricted English were originally restricted to to assets assets within withinEngland. England. In In the the late late 1980s the English courts relaxed restrictions to courts relaxed those restrictions to apply apply to to the the defendants’ defendants' assets wherever wherever they ancillary orders were extended to to non-parties non-parties resident resident in in foreign were situated, and ancillary countries. Non-parties could could not not only only be restrained from from dealing dealing with with the the defendants' defendants’ countries. be restrained could also be mandated to take steps to transfer transfer assets to a receiver assets, but could located elsewhere: extra-territorial reach of these [126] The extra-territorial these orders is is evident. evident. Vaughan Black and Babin commented on on the development development of of the the law law in in "Mareva “Mareva Injunctions Injunctions in Edward Babin Territorial Aspects” Canada: Territorial Aspects"(1997) (1997)28 28 Can Can Bus BusLJ IJ 430 430 at 441: these considerations considerations [favouring [favouring the granting of extra-territorial orders] All of these run up against one principal principal objection: the judicial power of all national courts is territorially territorially circumscribed circumscribed and it is is improper for for a court to attempt to exercise its power to affect affect actions actions outside exercise its power to outside the the court’s court's territory. territory. Stated Stated so so broadly, broadly, that limitation limitation must must now now be be seen seen as dated and lacking in general validity, or seems little little validity, or at at least subject to to several several exceptions. There now seems doubt that Canadian courts actually have the power to employ in personam doubt actually orders to enjoin parties to do or refrain from doing doing something anywhere in the world. [Emphasis added.] include non-parties resulted from from the [127] The expansion of Mareva orders to include Courts’ recognition recognition that that Mareva injunctions practical effect effect without without Courts' injunctions would would have no practical involving non-parties. because unscrupulous unscrupulous defendants defendants will will simply simply fail to involving non-parties. That is so because accountants, lawyers lawyers comply with with the the injunction, injunction, whereas whereas the the defendants’ defendants' brokers, accountants, likely to and bankers are less likely to engage in such such conduct. conduct. However, However, as Black & Babin 453, the the rights rights of of non-parties non-parties and the the states states in in which which they they reside must must observed at 453, taken into into account: account: be taken 2014 BCSC 1063 (CanLII) (CanLII) saying at para. 60: saying 34 Case 5:17-cv-04207 Document-- 34 1 --Filed 07/24/17 Page 48 of 143 Equustek Solutions Inc. v. Jack Page 34 [128] The Courts have developed developed protections protections for non-parties [128] non-parties who are not resident presencewithin within this this jurisdiction jurisdiction but in the province, or who may have aa presence but are also number of of jurisdictions jurisdictions outside the territory. territory. In recognition of present or resident in aa number may be be subject subject to to laws laws in inforce force in inthe the foreign foreignjurisdiction jurisdiction the fact that such persons may which forbid included in which forbid compliance compliance with with an an order order made made by this this Court, Court, the the Court Court has included worldwide Mareva injunctions come to to be be known known as as the the "Babanaft" “Babanaft” injunctions terms terms which which have have come “Baltic” provisos. and "Baltic" provisos. [129] Stephen Pitel and Andrew Andrew Valentine Valentine describe describe these these provisos provisos and the [129] rationale behind their in “The "The Evolution Evolution of of their inclusion inclusion in worldwide Mareva injunctions injunctions in Extra-Territorial Mareva JP P Int'l Int’l L L the Extra-Territorial Mareva Injunction Injunction in in Canada: Canada: Three Three Issues” Issues" (2006) (2006) 2 2J 339 at 371-377. Babanaft and Baltic provisos courts do provisos are are intended to ensure ensure that courts exorbitant jurisdiction jurisdiction over not exercise exorbitant over non-parties non-parties situated situated abroad abroad and and are particularly important particularly important in defining defining the the effect of worldwide Mareva injunctions injunctions on with aa presence presence both both inside inside and and outside outside the the local localjurisdiction. jurisdiction. corporate non-parties with [130] The Babanaft proviso [130] proviso states states in in part part that that where where a corporate corporate non-party non-party has has a outside of of the the jurisdiction, jurisdiction, it must presence in and outside must have have notice of the order and the abroad that that would would aid aidin in violation violation of of the the injunction. injunction. ability to restrain activities abroad [131] The Baltic proviso proviso permits corporate non-parties to comply with their foreign [131] obligations as they reasonably perceive them. legal obligations [132] [132] Although Mareva injunctions suit, a Mareva injunctions are are granted granted at the the plaintiff’s plaintiffs suit, order’s primary order's primary function function is is maintaining maintaining the the integrity integrityof ofthe the Court’s Court's process. process. Madam Madam Justice Huddart Speditions Ges.m.b.h v. Jans (1995), 15 Justice Huddart wrote in Grenzservice Speditions at para. 92: B.C.L.R. (3d) 370, 1995 CanLII 2507 (S.C.) at [92] TheThe Mareva Anton Pillar orderswere wereconceived conceivednot notso so much much to Mareva andand Anton Pillar orders protect plaintiffs jurisdiction against plaintiffs as as to to protect the Court’s Court's jurisdiction against defendants defendants bent 2014 BCSC 1063 (CanLII) (CanLII) [T]his practical need to control the actions of non-parties non-parties must, as is the case case with parties, be balanced against such persons’ persons' legitimate interests in privacy and liberty of action (including such rights as they may have acquired by contract), and against the rights of other states to sovereign jurisdiction over persons and activities within their boundaries. 35 Case 5:17-cv-04207 Document-- 35 1 --Filed 07/24/17 Page 49 of 143 Equustek Solutions Inc. v. Jack Page 35 on dissipating or secreting their assets or evidence in order to render inconsequential … inconsequential the the judicial judicialprocess processagainst againstthem. them.... party resident in a foreign jurisdiction in appropriate circumstances. circumstances. The fact that an injunction has not before been made against injunction against an an internet intemet search provider provider such such as carefully, but does not establish that the Court does not Google is reason to tread carefully, make the have subject matter competence. Indeed, the notion that a court may only make orders it has made in the past is anathema anathema to the spirit of the common common law. As Newbury J. observed in Mooney Mooney No. 1 at para. 11: Newbury … the courts courts must, must, in order order to preserve the effectiveness of their judgments, ... the circumstances.Such Such adaptability adaptability has always been, and adapt to new circumstances. continues to be, the genius of the common law. (b) (b) Should II make make this Google? Should this order order against against Google? [134] Having injunction with [134] Having determined that the Court has authority to issue an injunction extra-territorial effect against a non-party where itit is just or convenient convenient to do so, the extra-territorial should II grant grant the the injunction injunction on on the the facts facts of of this case? case? A related question remains: remains: should question is what test should should be applied in making that determination. determination. [135] Google submits that it would [135] would not be just just to make the order sought for four reasons. [136] First, Google says that valuable tool for [136] that it provides an important important and valuable navigating hundreds navigating hundreds of trillions trillions of webpages webpages on the the internet. intemet. Google argues argues it or arbitrate disputes disputes over over content cannot, as a practical matter, monitor content or because of the enormous volume of content; because it cannot determine whether whether enormous volume because content content on on websites websites is is constantly constantly information is inaccurate or lawful; and because changing so even if Google could judgments about the changing could form judgments the content content of sites on its judgments would moments later. index at any given moment, moment, those judgments would be obsolete moments [137] [137] Whether Whether Google is a passive indexer indexer with no control control over content content has has been González, Max Mosely, and Trkulja. the subject of litigation in other jurisdictions: Gonzalez, However, the order sought in the present case would not require Google to monitor However, 2014 BCSC 1063 (CanLII) (CanLII) [133] I conclude conclude that the Court has authority authority to grant an injunction against a non[133] 36 Case 5:17-cv-04207 Document-- 36 1 --Filed 07/24/17 Page 50 of 143 Equustek Solutions Inc. v. Jack Page 36 the content content of of the websites. Rather, Rather, the the order order would would simply simply require require the the defendants’ defendants' websites. all of of the the defendants' defendants’ websites websites from from its its searches. searches. To To put put itit simply, simply, Google to remove all slight expansion on the removal of of individual individual URLs, order is, in many ways, only a slight agreedto todo dovoluntarily. voluntarily. which Google agreed [138] Second, Google submits submits it would unjust to sought because [138] would be unjust to make the order sought de-indexing entire websites without without regard to content of the specific specific URLs would would constitute undue constitute undue censorship. censorship. Google’s Google's employee employee Mr. Smith deposed: not specifically reviewed and identified identified may URLs not may be used for any number of innocent purposes and aa complete complete removal removal could could result result in in possibly numerous being blocked blocked without Google having had had the the opportunity opportunity to review URLs being determine ifif aa departure departure from from its its usual indexing process is them and determine necessary or warranted in in the circumstances. [139] I do not find find this that itit alters [139] this argument argument persuasive. Google acknowledges that search results results to to avoid avoid generating generating links links to to child child pornography “hate speech" speech” search pornography and and "hate recognizes its its corporate corporate responsibility responsibility in this this regard, employing employing 47 47 fullfullwebsites. It recognizes down specific specific websites, time employees worldwide who, who, like Mr. Smith, take down including websites subject Excluding the defendant’s prohibited prohibited including subject to court court order. Excluding the defendant's websites from from search search results results is is in with Google's Google’s approach approach to to blocking blocking websites in keeping keeping with websites subject to court order. [140] Third, that the Court Court should should not make make an an order order that that could could [140] Third, Google argues that because itit would would put Google in in the the impossible impossible situation of affect searches worldwide because something that could require it to being ordered to do something to contravene contravene a law in another jurisdiction. This jurisdiction. This raises raises the the concern concern addressed by the Baltic proviso in Mareva injunctions. [141] Google gives as as an an example example of of such such jurisdictional jurisdictional difficulties difficulties the [141] the case case of two Yahoo! Inc. v. La Ligue Contre Le Racism Racism et et L’Antisemitisme LAntisemitisme [Yahoo]. In In 2000 2000 two groups filed suit in France against Yahoo French anti-racism groups filed a suit Yahoo alleging that Yahoo violated the display of Nazi paraphernalia by violated a French law law prohibiting prohibiting the by permitting permitting The plaintiffs plaintiffs users of its internet internet auction services to display and sell such artifacts. The 2014 BCSC 1063 (CanLII) (CanLII) it is not not a question of blocking blocking what what is being being said, said, but but rather rather who is saying saying it. The 37 -Case 5:17-cv-04207 Document-- 37 1 Filed 07/24/17 Page 51 of 143 Equustek Solutions Inc. v. Jack Page 37 demanded that that Yahoo's Yahoo’s French French subsidiary, subsidiary, Yahoo.fr, Yahoo.fr, remove remove all all hyperlinks hyperlinks to to the demanded containing the offending offending content. content. As in this case, Yahoo parent website (Yahoo.com) containing States. The The French FrenchCourt Court held held that that ititcould could properly properly were located in the United States. jurisdiction because suffered in France and required required Yahoo assert jurisdiction because the the damage damage was suffered “take all measures” to to "dissuade “dissuade and render impossible" impossible” all access via to "take all necessary necessary measures" and render yahoo.com by by intemet internet users users in in France France to to the the Yahoo! Yahoo! intemet internet auction auction service service displaying Nazi artifacts, artifacts, as well as to to block block internet displaying internet users users in France from accessing other onlineNazi Nazi material: material:145 145FFSupp Supp2d 2d1168 1168 (ND (ND Cal Cal 2001) 2001) at 1172. other online [142] [142] Yahoo claimed claimed that that implementing implementing the the order order would would violate violate its its First Amendment rights to could not be enforced in the United rights to freedom freedom of expression expression and therefore therefore could States. The French French Court Court did did not not accept accept that that submission. submission. Yahoo initiated initiated aa suit suit in California against the French plaintiffs, plaintiffs, and obtained a declaratory judgment judgment that the constitutionally unenforceable States, contrary contrary to French orders were constitutionally unenforceable in the the United States, issue of international international comity, comity, the Court the first amendment. Addressing the issue States Courts Courts will will generally generally recognize and enforce enforce foreign reasoned that United States judgments but could could not enforcement of of the judgments not do do so on the the facts facts of of that that case case because enforcement French orders orders would would violate French violate Yahoo’s Yahoo's constitutional constitutionalrights rightsto tofree freespeech: speech:169 169 F Supp 1181 (ND (ND Cal Cal2001) 2001)atat1192-1193. 1192-1193.This Thisdecision decisionwas wasultimately ultimately reversed reversed on 2d 1181 different grounds: different grounds:379 379FF3d 3d1120 1120 (9th (9th Cir Cir2004), 2004), reheard reheard in in433 433 FF 3d 3d 1199 1199 (9th Cir 2006). [143] cautionary note. As with Mareva injunctions, injunctions, courts [143] Yahoo provides a cautionary courts must must be cognizant of potentially potentially compelling compelling a non-party non-party to to take take action action in in aa foreign foreignjurisdiction jurisdiction cognizant would breach the law in that jurisdiction. jurisdiction. That that would That concern concern can can be addressed in injunctions, by appropriate cases, as it is for Mareva injunctions, by inserting inserting a Baltic type proviso, non-party from from compliance compliance with with the the order order ifif to to do do so so would would which would would excuse the non-party breach local laws. [144] In is before this Court and does not suggest that [144] In the present present case, Google is that an requiring it to order requiring to block block the the defendants’ defendants' websites websites would would offend offend California California law, law, or 2014 BCSC 1063 (CanLII) (CanLII) Court lacked lacked jurisdiction jurisdiction over the because its its servers argued that the French Court the matter because 38 Case 5:17-cv-04207 Document-- 38 1 --Filed 07/24/17 Page 52 of 143 Equustek Solutions Inc. v. Jack Page 38 the law of of any state state or or country country from from which a search search could could be be conducted. conducted. indeed the that most most countries countries will will likely recognize intellectual intellectual property Google acknowledges that [145] Fourth, that the the order order sought sought is is too broad. broad. Google submits submits that [145] Fourth, Google argues that if the the injunction injunction is is granted granted itit should should be be limited limited to to Google.ca, Google.ca, the the website designated because no no court court should should make an an order order that that has aa reach reach that that extends extends for Canada, Canada, because around the world. [146] I note again that on the the record before me, me, the the injunction injunction would would compel Google [146] steps in California or the state in in which which its search engine is controlled, controlled, and to take steps would not around the world. That the effect of of the would not therefore therefore direct direct that that steps steps be taken around injunction could injunction couldreach reachbeyond beyondone onestate state is isaa separate separate issue. issue. Even an order mandating or enjoining conduct entirely entirely within British Columbia Columbia may may have such enjoining conduct within British extraterritorial, or even worldwide effect. extraterritorial, [147] [147] For example, aa non-party non-party corporation corporation that warehouses and ships ships goods for a manufacturing company might might be be ordered ordered on on an aninterim interim injunction injunction to defendant manufacturing the defendants' defendants’ goods goodsand andrefrain refrain from from shipping shipping them. them. That That injunction injunction could could freeze the customers around affect orders received from customers around the the world. Could it sensibly sensibly be argued could not grant the injunction injunction because it would that the Court could would have have effects worldwide? The impact impact of of an an injunction injunction on strangers to the suit or the order itself is a worldwide? valid consideration the Court's Court’s jurisdiction jurisdiction to valid consideration in in deciding deciding whether whether to to exercise exercise the to grant grant an an injunction. ItIt does Court’s authority injunction. does not, not, however, however, affect affect the the Court's authority to to make make such such an an order. order. [148] Further, website for for each each country country to which searches [148] Further, although although Google has aa website country default, made within that country default, users users can override that that default default and access other country’s Google even ifif the the defendants' defendants’ websites websites were were country's Google websites. websites. For For example, example, even conducted through through www.google.ca, Canadian Canadian users users can go blocked from searches conducted or www.google.fr www.google.fr and and obtain obtainresults results including including the the defendants' defendants’ to www.google.co.uk or record before me it appears that that to be effective, even within within websites. On the record Canada, Google Google must must block block search search results results on on all all of of its its websites. Furthermore, Furthermore, the Canada, defendants’ sales sales originate originate primarily primarily in in other other countries, countries, so Court’s process process defendants' so the the Court's 2014 BCSC 1063 (CanLII) (CanLII) rights and view the selling selling of pirated products wrong. rights products as a legal wrong. 39 Case 5:17-cv-04207 Document-- 39 1 --Filed 07/24/17 Page 53 of 143 Equustek Solutions Inc. v. Jack Page 39 cannot be protected unless unless the injunction injunction ensures cannot ensures that searchers from any jurisdiction do jurisdiction do not not find find the the defendants’ defendants' websites. websites. Google’s argument argument that that removal removal of of images images should should be be restricted restricted to to searches searches that that Google's Moselyat could be conducted conducted from within translation of Max Mosely at 13). could within France France (English translation restriction was constituting aa breach penal That restriction was based on the images constituting breach of of France’s France's penal code; publication publication of countries. The of the the images images was not not a breach of the laws of other countries. therefore ordered Google to remove the images from from the "search “search French Court therefore accessible in in France". France”. Max Mosely is distinguishable distinguishable on that engine that it operates, accessible basis. [150] Accepting that [150] that an order with with worldwide worldwide effect effect can can be granted, what test should be applied in determining determining whether whether it should should be granted? I conclude conclude that that the should sought against a non-party non-party requires the Court to consider the order sought the standard test for granting an injunction injunction but modified to take into into account the the direction direction to aa non-party. non-party. granting In Mooney No. 2, Huddart Huddart J. described an appropriate appropriate standard standard at at p. 22: The comparable approach to a Mareva injunction injunction would would be be to require require a tocross crossthe the threshold, threshold, strong prima facie (…) (…)to (...) or a good arguable case (...) and then to balance the interests of the two parties, having regard to all the relevant factors in just and convenient convenient result. in each case, case, to reach aa just [151] The fair question to be tried relates of of course course to to the the plaintiffs' plaintiffs’ claim [151] claim against against since that that is is the the cause cause of of action action in in relation relation to to which which the the injunction injunction is the defendants, since sought. Google takes no no issue issue with with that. that. In In this this case case the the plaintiffs plaintiffs have have not not only only sought. have been been struck struck and and raised an arguable claim; two of the the defendants’ defendants' defences defences have to have have admitted admitted the the allegations. allegations. they are presumed to [152] As for balancing interests of the plaintiffs plaintiffs and [152] balancing the interests and non-party non-party Google, the plaintiffs have suffering irreparable harm by the defendants' defendants’ plaintiffs have established established that that they they are suffering ongoing sale on the the internet. internet. The The plaintiffs plaintiffs have have also also established established that ongoing sale of the the GW1000 GW1000 on inadvertently facilitating facilitating that Google is inadvertently that harm harm through through its its search search engines. While there other search search engines, engines, Google Google does doesnot not contest contest the the plaintiffs' plaintiffs’ assertion assertion that that are other Google’s position position as of internet internet searches means Google's as the the search search engine engine used used for for 70-75% 70-75% of 2014 BCSC 1063 (CanLII) (CanLII) [149] [149] Google relies on Max Mosely in which which the the Regional Court Court of Paris acceded to 40 -Case 5:17-cv-04207 Document-- 40 1 Filed 07/24/17 Page 54 of 143 Equustek Solutions Inc. v. Jack Page 40 will not be be commercially commercially successful successful ifif they cannot cannot be befound found through through the defendants will Google’s search services. Google's inconvenienced in any material way way or or that that itit would would incur incur not assert that it would would be inconvenienced to do do so. so. The The balance balanceofofconvenience conveniencethus thusfavours favours granting granting the theinjunction. injunction. expense to Considerationof ofthe the factors factors identified identified in Nomich Norwich Pharmacal Pharmacal may also be of [154] Consideration assistance: Procon Mining at para. 27; Ventra at para. 50. 50. Modified Modified to to reflect reflect the the sought in this case they include: include: relief sought a. the applicant applicant has provided provided evidence sufficient sufficient to raise a valid, valid, Whether the claim; bona fide or reasonable claim; b. b. the applicant applicant has has established established aarelationship relationship with with the the third third Whether the party such that it establishes that the the third third party party is is somehow somehow involved involved of; in the acts complained of; c. c. the third third party is the only only practicable means to to obtain obtain the Whether the relief sought; d. d. the third third party can can be beindemnified indemnified for for costs costs to to which which the the third third Whether the party party may be exposed because of the order; and e. the interests interests of of justice justice favour the granting granting of of the the relief relief sought. sought. Whether the Tothis thislist listof ofconsiderations considerations II would would add add the the degree degree to to which which the interests interests of [155] To applicant and and the the identified identified non-party non-party could could be beaffected affected — – here those other than the applicant potential purchasers products as potential purchasers will will not not be be able able to to find find and and buy buy the the defendants’ defendants' products as but that that is is as as itit should should be be in in light light of of the the existing existing court court orders orders prohibiting prohibiting the easily, but defendants from selling and related related products. products. defendants selling the the GW1000 GW1000 and Googleisisananinnocent innocentbystander bystanderbut butititisisunwittingly unwittingly facilitating facilitating the the [156] Google defendants’ ongoing ongoing breaches of this Court’s is no other practical way defendants' breaches of Court's orders. orders. There is 2014 BCSC 1063 (CanLII) (CanLII) Googleacknowledges acknowledgesthat thatititcan cando dowhat what is is being being asked of it. Google does [153] Google 41 -Case 5:17-cv-04207 Document--41 1 Filed 07/24/17 Page 55 of 143 Equustek Solutions Inc. v. Jack Page 41 for the There is is no no other other practical practical way to for the defendants’ defendants' website website sales to be stopped. There remove the the defendants' defendants’ websites websites from from Google's Google’s search search results. results. remove injunction is injunction is just justand and equitable equitable in in all all of of the the circumstances circumstances of of the the case: case: Tracey v. Financial Solutions Solutions Centres (B.C.) Ltd., 2007 BCCA 481 at para. 31. A Instaloans Financial not become the prisoner prisoner of judge must not of a formula. formula. As Saunders Saunders J.A. observed observed in Tracey at para. 33: … the criteria criteria [for [for determining determining whether to grant an injunction] injunction] are only ... the only a of the thestatutory statutory authority authority for for injunctions injunctions in judicial expression or explanation of s. 39(1) of of the Law and Equity Equity Act, … ... injunctionor oran anorder orderin in the the nature nature of of mandamus mandamus may be 39(1) AnAninjunction granted or a receiver or receiver manager appointed by an interlocutory interlocutory order order of of the the court court in in all all cases cases in which itit appears to the court to be just just or or convenient convenient that that the the order order should shouldbe be made. made. [Emphasis in original] original] [Emphasis in [158] In determining whether this interim injunction should be granted, I am injunction should am mindful mindful Madam Justice Justice Newbury's Newbury’s admonition admonition that that aa court court should should not permit a defendant of Madam to frustrate frustrate orders of the the court court and that "courts “courts must, to orders of and that must, in order order to to preserve the effectiveness of their judgments, judgments, adapt adapt to to new new circumstances": circumstances”: Mooney Mooney (No. 1) at paras. 10-11. must adapt adapt to the reality reality of e-commerce e-commerce with with its its potential for abuse [159] The Court must would take the the property of others others and sell sell it through through the borderless by those those who would electronic web of the internet. II conclude conclude that that an an interim interim injunction injunction should should be granted electronic compelling Google to block block the websites from from Google's Google’s search search results results compelling Google to the defendants’ defendants' websites worldwide. That order is necessary to preserve preserve the the Court's Court’s process process and and to to ensure ensure worldwide. the defendants defendants cannot cannot continue continue to to flout flout the Court’s orders. that the the Court's orders. [160] Non-parties Non-parties affected affected by Mareva injunctions injunctions are are not not normally normally before the Court, applications of that that kind because applications kind are brought brought without without notice. notice. Google Google was was named in this application, hearing. ItIt is is not not therefore therefore this application, served served with with materials, materials, and attended the hearing. anticipating possible conflicts conflicts Google necessary to craft terms anticipating Google could could face in 2014 BCSC 1063 (CanLII) (CanLII) fundamental question question in each case case is is whether whether the granting granting of an [157] The fundamental 42 -Case 5:17-cv-04207 Document-- 42 1 Filed 07/24/17 Page 56 of 143 Equustek Solutions Inc. v. Jack Page 42 complying with complying with the the interim interim injunction. injunction.No No terms terms of of this this kind kindhave have been been requested by see no no basis basison on the the record record before before me meto toexpect expectsuch suchdifficulties. difficulties. Google and II see I concludethat thatthe theinterim interiminjunction injunction sought sought should should be be granted: granted: [161] I conclude date of of this judgment, judgment, Google Inc. Inc. is is to to cease cease indexing indexing Within 14 days of the date referencing in search results results on its or referencing its internet internet search engines the websites contained in Schedule A to the the notice notice of of application. application. contained VII. COSTS COSTS VII. Theplaintiffs plaintiffsare areentitled entitledtotospecial specialcosts costsof ofthis this application application against against the the [162] The defendants Morgan Jack, Datalink 4 and and Datalink Datalink 7. 7.Special Specialcosts costs are arejustified justified defendants plaintiff’s application application to necessary by by the the because the plaintiffs to enjoin enjoin Google Google was was made made necessary defendants’ flagrant flagrant and and ongoing ongoing breaches breaches of of this this Court's Court’s orders. orders. defendants' The Honourable Honourable Madam Madam Justice Justice L.A. Fenlon 2014 BCSC 1063 (CanLII) (CanLII) VI. CONCLUSION CONCLUSION VI. 43 --- 43 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 57 of 143 SUPREME COURT COLUMUIA OF VANCOUVER NE REGISTRY SP 2 2 2014 No. S112421 Vancouver Registry ENTF RED 4, THE SUPRE E COURT OF BRITISH COLUMBIA BETWEEN: EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES INC. PLAINTIFFS AND: MORGAN JACK, ANDREW CRAWFORD, DATALINK TECHNOLOGIES GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM, MIKE BUNKER, and IGOR C,HEIFOT DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) THE HONOURABLE ) Friday, the 13th day of ) MADAM JUSTICE FENLON ) June 2014 ON THE APPLICATION of the plaintiffs dated November 13, 2012, coming on for hearing at Vancouvern October 22 and 23, 2013, and February 7, 2014, and on hearing Robbie Fleming, counsel for the plaintiffs, and Stephen R. Schachter Q.C. and Geoffrey B. Gomery Q.C., counsel for the application respondents Google Canada Corporation and Google Inc., and no one appearing for the remaining defendants; and on reading further written submissions dated March 7 and 24, 2014, and May 23 and 29, 2014; and JUDGMENT BEING RESERVED TO THIS DATE: THIS COURT ORDERS THAT: 1. Within 14 days of the date of this order, Google Inc. is to cease indexing or referencing in search results on its internet search engines the websites listed in Schedule A, including all of the subpages and subdirectories of the listed websites, until the conclusion of the trial of this action or further order of this court; 2. By September 23, 2014, Google Inc. is to cease indexing or referencing in search results on its internet search engines the websites listed in the following 011867\001\00076680 www.roberffieminglawyers.com 44 - 44 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 58 of 143 schedules, including all of the subpages and subdirectories of the listed websites: a. the additional websites referenced in the December 13, 2012 Order of Tindale J., as set out in "Schedule B" attached, and b. the additional websites referenced during the hearing of this application, as set out in "Schedule C" attached; until the conclusion of the trial of this action or further order of this court; 3. The plaintiffs and Google Inc. have liberty to apply to vary any part of this order, including the Schedules; 4. Madam Justice Fenton is seized of any applications brought pursuant to paragraph 3 above; and 5. The plaintiffs are awarded special costs of this application against the defendants Morgan Jack, Datalink Technologies Gateways Inc. and Datalink Technologies Gateways LLC. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: lawyer for the plaintiffs obbie Fleming Signature--o.fawyer for Google C nada Corporation and Google Inc. Geoffrey B. Gomery 011867\001\00076680 www.robertfleminglawyers.com -- 45 45 -Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 59 of 143 "Schedule A" wwvv.datatechgateways.com www.gw1000.com www.protocolconverter.com www.datalinkgateways.com www. datalink-gateways. com www.datalink-networks.com www.1770-kf3.com www.1784-ktx.corn www.1784-pcmk.com www.datalinkcontrollers.corn www.datalink-networking.corn www.datalinkgw1000.com wwvv.datalinkinterfaces.corn www.gw-1000.com www.1784u2dhp.com wvvw.dhtoethernet.corn vvvvw.datalinkconverters.corn 011867\001\00076680 www.robertfleminglawyers.com - -- 46 46 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 60 of 143 "Schedule B" www.multigatecommunications.com www.americangatewaycorp. corn www.ethernetinterfaces.com wvvw.ethernetdhplus. corn www.gatewayinterfaces.com www.m ultigatecom .com www.dlgw1000.com wvvw.gw1000-dh4851.com www. gateway-1000. corn wvvw.gatewaytech 1000. corn 011867\001\00076680 www.robertfleminglawyers,com -- 47 47 -Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 61 of 143 "Schedule C" wvvw.eth ernetdatah ighway. corn vvww.dl-gw-1 000. com www.abethernetsolutions.com www.dhethernetprotocol.com www.gw1000-dhp1.com www.1770kf2.com 011867\001\00076680 www.robertfleminglawyers.com Case 5:17-cv-04207 Document- 49 1 -Filed 07/24/17 Page 62 of 143 -PREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY No. S112421 Vancouver Registry DEC 1 5 2014 ENTERED IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES INC. PLAINTIFFS AND: MORGAN JACK, ANDREW CRAWFORD, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM, MIKE BUNKER and IGOR CHIEFOT DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) THE HONOURABLE ) Thursday, the 27th day of ) MADAM JUSTICE FENLON ) November 2014 ON THE APPLICATION of the plaintiffs dated November 12, 2014, coming on for hearing at Vancouver, BC, on November 27, 2014 and on hearing John Zeljkovich, counsel for the plaintiffs, and Geoffrey B. Gomery Q.C., counsel for the application respondent Google Inc., and no one appearing for the remaining defendants; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional websites listed as Schedule "A" to this order; www.robertfleminglawyers.com - 50 -50Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 63 of 143 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Schedule "A to this order, including all subpages and subdirectories of those websites, until the conclusion of the trial of this action or further order of this court; 3. Future applications brought by the plaintiffs to vary the Schedules contained in the June 13, 2014 order made in this action can be made by giving written notice of their application (including supporting materials) to Google Inc. (without notice to any of the other defendants), and requiring that Google Inc. inform the plaintiffs of its position in response to the application within 5 business days; in the event that Google Inc. opposes the application, the matter may be set down in the usual manner, with the plaintiffs providing notice to Google Inc. and the defendant Igor Cheifot; and in the event that Google Inc. does not oppose the application, the plaintiffs may proceed with the matter by way of desk order; 4. By consent, this order, and any subsequent orders amending or supplementing the Schedules contained in the June 13, 2014 order made in this action, will stand, fall or be varied according to any order pronounced by the Court of Appeal from the order pronounced June 13, 2014. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Signatu of lawyer for the plaintiffs John Zeljkovich Signature of law r for Google Inc. Geoffrey B. Gomery, Q.C. By the Court. Registrar www.robertfleminglawyers.com 51 Case 5:17-cv-04207 Document-- 51 1 --Filed 07/24/17 Page 64 of 143 Schedule A www.1784pktx.com www.controllogixethernet.com www.controllogixqateways.com www.datalink-converters.com www.datalink-interfaces.com www.datalinkconverters.com www.dhpqateway.com www.dhpgateways.com www.dhptoethernet.com www.ethernetqateways.com www.ethernetipconverter.com www.ethernetipdhplus.com www.gatewayprotocol.com www.gatewayprotocols.com www.gatewaytodhp.com www.gw1000-abeip.com www.gw1000-dh485eip.com www.qw1000-dh485me.com www.gw1000-dhpa.com www.gw1000-dhpm.com www.multi-gateways.com www.multigateprotocols.com www.robertfleminglawyers.com Case Document 1 Filed 07/24/17 Page 65 of 143 scum" diaerutrf-i-l COLUMBIA REGISTRY FEB 7 2915 sewage IN THE BETWEEN: V. EQUUSTEK SOLUTIONS INC, No. Si 1242? Vancouver Registry SUPREME COURT OF BRITISH COLUMBIA ROBERT ANGUS, and CLARMA ENTERPRISES INC. AND: MORGAN JACK, ANDREW CRAWFORD, PLAINTIFFS DATALINK TECHNOLOGY GATEWAYS INC, DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM, MIKE BEFORE A truncate: czar: BUNKER and IGOR CHIEFOT ORDER MADE. AFTER APPLICATION Cage?1T DEFENDANTS ?i?U?ti-smw? the 0f February 2015 ON THE APPLICATION ofthe plaintiffs without a hearing and on reading the materials ?led by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional websites listed as Schedule to this order; and 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Case Document 1 Filed 07/24/17 Page 66 of 143 Schedule to this order, including all subpages and subdirectories of those websites, until the conclusion of the trial of this action or further order of this coun. THE APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, lF ANY, THAT ARE ABOVE AS BEING BY CONSENT: Signaturh lawyer for the plaintiffs John Jkovich By the Court. Registrar Case Document 1 Filed 07/24/17 Page 67 of 143 Schedule A 53 -Case 5:17-cv-04207 Document- 53 1 Filed 07/24/17 Page 68 of 143 SUPREME COURT BRITISH COLU MBIA VANCOUVER REGISTRY APR 2 3 2015 No. S112421 Vancouver Registry GtNITRgn IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) ) ))y4 ) ) u-tAtviE ft-w- Comer , theZ day of April 204 ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional websites listed as Schedule "A" to this order; and 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Schedule "A to this order, including all subpages and subdirectories of those www.robertfleminglawyers.com 54 Case 5:17-cv-04207 Document- 54 1 Filed 07/24/17 Page 69 of 143 websites, until the conclusion of the trial of this action or further order of this court. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Sign re of lawyer for the plaintiffs Jo Zeljkovich By the Court. www.robertfleminglawyers.com 55 Case 5:17-cv-04207 Document-- 55 1 --Filed 07/24/17 Page 70 of 143 Schedule A http://www.ethernetdatahighwayplus.corn http://www,datalink-gw1000.com www.robeffleminglawyers.com -- 57 57 Case 5:17-cv-04207 Document 1 -- Filed 07/24/17 Page 71 of 143 SuPREME COURT BRITISH COLUMBIA OVANCOUVER REGISTRY No. S112421 Vancouver Registry JUN 0 4 1D15 I \I THE SUPREME COURT OF BRITISH COLUMBIA EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE E OF 11 ) ) ) ) litAte,5o( , the 1(14day of June 2015 Co LA (Z-T ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT; 1. The June 13, 2014 order made in this action be varied to include the additional websites listed as Schedule "A" to this order; and 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Schedule "A to this order, including all subpages and subdirectories of those wwvv.robertfleminglawyers.com 58 Case 5:17-cv-04207 Document-- 58 1 --Filed 07/24/17 Page 72 of 143 websites, until the conclusion of the trial of this action or further order of this court. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Signatvre-4Sf lawyer for the plaintiffs John Zeljkovich Registrar www.robertfleminglawyers.com Case 5:17-cv-04207 Document- 59 1 -Filed 07/24/17 Page 73 of 143 Schedule A www.qateway-owl 000dhpl.com www.datalink-gw1000abeip.corn www.robertfleminglawyers.com 99 -Case 5:17-cv-04207 Document-- 99 1 Filed 07/24/17 Page 74 of 143 SUPREME COURT OF BRITISH COLUMBIA VANCOUVER REGISTRY JUL 0 B 2015 No. S112421 Vancouver Registry . ENT p60 IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) ) -I\ Cc-Ir. "- c>f= 1-1.+C' ) ) Fr (40-41 the 3 day of July 2015 ) ) ) ) ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional websites listed as Schedule "A" to this order; and 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Schedule "A" to this order, including all subpages and subdirectories of those www.robertilerninglawyers.com -- 100 100 -Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 75 of 143 websites, until the conclusion of the trial of this action or further order of this court. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Signatut df1awyer for the p aintiffs John eljkovich By the Court. Registrar www.robertfleminglawyers.com - 101 -- 101 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 76 of 143 Schedule A www.datalink-qw1000-abeip.com https://ethernetiptodhplus.wordpress.com www.ethernettodatahiqhwayplus.corn www.datahighwayplustoethernet.corn www.robertfleminglawyers.corn -- 103 103 Case 5:17-cv-04207 Document 1 --Filed 07/24/17 Page 77 of 143 No. S112421 Vancouver Registry ;r1) 1.7 2015 4IN D IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) ) TAE= -E-1-10 - NOURABLE JUST-AGE ) ) ) ) et‘A (°1 "); , the ‘' day of 2015 ) ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional websites listed as Schedule "A" to this order; and 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Schedule "A" to this order, including all subpages and subdirectories of those www.robertfleminglawyers.com 104 --- 104 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 78 of 143 websites, until the conclusion of the trial of this action or further order of this court. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: SignaturOlawyer for the plaintiffs John Zeljkoyich By the Court. www.robertfleminglawyers.corn 105 --- 105 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 79 of 143 Schedule A www.datalinkqw1000abeip.com https://plus.google.cam/+Ethernetallenbradleydhplus https://kinja.com/datalinkgw1000 https://datalinkgw1000.wordpress.corn www.robertfleminglawyers.com - 111 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 80 of 143 '", V111:1(A OiVi* No. S112421 Vancouver Registry HE SUPREME COURT OF BRITISH COLUMBIA EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) ) ) ) ) ) A JUDGE OF THE COURT ) ) ) ) IllAV,SIVN , the l'Z'Mday of OfinikAMI -2015.L/op L., ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional website listed in Schedule "A" to this order; 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its Internet search engines the websites listed in Schedule "A" to this order, including all subpages and subdirectories of those www.robertfleminglawyers.com 112 --- 112 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 81 of 143 websites, until the conclusion of the trial of this action or further order of this court; and 3. The June 13, 2014 order made in this action be varied to include a term that within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the URLs listed in Schedule "B" to this order until the conclusion of the trial of this action or further order of this court. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: Signatwe of lawyer for the plaintiffs JohneZeljkovich By the Court. Registrar www.robertfleminglawyers.com 113 --- 113 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 82 of 143 Schedule A 1. http://www.ethernet-datahighwayplus.com www.robertfleminglawyers,com -- 114 114 Case 5:17-cv-04207 Document 1 --Filed 07/24/17 Page 83 of 143 Schedule B 1. httpillwww.pccweb.com/wp-content/uploads/2015/08/C Data Link Technologies.pdf; 2. http://www.modbus.org/viewdevicephp?id=335; 3. http://www.manualslib.com/manual/665918/11i-Datalink-Gw1000.html; 4. http://www.automation .com/product-showcase/gw1000-abeip-allen-bradly-data-highway-plus-converter; 5. http://datalinkgw1000.kinja.com/gw1000-dhpe-ethernet-df1-dh-1721122330; 6. httpl/www.iebmedia.com/index,php?id=10610&parentid=52&themeid=222&hpid=4& showdetail=true&bb=1; 7. http://www.emobility24.eu/index. ph p?id=10610&parentid=52&themeid=222&h pid=4& showdetail=true&bb=1; 8. http://www.manta.com/c/mx2zsrq/datalink-technologies-gateways-inc; 9. http://www.manta.com/c/mx4dg23/data lin k-technolog ies-gateways; 10. http://www.manta.com/cp/mx450tw/555112b2bc36f6db05ded5bf/datalink-_gw1000dhp1-df1-to-data-highway-plus-dh-conyerter; 11. https://fr-fr.facebook.com/datalinkqw1000abeip/; 12. https://www.facebook.com!permalink.php?id=779277212121133&story fbid=782111 681837686; 13. https://vi-vn.facebook.com/datalinkqw1000abeip/; and 14. https://www.linkedin.com/company/datalink-technologies-group-inc. www.robertfleminglawyers.com -- 116 116 -Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 84 of 143 No. S112421 Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETVVEENi. EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATA.L1NK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) ) Pi 65-7N, the L. ---' day of 201-6 ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include the additional website listed in Schedule "A" to this order; 2. Within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the websites listed in Schedule "A" to this order, including all subpages and subdirectories of those www.robertfleminglawyers.com -- 117 117 -Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 85 of 143 websites, until the conclusion of the trial of this action or further order of this court; and 3. The June 13, 2014 order made in this action be varied to include a term that within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its Internet search engines the URLs listed in Schedule "B" to this order until the conclusion of the trial of this action or further order of this court. THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: I r Signatufe'of lawyer for the plaintiffs Joh.n/Zeljkovich By the Court. Registrar wwvv.robertfleminglawyers.com - 118 118 Case 5:17-cv-04207 Document 1 -Filed 07/24/17 Page 86 of 143 Schedule A 1. http://wwiv.datalinkcontrollers.datatechqateways.corn/ 2. http://www.ethemetip-datahighwayplus.com/ www.robertfleminglawyers.com -119- 119 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 87 of 143 1. http://516493715498262299.weeblv.com/about.html 2. http://datalinkow1000.kinIacom 3. http://datalinkow1000.kinjacom/gw1000-abeip-1720388351 4. http://manual.zz.com/doc/2989233/gw1000-user-manual 5. http://wwiv.articlesbase.com/industrial-articles/datalink-technolooies-gw1000-abeiplow-cost-df1-ethernet-ethernetip-converter-to-allen-brad ley-data-highway-plus-d h-dh485-7210304. html 6. http://www.artipot.com/articles/1853538/datalink-ow1000-df1-ab-ethernet-ethemet-ipconverter-to-allen-bradleyss-datahighway-plus-dh-dh-485.htm 7. http://www.docfoc.com/gw1000-abeip 8. http://wvvw.europages.co.uk/DATALINK-TECHNOLOGIESGW1000ABEIP/00000004659162-460217001.html 9. http://www.iebmedia.com/index.php?id=10947&parentid=52&themeid=226&hid=576 62&hpic1=4&showdetail=true&sup=57662&bb=&nbb= 10. http://www.manta.com/cp/mx450tw/5551180059146d3f665d05fb/datalink-gw1000abeip-ethernet-ip-to-data-highway-plus-converter 11. http://wwvv.mfgpapes.com/company/Datalink-Technolopies-in-WASHIN GTON-USA10168500/ 12. http://www.sooperarticles.com/shopping-articles/electronics-articles/datalink-owl 000altemative-allen-bradleys-1784-u2dhp-dh-interiace-card-1394191.html 13. httos://www.facebook.com/datalinkow1000abeipi 14. https://www.facebook.com/datalinkgw1000abeip/posts/782453511803503 15. https://www.facebook.com/datalinkqw1000abeip/posts/889923767723143 vvww.robertfleminglawyers.corn Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 88 of 143 SUPREME COURT IA OF BRITISH REGI ST RY VANCOUVERCOLUMB AUG 2 4 2016 No. S112421 Vancouver Registry IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: EQUUSTEK SOLUTIONS INC., ROBERT ANGUS, and CLARMA ENTERPRISES LTD. PLAINTIFFS AND: MORGAN JACK aka MATT GARCIA aka MATT GARCI aka IAN TAYLOR, ANDREW CRAWFORD aka DEREK SMYTHE, DATALINK TECHNOLOGY GATEWAYS INC., DATALINK 5, DATALINK 6, JOHN DOE, DATALINK TECHNOLOGIES GATEWAYS LLC, LEE INGRAHAM aka DARREN LANGDON, MIKE BUNKER, IGOR CHEIFOT aka JOLIO FERNANDEZ, ALEXANDER CHEIFOT aka RANDY SCHTOLZ, FRANK GEIGER aka FELIX FERNANDEZ, and ALFONSO DOE DEFENDANTS ORDER MADE AFTER APPLICATION BEFORE ) 1 OUDGE OF "THE- (cuct ) Nalrodai , the _a_ day of ) 2016 ON THE APPLICATION of the plaintiffs without a hearing and on reading the materials filed by the plaintiffs; THIS COURT ORDERS THAT: 1. The June 13, 2014 order made in this action be varied to include a term that within 14 days of the date of this order, Google Inc. cease indexing or referencing in search results on its internet search engines the URLs listed in Schedule "A" to this order until the conclusion of the trial of this action or further order of this court. BY THE COURT ENDORSEMENTS ATTACHED REGISTRAR Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 89 of 143 THE FOLLOWING PARTIES APPROVE THE FORM OF THIS ORDER AND CONSENT TO EACH OF THE ORDERS, IF ANY, THAT ARE INDICATED ABOVE AS BEING BY CONSENT: re of lawyer for the plaintiffs Sig John Zeljkovich www.robertfleminglawyers.com Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 90 of 143 Schedule A 1. http://www.cesco.com/b2c/product/617546 2. http://www.iebmedia.com/wireless.php?id=11042&parentid=52&themeid=225 &hid=57662&hpid=4&showdetail=true&sup=57662&bb=&nbb= 3. https://www.facebook.com/datalinkgw1000abeip/posts/782111681837686 4. http://datalinkgw1000.kinja.com/datalink-gw1000-multi-protocol-converterinterfacing-n-1723096976 5. http://www.articlesbase.com/industrial-articles/datalink-technologies-gw1000abeip-low-cost-df1-ethemet-ethernetip-converter-to-allen-bradley-datahighway-plus-dh-dh-485-7210304.html www.robertfleminglawyers.com Case Document 1 Filed 07/24/17 Page 91 of 143 EXHIBIT Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 92 of 143 SUPREME COURT OF CANADA CITATION: Google Inc. v. Equustek Solutions Inc., 2017 SCC 34 APPEAL HEARD: December 6, 2016 JUDGMENT RENDERED: June 28, 2017 DOCKET: 36602 BETWEEN: Google Inc. Appellant and Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc. Respondents - and Attorney General of Canada, Attorney General of Ontario, Canadian Civil Liberties Association, OpenMedia Engagement Network, Reporters Committee for Freedom of the Press, American Society of News Editors, Association of Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., First Amendment Coalition, First Look Media Works, Inc., New England First Amendment Coalition, News Media Alliance (formerly known as Newspaper Association of America), AOL Inc., California Newspaper Publishers Association, The Associated Press, The Investigative Reporting Workshop at American University, Online News Association, Society of Professional Journalists, Human Rights Watch, ARTICLE 19, Open Net (Korea), Software Freedom Law Centre, Center for Technology and Society, Wikimedia Foundation, British Columbia Civil Liberties Association, Electronic Frontier Foundation, International Federation of the Phonographic Industry, Music Canada, Canadian Publishers’ Council, Association of Canadian Publishers, International Confederation of Societies of Authors and Composers, International Confederation of Music Publishers, Worldwide Independent Network and International Federation of Film Producers Associations Interveners CORAM: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 93 of 143 R EASONS FOR JUDGMENT: (paras. 1 to 54) Abella J. (McLachlin C.J. and Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. concurring) JOINT DISSENTING REASONS : (paras. 55 to 82) Côté and Rowe JJ. N OTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 94 of 143 GOOGLE INC. v. EQUUSTEK SOLUTIONS INC. Google Inc. Appellant v. Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc. Respondents and Attorney General of Canada, Attorney General of Ontario, Canadian Civil Liberties Association, OpenMedia Engagement Network, Reporters Committee for Freedom of the Press, American Society of News Editors, Association of Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., First Amendment Coalition, First Look Media Works, Inc., New England First Amendment Coalition, News Media Alliance (formerly known as Newspaper Association of America), AOL Inc., California Newspaper Publishers Association, The Associated Press, The Investigative Reporting Workshop at American University, Online News Association, Society of Professional Journalists, Human Rights Watch, ARTICLE 19, Open Net (Korea), Software Freedom Law Centre, Center for Technology and Society, Wikimedia Foundation, British Columbia Civil Liberties Association, Electronic Frontier Foundation, International Federation of the Phonographic Industry, Music Canada, Canadian Publishers’ Council, Association of Canadian Publishers, International Confederation of Societies of Authors and Composers, International Confederation of Music Publishers, Worldwide Independent Network and International Federation of Film Producers Associations Interveners Indexed as: Google Inc. v. Equustek Solutions Inc. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 95 of 143 2017 SCC 34 File No.: 36602. 2016: December 6; 2017: June 28. Present: McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown and Rowe JJ. ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA Injunctions — Interlocutory injunction — Non-party — Technology company bringing action against distributor for unlawful use and sale of its intellectual property through Internet — Company granted interlocutory injunction against Google, a non-party to underlying action, to cease indexing or referencing certain search results on its Internet search engine — Whether Google can be ordered, pending trial of action, to globally de-index websites of distributor which, in breach of several court orders, is using those websites to unlawfully sell intellectual property of another company — Whether Supreme Court of British Columbia had jurisdiction to grant injunction with extraterritorial effect — Whether, if it did, it was just and equitable to do so. E is a small technology company in British Columbia that launched an action against D. E claimed that D, while acting as a distributor of E’s products, began to re-label one of the products and pass it off as its own. D also acquired Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 96 of 143 confidential information and trade secrets belonging to E, using them to design and manufacture a competing product. D filed statements of defence disputing E’s claims, but eventually abandoned the proceedings and left the province. Some of D’s statements of defence were subsequently struck. Despite court orders prohibiting the sale of inventory and the use of E’s intellectual property, D continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world. E approached Google and requested that it de-index D’s websites. Google refused. E then brought court proceedings, seeking an order requiring Google to do so. Google asked E to obtain a court order prohibiting D from carrying on business on the Internet saying it would comply with such an order by removing specific webpages. An injunction was issued by the Supreme Court of British Columbia ordering D to cease operating or carrying on business through any website. Between December 2012 and January 2013, Google advised E that it had de-indexed 345 specific webpages associated with D. It did not, however, de-index all of D’s websites. De-indexing webpages but not entire websites proved to be ineffective since D simply moved the objectionable content to new pages within its websites, circumventing the court orders. Moreover, Google had limited the de-indexing to searches conducted on google.ca. E therefore obtained an interlocutory injunction to enjoin Google from displaying any part of D’s websites on any of its search results worldwide. The Court of Appeal for British Columbia dismissed Google’s appeal. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 97 of 143 Held (Côté and Rowe JJ. dissenting): The appeal is dismissed and the worldwide interlocutory injunction against Google is upheld. Per McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ.: The issue is whether Google can be ordered, pending a trial, to globally de-index D’s websites which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company. The decision to grant an interlocutory injunction is a discretionary one and entitled to a high degree of deference. Interlocutory injunctions are equitable remedies that seek to ensure that the subject matter of the litigation will be preserved so that effective relief will be available when the case is ultimately heard on the merits. Their character as “interlocutory” is not dependent on their duration pending trial. Ultimately, the question is whether granting the injunction is just and equitable in the circumstances of the case. The test for determining whether the court should exercise its discretion to grant an interlocutory injunction against Google has been met in this case: there is a serious issue to be tried; E is suffering irreparable harm as a result of D’s ongoing sale of its competing product through the Internet; and the balance of convenience is in favour of granting the order sought. Google does not dispute that there is a serious claim, or that E is suffering irreparable harm which it is inadvertently facilitating through its search engine. Nor Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 98 of 143 does it suggest that it would be inconvenienced in any material way, or would incur any significant expense, in de-indexing D’s websites. Its arguments are that the injunction is not necessary to prevent irreparable harm to E and is not effective; that as a non-party it should be immune from the injunction; that there is no necessity for the extraterritorial reach of the order; and that there are freedom of expression concerns that should have tipped the balance against granting the order. Injunctive relief can be ordered against someone who is not a party to the underlying lawsuit. When non-parties are so involved in the wrongful acts of others that they facilitate the harm, even if they themselves are not guilty of wrongdoing, they can be subject to interlocutory injunctions. It is common ground that D was unable to carry on business in a commercially viable way without its websites appearing on Google. The injunction in this case flows from the necessity of Google’s assistance to prevent the facilitation of D’s ability to defy court orders and do irreparable harm to E. Without the injunctive relief, it was clear that Google would continue to facilitate that ongoing harm. Where it is necessary to ensure the injunction’s effectiveness, a court can grant an injunction enjoining conduct anywhere in the world. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. If the injunction were restricted to Canada alone or to google.ca, the remedy would be deprived of its Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 99 of 143 intended ability to prevent irreparable harm, since purchasers outside Canada could easily continue purchasing from D’s websites, and Canadian purchasers could find D’s websites even if those websites were de-indexed on google.ca. Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction, is theoretical. If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it is not equitable to deny E the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. D and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. E has made efforts to locate D with limited success. D is only able to survive — at the expense of E’s survival — on Google’s search engine which directs potential customers to D’s websites. This makes Google the determinative player in allowing the harm to occur. On balance, since the world-wide injunction is the only effective way to mitigate the harm to E pending the Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 100 of 143 trial, the only way, in fact, to preserve E itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non-existent, the interlocutory injunction should be upheld. Per Côté and Rowe JJ. (dissenting): While the court had jurisdiction to issue the injunctive order against Google, it should have refrained from doing so. Numerous factors affecting the grant of an injunction strongly favour judicial restraint in this case. First, the Google Order in effect amounts to a final determination of the action because it removes any potential benefit from proceeding to trial. In its original underlying claim, E sought injunctions modifying the way D carries out its website business. E has been given more injunctive relief than it sought in its originating claim, including requiring D to cease website business altogether. Little incentive remains for E to return to court to seek a lesser injunctive remedy. This is evidenced by E’s choice to not seek default judgment during the roughly five years which have passed since it was given leave to do so. The Google Order provides E with more equitable relief than it sought against D and gives E an additional remedy that is final in nature. The order against Google, while interlocutory in form, is final in effect. The test for interlocutory injunctions does not apply to an order that is effectively final. In these circumstances, an extensive review of the merits of this case was therefore required but was not carried out by the court below, contrary to caselaw. The Google Order does not meet the test for a permanent injunction. Although E’s claims were Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 101 of 143 supported by a good prima facie case, it was not established that D designed and sold counterfeit versions of E’s product, or that this resulted in trademark infringement and unlawful appropriation of trade secrets. Second, Google is a non-party to the proceedings between E and D. E alleged that Google’s search engine was facilitating D’s ongoing breach by leading customers to D’s websites. However, the prior order that required D to cease carrying on business through any website was breached as soon as D established a website to conduct its business, regardless of how visible that website might be through Google searches. Google did not aid or abet the doing of the prohibited act. Third, the Google Order is mandatory and requires ongoing modification and supervision because D is launching new websites to replace de-listed ones. Courts should avoid granting injunctions that require such cumbersome court-supervised updating. Furthermore, the Google Order has not been shown to be effective in making D cease operating or carrying on business through any website. Moreover, the Google Order does not assist E in modifying D’s websites, as E sought in its originating claim for injunctive relief. The most that can be said is the Google Order might reduce the harm to E. But it has not been shown that the Google Order is effective in doing so. D’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 102 of 143 other indirect means. D’s websites are open for business on the Internet whether Google searches list them or not. Finally, there are alternative remedies available to E. E sought a world-wide Mareva injunction to freeze D’s assets in France, but the Court of Appeal for British Columbia urged E to pursue a remedy in French courts. There is no reason why E cannot do what the Court of Appeal urged it to do. E could also pursue injunctive relief against the ISP providers. In addition, E could initiate contempt proceedings in France or in any other jurisdiction with a link to the illegal websites. Therefore, the Google Order ought not to have been granted. Cases Cited By Abella J. Applied: RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048; considered: Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133; Mareva Compania Naviera SA v. International Bulkcarriers SA, [1975] 2 Lloyd’s Rep. 509; referred to: Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; Seaward v. Paterson, [1897] 1 Ch. 545; York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755; Cartier International AG v. British Sky Broadcasting Ltd., [2016] EWCA Civ 658, [2017] 1 All E.R. 700; Warner-Lambert Co. v. Actavis Group PTC EHF, [2015] EWHC 485 (Pat.), 144 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 103 of 143 B.M.L.R. 194; Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2; Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., 2007 SCC 20, [2007] 1 S.C.R. 867; Mooney v. Orr (1994), 98 B.C.L.R. (2d) 318; Babanaft International Co. S.A. v. Bassatne, [1990] 1 Ch. 13; Republic of Haiti v. Duvalier, [1990] 1 Q.B. 202; Derby & Co. v. Weldon, [1990] 1 Ch. 48; Derby & Co. v. Weldon (Nos. 3 and 4), [1990] 1 Ch. 65. By Côté and Rowe JJ. (dissenting) RJR — MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Fourie v. Le Roux, [2007] UKHL 1, [2007] 1 All E.R. 1087; Guaranty Trust Co. of New York v. Hannay & Co., [1915] 2 K.B. 536; Cartier International AG v. British Sky Broadcasting Ltd., 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949; Mercedes Benz A.G. v. Leiduck, [1996] 1 A.C. 284; John Deere Ltd. v. Firdale Farms Ltd. (1987), 45 D.L.R. (4th) 641; Parkin v. Thorold (1852), 16 Beav. 59, 51 E.R. 698; Schooff v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680; McIsaac v. Healthy Body Services Inc., 2009 BCSC 1716; Plouffe v. Roy, 2007 CanLII 37693; Spiller v. Brown (1973), 43 D.L.R. (3d) 140; 1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643; MacMillan Bloedel Ltd. v. Simpson, [1996] 2 S.C.R. 1048; Seaward v. Paterson, [1897] 1 Ch. 545; Acrow (Automation) Ltd. v. Rex Chainbelt Inc., [1971] 1 W.L.R. 1676; Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133; National Commercial Bank of Jamaica Ltd. v. Olint Corp., [2009] 1 W.L.R. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 104 of 143 1405; Redland Bricks Ltd. v. Morris, [1970] A.C. 652; Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1; Attorney General v. Observer Ltd., [1990] 1 A.C. 109. Statutes and Regulations Cited Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998). Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36. Law and Equity Act, R.S.B.C. 1996, c. 253, s. 39(1). Authors Cited Bean, David, Andrew Burns and Isabel Parry. Injunctions, 11th ed. London: Sweet & Maxwell, 2012. Berryman, Jeffrey. The Law of Equitable Remedies, 2nd ed. Toronto: Irwin Law, 2013. Black, Vaughan, and Edward Babin. “Mareva Injunctions in Canada: Territorial Aspects” (1997), 28 Can. Bus. L.J. 430. Fraser, Peter G., John W. Horn and Susan A. Griffin. The Conduct of Civil Litigation in British Columbia, 2nd ed. Markham, Ont.: LexisNexis, 2007 (loose-leaf updated December 2016, release 24). Pitel, Stephen G. A., and Andrew Valentine. “The Evolution of the Extra-territorial Mareva Injunction in Canada: Three Issues” (2006), 2 J. Priv. Int’l L. 339. Riordan, Jaani. The Liability of Internet Intermediaries. Oxford: Oxford University Press, 2016. Sharpe, Robert J. Injunctions and Specific Performance, loose-leaf ed. Toronto: Canada Law Book, 1992 (updated November 2016, release 25). Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 105 of 143 Spry, I. C. F. The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 9th ed. Pyrmont, N.S.W.: Lawbook, 2014. APPEAL from a judgment of the British Columbia Court of Appeal (Frankel, Groberman and Harris JJ.A.), 2015 BCCA 265, 75 B.C.L.R. (5th) 315, 373 B.C.A.C. 240, 641 W.A.C. 240, 39 B.L.R. (5th) 175, 71 C.P.C. (7th) 215, 135 C.P.R. (4th) 173, 386 D.L.R. (4th) 224, [2015] 11 W.W.R. 45, [2015] B.C.J. No. 1193 (QL), 2015 CarswellBC 1590 (WL Can.), affirming a decision of Fenlon J., 2014 BCSC 1063, 63 B.C.L.R. (5th) 145, 28 B.L.R. (5th) 265, 374 D.L.R. (4th) 537, [2014] 10 W.W.R. 652, [2014] B.C.J. No. 1190 (QL), 2014 CarswellBC 1694 (WL Can.), granting an interlocutory injunction against Google. Appeal dismissed, Côté and Rowe JJ. dissenting. William C. McDowell, Marguerite F. Ethier and Scott M. J. Rollwagen, for the appellant. Robbie Fleming and Michael Sobkin, for the respondents. Jeffrey G. Johnston, for the intervener the Attorney General of Canada. Sandra Nishikawa, John Corelli and Brent Kettles, for the intervener the Attorney General of Ontario. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 106 of 143 Mathew Good, for the intervener the Canadian Civil Liberties Association. Cynthia Khoo, for the intervener the OpenMedia Engagement Network. Written submissions only by Iris Fischer and Helen Richards, for the interveners the Reporters Committee for Freedom of the Press, the American Society of News Editors, the Association of Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., the First Amendment Coalition, First Look Media Works, Inc., the New England First Amendment Coalition, the News Media Alliance (formerly known as the Newspaper Association of America), AOL Inc., the California Newspaper Publishers Association, The Associated Press, The Investigative Reporting Workshop at American University, the Online News Association and the Society of Professional Journalists. Written submissions only by Paul Schabas and Kaley Pulfer, for the interveners Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software Freedom Law Centre and the Center for Technology and Society. Written submissions only by David T. S. Fraser and Jane O’Neill, for the intervener the Wikimedia Foundation. Justin Safayeni and Carlo Di Carlo, for the intervener the British Columbia Civil Liberties Association. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 107 of 143 David Wotherspoon and Daniel Byma, for the intervener the Electronic Frontier Foundation. Dan Glover and Miranda Lam, for the interveners the International Federation of the Phonographic Industry, Music Canada, the Canadian Publishers’ Council, the Association of Canadian Publishers, the International Confederation of Societies of Authors and Composers, the International Confederation of Music Publishers and the Worldwide Independent Network. Gavin MacKenzie and Brooke MacKenzie, for the intervener the International Federation of Film Producers Associations. The judgment of McLachlin C.J. and Abella, Moldaver, Karakatsanis, Wagner, Gascon and Brown JJ. was delivered by ABELLA J. — [1] The issue in this appeal is whether Google can be ordered, pending a trial, to globally de-index the websites of a company which, in breach of several court orders, is using those websites to unlawfully sell the intellectual property of another company. The answer turns on classic interlocutory injunction jurisprudence: is there a serious issue to be tried; would irreparable harm result if the injunction were not granted; and does the balance of convenience favour granting or refusing the Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 108 of 143 injunction. Ultimately, the question is whether granting the injunction would be just and equitable in all the circumstances of the case. Background [2] Equustek Solutions Inc. is a small technology company in British Columbia. It manufactures networking devices that allow complex industrial equipment made by one manufacturer to communicate with complex industrial equipment made by another manufacturer. [3] The underlying action between Equustek and the Datalink defendants (Morgan Jack, Datalink Technology Gateways Inc., and Datalink Technologies Gateways LLC – “Datalink”) was launched by Equustek on April 12, 2011. It claimed that Datalink, while acting as a distributor of Equustek’s products, began to re-label one of the products and pass it off as its own. Datalink also acquired confidential information and trade secrets belonging to Equustek, using them to design and manufacture a competing product, the GW1000. Any orders for Equustek’s product were filled with the GW1000. When Equustek discovered this in 2011, it terminated the distribution agreement it had with Datalink and demanded that Datalink delete all references to Equustek’s products and trademarks on its websites. [4] claims. The Datalink defendants filed statements of defence disputing Equustek’s Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 109 of 143 [5] On September 23, 2011, Leask J. granted an injunction ordering Datalink to return to Equustek any source codes, board schematics, and any other documentation it may have had in its possession that belonged to Equustek. The court also prohibited Datalink from referring to Equustek or any of Equustek’s products on its websites. It ordered Datalink to post a statement on its websites informing customers that Datalink was no longer a distributor of Equustek products and directing customers interested in Equustek’s products to Equustek’s website. In addition, Datalink was ordered to give Equustek a list of customers who had ordered an Equustek product from Datalink. [6] On March 21, 2012, Fenlon J. found that Datalink had not properly complied with this order and directed it to produce a new customer list and make certain changes to the notices on their websites. [7] Datalink abandoned the proceedings and left the jurisdiction without producing any documents or complying with any of the orders. Some of Datalink’s statements of defence were subsequently struck. [8] On July 26, 2012, Punnett J. granted a Mareva injunction freezing Datalink’s worldwide assets, including its entire product inventory. He found that Datalink had incorporated “a myriad of shell corporations in different jurisdictions”, continued to sell the impugned product, reduced prices to attract more customers, and was offering additional services that Equustek claimed disclosed more of its trade secrets. He concluded that Equustek would suffer irreparable harm if the injunction Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 110 of 143 were not granted, and that, on the balance of convenience and due to a real risk of the dissipation of assets, it was just and equitable to grant the injunction against Datalink. [9] On August 3, 2012, Fenlon J. granted another interlocutory injunction prohibiting Datalink from dealing with broader classes of intellectual property, including “any use of whole categories of documents and information that lie at the heart of any business of a kind engaged in by both parties”. She noted that Equustek’s “earnings ha[d] fallen drastically since [Datalink] began [its] impugned activities” and concluded that “the effect of permitting [Datalink] to carry on [its] business [would] also cause irreparable harm to [Equustek]”. [10] On September 26, 2012, Equustek brought an application to have Datalink and its principal, Morgan Jack, found in contempt. No one appeared on behalf of Datalink. Groves J. issued a warrant for Morgan Jack’s arrest. It remains outstanding. [11] Despite the court orders prohibiting the sale of inventory and the use of Equustek’s intellectual property, Datalink continues to carry on its business from an unknown location, selling its impugned product on its websites to customers all over the world. [12] Not knowing where Datalink or its suppliers were, and finding itself unable to have the websites removed by the websites’ hosting companies, Equustek approached Google in September 2012 and requested that it de-index the Datalink Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 111 of 143 websites. Google refused. Equustek then brought court proceedings seeking an order requiring Google to do so. [13] When it was served with the application materials, Google asked Equustek to obtain a court order prohibiting Datalink from carrying on business on the Internet. Google told Equustek it would comply with such an order by removing specific webpages. Pursuant to its internal policy, Google only voluntarily de-indexes individual webpages, not entire websites. Equustek agreed to try this approach. [14] On December 13, 2012, Equustek appeared in court with Google. An injunction was issued by Tindale J. ordering Datalink to “cease operating or carrying on business through any website”. Between December 2012 and January 2013, Google advised Equustek that it had de-indexed 345 specific webpages associated with Datalink. It did not, however, de-index all of the Datalink websites. [15] Equustek soon discovered that de-indexing webpages but not entire websites was ineffective since Datalink simply moved the objectionable content to new pages within its websites, circumventing the court orders. [16] Google had limited the de-indexing to those searches that were conducted on google.ca. Google’s search engine operates through dedicated websites all over the world. The Internet search services are free, but Google earns money by selling advertising space on the webpages that display search results. Internet users with Canadian Internet Protocol addresses are directed to “google.ca” when performing Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 112 of 143 online searches. But users can also access different Google websites directed at other countries by using the specific Uniform Resource Locator, or URL, for those sites. That means that someone in Vancouver, for example, can access the Google search engine as though he or she were in another country simply by typing in that country’s Google URL. Potential Canadian customers could, as a result, find Datalink’s websites even if they were blocked on google.ca. Given that the majority of the sales of Datalink’s GW1000 were to purchasers outside of Canada, Google’s de-indexing did not have the necessary protective effect. [17] Equustek therefore sought an interlocutory injunction to enjoin Google from displaying any part of the Datalink websites on any of its search results worldwide. Fenlon J. granted the order (374 D.L.R. (4th) 537 (B.C.S.C.)). The operative part states: Within 14 days of the date of this order, Google Inc. is to cease indexing or referencing in search results on its internet search engines the [Datalink] websites …, including all of the subpages and subdirectories of the listed websites, until the conclusion of the trial of this action or further order of this court. [Emphasis added] [18] Fenlon J. noted that Google controls between 70-75 percent of the global searches on the Internet and that Datalink’s ability to sell its counterfeit product is, in large part, contingent on customers being able to locate its websites through the use of Google’s search engine. Only by preventing potential customers from accessing the Datalink websites, could Equustek be protected. Otherwise, Datalink would be able to continue selling its product online and the damages Equustek would suffer would not be recoverable at the end of the lawsuit. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 113 of 143 [19] Fenlon J. concluded that this irreparable harm was being facilitated through Google’s search engine; that Equustek had no alternative but to require Google to de-index the websites; that Google would not be inconvenienced; and that, for the order to be effective, the Datalink websites had to be prevented from being displayed on all of Google’s search results, not just google.ca. As she said: On the record before me it appears that to be effective, even within Canada, Google must block search results on all of its websites. Furthermore, [Datalink’s] sales originate primarily in other countries, so the Court’s process cannot be protected unless the injunction ensures that searchers from any jurisdiction do not find [Datalink’s] websites. 1 [20] The Court of Appeal of British Columbia dismissed Google’s appeal (386 D.L.R. (4th) 224). Groberman J.A. accepted Fenlon J.’s conclusion that she had in personam jurisdiction over Google and could therefore make an order with extraterritorial effect. He also agreed that courts of inherent jurisdiction could grant equitable relief against non-parties. Since ordering an interlocutory injunction against Google was the only practical way to prevent Datalink from flouting the court’s several orders, and since there were no identifiable countervailing comity or freedom of expression concerns that would prevent such an order from being granted, he upheld the interlocutory injunction. [21] For the following reasons, I agree with Fenlon J. and Groberman J.A. that the test for granting an interlocutory injunction against Google has been met in this case. 1 Para. 148. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 114 of 143 Analysis [22] The decision to grant an interlocutory injunction is a discretionary one and entitled to a high degree of deference (Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 155-56). In this case, I see no reason to interfere. [23] Injunctions are equitable remedies. “The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited” (Ian Spry, The Principles of Equitable Remedies (9th ed. 2014), at p. 333). Robert Sharpe notes that “[t]he injunction is a flexible and drastic remedy. Injunctions are not restricted to any area of substantive law and are readily enforceable through the court’s contempt power” (Injunctions and Specific Performance (loose-leaf ed.), at para. 2.10). [24] An interlocutory injunction is normally enforceable until trial or some other determination of the action. Interlocutory injunctions seek to ensure that the subject matter of the litigation will be “preserved” so that effective relief will be available when the case is ultimately heard on the merits (Jeffrey Berryman, The Law of Equitable Remedies (2nd ed. 2013), at pp. 24-25). Their character as “interlocutory” is not dependent on their duration pending trial. [25] RJR—MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, sets out a three-part test for determining whether a court should exercise its Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 115 of 143 discretion to grant an interlocutory injunction: is there a serious issue to be tried; would the person applying for the injunction suffer irreparable harm if the injunction were not granted; and is the balance of convenience in favour of granting the interlocutory injunction or denying it. The fundamental question is whether the granting of an injunction is just and equitable in all of the circumstances of the case. This will necessarily be context-specific. [26] Google does not dispute that there is a serious claim. Nor does it dispute that Equustek is suffering irreparable harm as a result of Datalink’s ongoing sale of the GW1000 through the Internet. And it acknowledges, as Fenlon J. found, that it inadvertently facilitates the harm through its search engine which leads purchasers directly to the Datalink websites. [27] Google argues, however, that the injunction issued against it is not necessary to prevent that irreparable harm, and that it is not effective in so doing. Moreover, it argues that as a non-party, it should be immune from the injunction. As for the balance of convenience, it challenges the propriety and necessity of the extraterritorial reach of such an order, and raises freedom of expression concerns that it says should have tipped the balance against granting the order. These arguments go both to whether the Supreme Court of British Columbia had jurisdiction to grant the injunction and whether, if it did, it was just and equitable to do so in this case. [28] Google’s first argument is, in essence, that non-parties cannot be the subject of an interlocutory injunction. With respect, this is contrary to the Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 116 of 143 jurisprudence. Not only can injunctive relief be ordered against someone who is not a party to the underlying lawsuit, the contours of the test are not changed. As this Court said in MacMillan Bloedel Ltd. v. Simpson [1996] 2 S.C.R. 1048, injunctions may be issued ‘“in all cases in which it appears to the court to be just or convenient that the order should be made . . . on terms and conditions the court thinks just”’ (para. 15, citing s. 36 of the Law and Equity Act, R.S.B.C. 1979, c. 224). MacMillan Bloedel involved a logging company seeking to restrain protesters from blocking roads. The company obtained an interlocutory injunction prohibiting not only specifically named individuals, but also “John Doe, Jane Doe and Persons Unknown” and “all persons having notice of th[e] order” from engaging in conduct which interfered with its operations at specific locations. In upholding the injunction, McLachlin J. noted that [i]t may be confidently asserted . . . that both English and Canadian authorities support the view that non-parties are bound by injunctions: if non-parties violate injunctions, they are subject to conviction and punishment for contempt of court. The courts have jurisdiction to grant interim injunctions which all people, on pain of contempt, must obey. [Emphasis added; para. 31] See also Berryman, at pp. 57-60; Sharpe, at paras. 6.260 to 6.265. [29] In other words, where a non-party violates a court order, there is a principled basis for treating the non-party as if it had been bound by the order. The non-party’s obligation arises “not because [it] is bound by the injunction by being a party to the cause, but because [it] is conducting [itself] so as to obstruct the course of justice” (MacMillan Bloedel, at para. 27, quoting Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.), at p. 555). Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 117 of 143 [30] The pragmatism and necessity of such an approach was concisely explained by Fenlon J. in the case before us when she offered the following example: . . . a non-party corporation that warehouses and ships goods for a defendant manufacturing company might be ordered on an interim injunction to freeze the defendants’ goods and refrain from shipping them. That injunction could affect orders received from customers around the world. Could it sensibly be argued that the Court could not grant the injunction because it would have effects worldwide? The impact of an injunction on strangers to the suit or the order itself is a valid consideration in deciding whether to exercise the Court’s jurisdiction to grant an injunction. It does not, however, affect the Court’s authority to make such an order.2 [31] Norwich orders are analogous and can also be used to compel non-parties to disclose information or documents in their possession required by a claimant (Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), at p. 175). Norwich orders have increasingly been used in the online context by plaintiffs who allege that they are being anonymously defamed or defrauded and seek orders against Internet service providers to disclose the identity of the perpetrator (York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.)). Norwich disclosure may be ordered against non-parties who are not themselves guilty of wrongdoing, but who are so involved in the wrongful acts of others that they facilitate the harm. In Norwich, this was characterized as a duty to assist the person wronged (p. 175; Cartier International AG v. British Sky Broadcasting Ltd., [2017], 1 All E.R. 700 (C.A.), at para. 53). Norwich supplies a principled 2 Para. 147. rationale for granting injunctions against non-parties who facilitate Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 118 of 143 wrongdoing (see Cartier, at paras. 51-55; and Warner-Lambert Co. v. Actavis Group PTC EHF, 144 B.M.L.R. 194 (Ch.)). [32] This approach was applied in Cartier, where the Court of Appeal of England and Wales held that injunctive relief could be awarded against five non-party Internet service providers who had not engaged in, and were not accused of any wrongful act. The Internet service providers were ordered to block the ability of their customers to access certain websites in order to avoid facilitating infringements of the plaintiff’s trademarks. (See also Jaani Riordan, The Liability of Internet Intermediaries (2016), at pp. 412 and 498-99.) [33] The same logic underlies Mareva injunctions, which can also be issued against non-parties. Mareva injunctions are used to freeze assets in order to prevent their dissipation pending the conclusion of a trial or action (Mareva Compania Naviera SA v. International Bulkcarriers SA, [1975] 2 Lloyd’s Rep. 509 (C.A.); Aetna Financial Services Ltd. v. Feigelman, [1985] 1 S.C.R. 2). A Mareva injunction that requires a defendant not to dissipate his or her assets sometimes requires the assistance of a non-party, which in turn can result in an injunction against the nonparty if it is just and equitable to do so (Stephen Pitel and Andrew Valentine, “The Evolution of the Extra-territorial Mareva Injunction in Canada: Three Issues” (2006), 2 J. Priv. Int’l L. 339, at p. 370; Vaughan Black and Edward Babin, “Mareva Injunctions in Canada: Territorial Aspects” (1997), 28 Can. Bus. L.J. 430, at pp. 45253; Berryman, at pp. 128-31). Banks and other financial institutions have, as a result, Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 119 of 143 been bound by Mareva injunctions even when they are not a party to an underlying action. [34] To preserve Equustek’s rights pending the outcome of the litigation, Tindale J.’s order of December 13, 2012 required Datalink to cease carrying on business through the Internet. Google had requested and participated in Equustek’s obtaining this order, and offered to comply with it voluntarily. It is common ground that Datalink was unable to carry on business in a commercially viable way unless its websites were in Google’s search results. In the absence of de-indexing these websites, as Fenlon J. specifically found, Google was facilitating Datalink’s breach of Tindale J.’s order by enabling it to continue carrying on business through the Internet. By the time Fenlon J. granted the injunction against Google, Google was aware that in not de-indexing Datalink’s websites, it was facilitating Datalink’s ongoing breach of Tindale J.’s order, the purpose of which was to prevent irreparable harm to Equustek. [35] Much like a Norwich order or a Mareva injunction against a non-party, the interlocutory injunction in this case flows from the necessity of Google’s assistance in order to prevent the facilitation of Datalink’s ability to defy court orders and do irreparable harm to Equustek. Without the injunctive relief, it was clear that Google would continue to facilitate that ongoing harm. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 120 of 143 [36] Google’s next argument is the impropriety of issuing an interlocutory injunction with extraterritorial effect. But this too contradicts the existing jurisprudence. [37] The British Columbia courts in these proceedings concluded that because Google carried on business in the province through its advertising and search operations, this was sufficient to establish the existence of in personam and territorial jurisdiction. Google does not challenge those findings. It challenges instead the global reach of the resulting order. Google suggests that if any injunction is to be granted, it should be limited to Canada (or google.ca) alone. [38] When a court has in personam jurisdiction, and where it is necessary to ensure the injunction’s effectiveness, it can grant an injunction enjoining that person’s conduct anywhere in the world. (See Impulsora Turistica de Occidente, S.A. de C.V. v. Transat Tours Canada Inc., [2007] 1 S.C.R. 867, at para. 6; Berryman, at p. 20; Pitel and Valentine, at p. 389; Sharpe, at para. 1.1190; Spry, at p. 37.) Mareva injunctions have been granted with worldwide effect when it was found to be necessary to ensure their effectiveness. (See Mooney v. Orr (1994), 98 B.C.L.R. (2d) 318 (S.C.); Berryman, at pp. 20 and 136; Babanaft International Co. S.A. v. Bassatne, [1990] 1 Ch. 13 (C.A.); Republic of Haiti v. Duvalier, [1990] 1 Q.B. 202 (C.A.); Derby & Co. v. Weldon, [1990] 1 Ch. 48 (C.A.); and Derby & Co. v. Weldon (Nos. 3 and 4) [1990] 1 Ch. 65 (C.A.); Sharpe, at paras. 1.1190 to 1.1220.) [39] Groberman J.A. pointed to the international support for this approach: Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 121 of 143 I note that the courts of many other jurisdictions have found it necessary, in the context of orders against Internet abuses, to pronounce orders that have international effects. Several such cases are cited in the arguments of [International Federation of Film Producers Associations and International Federation of the Phonographic Industry], including APC v. Auchan Telecom, 11/60013, Judgment (28 November 2013) (Tribunal de Grande Instance de Paris); McKeogh v. Doe (Irish High Court, case no. 20121254P); Mosley v. Google, 11/07970, Judgment (6 November 2013) (Tribunal de Grande Instance de Paris); Max Mosley v. Google (see “Case Law, Hamburg District Court: Max Mosley v. Google Inc. online: Inform’s Blog https://inforrm.wordpress.com/ 2014/02/05/case-law-hamburg-district-court-max-mosley-v-google-incgoogle-go-down-again-this-time-in-hamburg-dominic-crossley/) and ECJ Google Spain SL, Google Inc. v. Agencia Española de Protección de Datos, Mario Costeja González, C-131/12 [2014], CURIA.3 [40] Fenlon J. explained why Equustek’s request that the order have worldwide effect was necessary as follows: The majority of GW1000 sales occur outside Canada. Thus, quite apart from the practical problem of endless website iterations, the option Google proposes is not equivalent to the order now sought which would compel Google to remove the [Datalink] websites from all search results generated by any of Google’s websites worldwide. I therefore conclude that [Equustek does] not have an out-of-court remedy available to [it].4 ... . . . to be effective, even within Canada, Google must block search results on all of its websites.5 As a result, to ensure that Google did not facilitate Datalink’s breach of court orders whose purposes were to prevent irreparable harm to Equustek, she concluded that the injunction had to have worldwide effect. 3 Para. 95. Para. 76. 5 Para. 148. 4 Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 122 of 143 [41] I agree. The problem in this case is occurring online and globally. The Internet has no borders — its natural habitat is global. The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates — globally. As Fenlon J. found, the majority of Datalink’s sales take place outside Canada. If the injunction were restricted to Canada alone or to google.ca, as Google suggests it should have been, the remedy would be deprived of its intended ability to prevent irreparable harm. Purchasers outside Canada could easily continue purchasing from Datalink’s websites, and Canadian purchasers could easily find Datalink’s websites even if those websites were de-indexed on google.ca. Google would still be facilitating Datalink’s breach of the court’s order which had prohibited it from carrying on business on the Internet. There is no equity in ordering an interlocutory injunction which has no realistic prospect of preventing irreparable harm. [42] The interlocutory injunction in this case is necessary to prevent the irreparable harm that flows from Datalink carrying on business on the Internet, a business which would be commercially impossible without Google’s facilitation. The order targets Datalink’s websites — the list of which has been updated as Datalink has sought to thwart the injunction — and prevents them from being displayed where they do the most harm: on Google’s global search results. [43] Nor does the injunction’s worldwide effect tip the balance of convenience in Google’s favour. The order does not require that Google take any steps around the Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 123 of 143 world, it requires it to take steps only where its search engine is controlled. This is something Google has acknowledged it can do — and does — with relative ease. There is therefore no harm to Google which can be placed on its “inconvenience” scale arising from the global reach of the order. [44] Google’s argument that a global injunction violates international comity because it is possible that the order could not have been obtained in a foreign jurisdiction, or that to comply with it would result in Google violating the laws of that jurisdiction is, with respect, theoretical. As Fenlon J. noted, “Google acknowledges that most countries will likely recognize intellectual property rights and view the selling of pirated products as a legal wrong”. 6 [45] And while it is always important to pay respectful attention to freedom of expression concerns, particularly when dealing with the core values of another country, I do not see freedom of expression issues being engaged in any way that tips the balance of convenience towards Google in this case. As Groberman J.A. concluded: In the case before us, there is no realistic assertion that the judge’s order will offend the sensibilities of any other nation. It has not been suggested that the order prohibiting the defendants from advertising wares that violate the intellectual property rights of the plaintiffs offends the core values of any nation. The order made against Google is a very limited ancillary order designed to ensure that the plaintiffs’ core rights are respected. 6 Para. 144. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 124 of 143 . . . the order in this case is an interlocutory one, and one that can be varied by the court. In the unlikely event that any jurisdiction finds the order offensive to its core values, an application could be made to the court to modify the order so as to avoid the problem.7 [46] If Google has evidence that complying with such an injunction would require it to violate the laws of another jurisdiction, including interfering with freedom of expression, it is always free to apply to the British Columbia courts to vary the interlocutory order accordingly. To date, Google has made no such application. [47] In the absence of an evidentiary foundation, and given Google’s right to seek a rectifying order, it hardly seems equitable to deny Equustek the extraterritorial scope it needs to make the remedy effective, or even to put the onus on it to demonstrate, country by country, where such an order is legally permissible. We are dealing with the Internet after all, and the balance of convenience test has to take full account of its inevitable extraterritorial reach when injunctive relief is being sought against an entity like Google. [48] This is not an order to remove speech that, on its face, engages freedom of expression values, it is an order to de-index websites that are in violation of several court orders. We have not, to date, accepted that freedom of expression requires the facilitation of the unlawful sale of goods. 7 Paras. 93-94. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 125 of 143 [49] And I have trouble seeing how this interferes with what Google refers to as its content neutral character. The injunction does not require Google to monitor content on the Internet, nor is it a finding of any sort of liability against Google for facilitating access to the impugned websites. As for the balance of convenience, the only obligation the interlocutory injunction creates is for Google to de-index the Datalink websites. The order is, as Fenlon J. observed, “only a slight expansion on the removal of individual URLs, which Google agreed to do voluntarily”. 8 Even if it could be said that the injunction engages freedom of expression issues, this is far outweighed by the need to prevent the irreparable harm that would result from Google’s facilitating Datalink’s breach of court orders. [50] Google did not suggest that it would be inconvenienced in any material way, or would incur any significant expense, in de-indexing the Datalink websites. It acknowledges, fairly, that it can, and often does, exactly what is being asked of it in this case, that is, alter search results. It does so to avoid generating links to child pornography and websites containing “hate speech”. It also complies with notices it receives under the US Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2680 (1998) to de-index content from its search results that allegedly infringes copyright, and removes websites that are subject to court orders. [51] As for the argument that this will turn into a permanent injunction, the length of an interlocutory injunction does not, by itself, convert its character from a 8 Para. 137. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 126 of 143 temporary to a permanent one. As previously noted, the order requires that the injunction be in place “until the conclusion of the trial of this action or further order of this court”. There is no reason not to take this order at face value. Where an interlocutory injunction has been in place for an inordinate amount of time, it is always open to a party to apply to have it varied or vacated. Google has brought no such application. [52] Datalink and its representatives have ignored all previous court orders made against them, have left British Columbia, and continue to operate their business from unknown locations outside Canada. Equustek has made efforts to locate Datalink with limited success. Datalink is only able to survive — at the expense of Equustek’s survival — on Google’s search engine which directs potential customers to its websites. In other words, Google is how Datalink has been able to continue harming Equustek in defiance of several court orders. [53] This does not make Google liable for this harm. It does, however, make Google the determinative player in allowing the harm to occur. On balance, therefore, since the interlocutory injunction is the only effective way to mitigate the harm to Equustek pending the resolution of the underlying litigation, the only way, in fact, to preserve Equustek itself pending the resolution of the underlying litigation, and since any countervailing harm to Google is minimal to non-existent, the interlocutory injunction should be upheld. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 127 of 143 [54] I would dismiss the appeal with costs in this Court and in the Court of Appeal for British Columbia. The following are the reasons delivered by CÔTÉ AND ROWE JJ. — [55] Equustek Solutions Inc., Robert Angus and Clarma Enterprises Inc. (“Equustek”) seek a novel form of equitable relief ― an effectively permanent injunction, against an innocent third party, that requires court supervision, has not been shown to be effective, and for which alternative remedies are available. Our response calls for judicial restraint. While the court had jurisdiction to issue the June 13, 2014 order against Google Inc. (“Google Order”) (2014 BCSC 1063, 374 D.L.R. (4th) 537, per Fenlon J.), in our view it should have refrained from doing so. The authority to grant equitable remedies has always been constrained by doctrine and practice. In our view, the Google Order slipped too easily from these constraints. [56] As we will explain, the Google Order is effectively final redress against a non-party that has neither acted unlawfully, nor aided and abetted illegal action. The test for interlocutory injunctions established in RJR ― MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, does not apply to an order that is effectively final, and the test for a permanent injunction has not been satisfied. The Google Order Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 128 of 143 is mandatory and requires court supervision. It has not been shown to be effective, and there are alternative remedies available to Equustek. I. [57] Judicial Restraint The power of a court to grant injunctive relief is derived from that of the Chancery courts of England (Fourie v. Le Roux, [2007] UKHL 1, [2007] 1 All E.R. 1087, at para. 30), and has been confirmed in British Columbia by the Law and Equity Act, R.S.B.C. 1996, c. 253, s. 39(1): 39 (1) An injunction or an order in the nature of mandamus may be granted or a receiver or receiver manager appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made. [58] In Fourie, Lord Scott explained that “provided the court has in personam jurisdiction over the person against whom an injunction, whether interlocutory or final, is sought, the court has jurisdiction, in the strict sense, to grant it” (para. 30). However, simply because a court has the jurisdiction to grant an injunction does not mean that it should. A court “will not according to its settled practice do so except in a certain way and under certain circumstances” (Lord Scott, at para. 25, quoting from Guaranty Trust Co. of New York v. Hannay & Co., [1915] 2 K.B. 536, at p. 563; see also Cartier International AG v. British Sky Broadcasting Ltd., 2014 EWHC 3354 (Ch.), [2015] 1 All E.R. 949, at paras. 98-100). Professor Spry comes to similar Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 129 of 143 conclusions (I. C. F. Spry, The Principles of Equitable Remedies (9th ed. 2014), at p. 333): The powers of courts with equitable jurisdiction to grant injunctions are, subject to any relevant statutory restrictions, unlimited. Injunctions are granted only when to do so accords with equitable principles, but this restriction involves, not a defect of powers, but an adoption of doctrines and practices that change in their application from time to time. [Footnote omitted.] [59] The importance of appropriately modifying judicial restraint to meet the needs of justice was summarized by Lord Nicholls in Mercedes Benz A.G. v. Leiduck, [1996] 1 A.C. 284 (P.C.), at p. 308: “As circumstances in the world change, so must the situations in which the courts may properly exercise their jurisdiction to grant injunctions. The exercise of the jurisdiction must be principled, but the criterion is injustice.” [60] Changes to “settled practice” must not overshoot the mark of avoiding injustice. In our view, granting the Google Order requires changes to settled practice that are not warranted in this case: neither the test for an interlocutory nor a permanent injunction has been met; court supervision is required; the order has not been shown to be effective; and alternative remedies are available. II. Factors Suggesting Restraint in This Case A. The Effects of the Google Order Are Final Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 130 of 143 [61] In RJR ― MacDonald, this Court set out the test for interlocutory injunctions ― a serious question to be tried, irreparable harm, and the balance of convenience ― but also described an exception (at pp. 338-39): Two exceptions apply to the general rule that a judge should not engage in an extensive review of the merits. The first arises when the result of the interlocutory motion will in effect amount to a final determination of the action. This will be the case either when the right which the applicant seeks to protect can only be exercised immediately or not at all, or when the result of the application will impose such hardship on one party as to remove any potential benefit from proceeding to trial. ... The circumstances in which this exception will apply are rare. When it does, a more extensive review of the merits of the case must be undertaken. Then when the second and third stages of the test are considered and applied the anticipated result on the merits should be borne in mind. [Emphasis added.] [62] In our view, the Google Order “in effect amount[s] to a final determination of the action” because it “remove[s] any potential benefit from proceeding to trial”. In order to understand this conclusion, it is useful to review Equustek’s underlying claim. Equustek sought, in its Further Amended Notice of Civil Claim against Datalink, damages, declarations, and: A temporary and permanent injunction restraining the Defendants from: a. using the Plaintiffs’ trademarks and free-riding on the goodwill of any Equustek products on any website; b. making statements disparaging or in any way referring to the Equustek products; Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 131 of 143 c. distributing the offending manuals and displaying images of the Plaintiff’s products on any website; and d. selling the GW1000 line of products which were created by the theft of the Plaintiff’s trade secrets; and obliging them to: e. immediately disclose all hidden websites; f. display a page on all websites correcting [their] misrepresentations about the source and continuing availability of the Equustek products and directing customers to Equustek. In short, Equustek sought injunctions modifying the way in which Datalink carries out its website business, along with damages and declarations. On June 20, 2012, Datalink’s response was struck and Equustek was given leave to apply for default judgment. It has not done so. On December 13, 2012, Justice Tindale ordered that [t]he Defendants Morgan Jack, Datalink Technologies Gateways Inc. and Datalink Technologies Gateways LLC (the “Datalink Defendants”) cease operating or carrying on business through any website, including those contained in Schedule “A” and all associated pages, subpages and subdirectories, and that these Defendants immediately take down all such websites, until further order of this court. [“December 2012 Order”] The December 2012 Order gives Equustek more than the injunctive relief it sought in its originating claim. Rather than simply ordering the modification of Datalink websites, the December 2012 Order requires the ceasing of website business altogether. In our view, little incentive remains for Equustek to return to court to seek a lesser injunctive remedy. This is evidenced by Equustek’s choice to not seek default Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 132 of 143 judgment during the roughly five years which have passed since it was given leave to do so. [63] As for the Google Order, it provides Equustek with an additional remedy, beyond the December 2012 Order and beyond what was sought in its original claim. In our view, granting of the Google Order further erodes any remaining incentive for Equustek to proceed with the underlying action. The effects of the Google Order are final in nature. Respectfully, the pending litigation assumed by our colleague Abella J. is a fiction. The Google Order, while interlocutory in form, is final in effect. Thus, it gives Equustek more relief than it sought. [64] its Procedurally, Equustek requested an interlocutory order in the course of litigation with Datalink. While Equustek’s action against Datalink could technically endure indefinitely (G.P. Fraser, J.W. Horn and S.A. Griffin, The Conduct of Civil Litigation in British Columbia (2nd ed. (loose-leaf)), at § 14.1) ― and thus the interlocutory status of the injunction could technically endure indefinitely ― it does not follow that the Google Order should be considered interlocutory. Courts of equity look to substance over form, because “a dogged devotion to form has often resulted in injustice” (John Deere Ltd. v. Firdale Farms Ltd. (1987), 45 D.L.R. (4th) 641 (Man. C.A.), at p. 645). In Parkin v. Thorold (1852), 16 Beav. 59, 51 E.R. 698, at p. 701, Lord Romilly explained it thus: . . . Courts of Equity make a distinction in all cases between that which is matter of substance and that which is matter of form; and, if [they do] find that by insisting on the form, the substance will be defeated, [they Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 133 of 143 hold] it to be inequitable to allow a person to insist on such form, and thereby defeat the substance. In our view, the substance of the Google Order amounts to a final remedy. As such, it provides Equustek with more equitable relief than it sought against Datalink, and amounts to final resolution via Google. It is, in effect, a permanent injunction. [65] Following RJR ― MacDonald (at pp. 338-39), an extensive review of the merits is therefore required at the first stage of the analysis (Schooff v. British Columbia (Medical Services Commission), 2010 BCCA 396, 323 D.L.R. (4th) 680, at paras. 26-27). Yet this was not done. When Justice Fenlon considered Equustek’s application for an interim injunction enjoining Google to cease indexing or referencing Datalink’s websites, she did not conduct an extensive review of the merits. She did however note that Equustek had raised an arguable case, and that Datalink was presumed to have admitted the allegations when its defenses were struck (para. 151). The rule is not immutable that if a statement of defense is struck, the defendant is deemed to have admitted the allegations contained in the statement of claim. While the facts relating to Datalink’s liability are deemed to be admitted, the court can still exercise its discretion in assessing Equustek’s claims (McIsaac v. Healthy Body Services Inc., 2009 BCSC 1716, at paras. 42 and 44 (CanLII); Plouffe v. Roy, 2007 CanLII 37693 (Ont. S.C.J.), at para. 53; Spiller v. Brown (1973), 43 D.L.R. (3d) 140 (Alta. S.C. (App. Div.)), at p. 143). Equustek has avoided such an assessment. Thus, an extensive review of the merits was not carried out. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 134 of 143 [66] The Google Order also does not meet the test for a permanent injunction. To obtain a permanent injunction, a party is required to establish: (1) its legal rights; (2) that damages are an inadequate remedy; and (3) that there is no impediment to the court’s discretion to grant an injunction (1711811 Ontario Ltd. v. Buckley Insurance Brokers Ltd., 2014 ONCA 125, 371 D.L.R. (4th) 643, at paras. 74-80; Spry, at pp. 395 and 407-8). Equustek has shown the inadequacy of damages (damages are ascertainable but unlikely to be recovered, and the wrong is continuing). However, in our view, it is unclear whether the first element of the test has been met. Equustek’s claims were supported by a good prima facie case, but it was not established that Datalink designed and sold counterfeit versions of its product, or that this resulted in trademark infringement and unlawful appropriation of trade secrets. [67] In any case, the discretionary factors affecting the grant of an injunction strongly favour judicial restraint. As we will outline below, the Google Order enjoins a non-party, yet Google has not aided or abetted Datalink’s wrongdoing; it holds no assets of Equustek’s, and has no information relevant to the underlying proceedings. The Google Order is mandatory and requires court supervision. It has not been shown to be effective, and Equustek has alternative remedies. B. [68] Google Is a Non-Party A court order does not “technically” bind non-parties, but “anyone who disobeys the order or interferes with its purpose may be found to have obstructed the course of justice and hence be found guilty of contempt of court” (MacMillan Bloedel Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 135 of 143 Ltd. v. Simpson, [1996] 2 S.C.R. 1048, at paras. 23 and 27). In MacMillan Bloedel, the injunction prohibiting named individuals from blocking a logging road also caused non-parties to face contempt proceedings for doing the act prohibited by the injunction. [69] The instant case is not one where a non-party with knowledge of a court order deliberately disobeyed it and thereby deprecated the court’s authority. Google did not carry out the act prohibited by the December 2012 Order. The act prohibited by the December 2012 Order is Datalink “carrying on business through any website”. That act occurs whenever Datalink launches websites to carry out business ― not when other parties, such as Google, make it known that such websites exist. [70] There is no doubt that non-parties also risk contempt proceedings by aiding and abetting the doing of a prohibited act (Seaward v. Paterson, [1897] 1 Ch. 545 (C.A.); D. Bean, A. Burns and I. Parry, Injunctions (11th ed. 2012), at para. 908). Lord Denning said in Acrow (Automation) Ltd. v. Rex Chainbelt Inc., [1971] 1 W.L.R. 1676 (C.A.), at p. 1682: It has long been held that the court has jurisdiction to commit for contempt a person, not a party to the action, who, knowing of an injunction, aids and abets the defendant in breaking it. The reason is that by aiding and abetting the defendant, he is obstructing the course of justice. [71] In our view, Google did not aid or abet the doing of the prohibited act. Equustek alleged that Google’s search engine was facilitating Datalink’s ongoing Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 136 of 143 breach by leading customers to Datalink websites (Fenlon J.’s reasons, at para. 10). However, the December 2012 Order was to cease carrying on business through any website. That Order was breached as soon as Datalink established a website to conduct its business, regardless of how visible that website might be through Google searches. If Equustek’s argument were accepted, the scope of “aids and abets” would, in our view, become overbroad. It might include the companies supplying Datalink with the material to produce the derivative products, the companies delivering the products, or as Google argued in its factum, it might also include the local power company that delivers power to Datalink’s physical address. Critically, Datalink breached the December 2012 Order simply by launching websites to carry out business, regardless of whether Google searches ever reveal the websites. [72] We agree with our colleague Justice Abella that Mareva injunctions and Norwich orders can operate against non-parties. However, we respectfully disagree that the Google Order is similar in nature to those remedies. Mareva injunctions are granted to freeze assets until the completion of a trial ― they do not enforce a plaintiff’s substantive rights (Mercedes Benz, at p. 302). In contrast, the Google Order enforces Equustek’s asserted intellectual property rights by seeking to minimize harm to those rights. It does not freeze Datalink’s assets (and, in fact, may erode those assets). Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 137 of 143 [73] Norwich orders are made to compel information from third parties. In Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (H.L.), at p. 175, Lord Reid identified a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. Lord Reid found that “without certain action on [Customs’] part the infringements could never have been committed” (at 174). In spite of this finding, the court did not require Customs to take specific action to prevent importers from infringing the patent of Norwich Pharmacal; rather the court issued a limited order compelling Customs to disclose the names of importers. In Cartier, the court analogized from Norwich to support an injunction requiring Internet service providers (“ISPs”) to block access to trademark-infringing websites because “it is via the ISPs’ services” that customers view and purchase the infringing material (para. 155). That injunction did not extend to parties merely assisting in finding the websites. [74] In the case at bar, we are of the view that Google does not play a role in Datalink’s breach of the December 2012 Order. Whether or not the December 2012 Order is violated does not hinge on the degree of success of the prohibited website business. Rather, the December 2012 Order is violated merely by Datalink conducting business through a website, regardless of the visibility of that website or the number of customers that visit the website. Thus Google does not play a role Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 138 of 143 analogous to Customs in Norwich nor the ISPs in Cartier. And unlike the order in Norwich, the Google Order compels positive action aimed at the illegal activity rather than simply requiring the provision of information to the court. C. [75] The Google Order Is Mandatory While the distinction between mandatory and prohibitive injunctions has been questioned (see National Commercial Bank of Jamaica Ltd. v. Olint Corp., [2009] 1 W.L.R. 1405 (P.C.), at para. 20), courts have rightly, in our view, proceeded cautiously where an injunction requires the defendant to incur additional expenses to take positive steps (Redland Bricks Ltd. v. Morris, [1970] A.C. 652 (H.L.), at pp. 665-66; J. Berryman, The Law of Equitable Remedies (2nd ed. 2013), at pp. 199200). Also relevant to the decision of whether to grant a mandatory injunction is whether it might require continued supervision by the courts, especially where the terms of the order cannot be precisely drawn and where it may result in wasteful litigation over compliance (Co-operative Insurance Society Ltd. v. Argyll Stores (Holdings) Ltd., [1998] A.C. 1 (H.L.). [76] The Google Order requires ongoing modification and supervision because Datalink is launching new websites to replace de-listed ones. In fact, the Google Order has been amended at least seven times to capture Datalink’s new sites (orders dated November 27, 2014; April 22, 2015; June 4, 2015; July 3, 2015; September 15, 2015; January 12, 2016 and March 30, 2016). In our view, courts Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 139 of 143 should avoid granting injunctions that require such cumbersome court-supervised updating. D. [77] The Google Order Has Not Been Shown To Be Effective A court may decline to grant an injunction on the basis that it would be futile or ineffective in achieving the purpose for which it is sought (Spry, at pp. 419-20; Berryman, at p. 113). For example, in Attorney General v. Observer Ltd., [1990] 1 A.C. 109 (H.L.), the Spycatcher memoirs of an M.I.5 agent were already readily available, thus making a perpetual injunction against publication by the defendant newspapers ineffective. [78] In our view, the Google Order is not effective in enforcing the December 2012 Order. It is recalled that the December 2012 Order requires that Datalink “cease operating or carrying on business through any website” — it says nothing about the visibility or success of the website business. The December 2012 Order is violated as soon as Datalink launches websites to carry on business, regardless of whether those websites appear in a Google search. Moreover, the Google Order does not assist Equustek in modifying the Datalink websites, as Equustek sought in its originating claim for injunctive relief. [79] The most that can be said is that the Google Order might reduce the harm to Equustek which Fenlon J. found “Google is inadvertently facilitating” (para. 152). But it has not been shown that the Google Order is effective in doing so. As Google Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 140 of 143 points out, Datalink’s websites can be found using other search engines, links from other sites, bookmarks, email, social media, printed material, word-of-mouth, or other indirect means. Datalink’s websites are open for business on the Internet whether Google searches list them or not. In our view, this lack of effectiveness suggests restraint in granting the Google Order. [80] Moreover, the quest for elusive effectiveness led to the Google Order having worldwide effect. This effect should be taken into consideration as a factor in exercising discretion. Spry explains that territorial limitations to equitable jurisdiction are “to some extent determined by reference to questions of effectiveness and of comity” (p. 37). While the worldwide effect of the Google Order does not make it more effective, it could raise concerns regarding comity. E. [81] Alternatives Are Available Highlighting the lack of effectiveness are the alternatives available to Equustek. An equitable remedy is not required unless there is no other appropriate remedy at law (Spry, at pp. 402-3). In our view, Equustek has an alternative remedy in law. Datalink has assets in France. Equustek sought a world-wide Mareva injunction to freeze those assets, but the Court of Appeal for British Columbia urged Equustek to pursue a remedy in French courts: “At present, it appears that the proposed defendants reside in France . . . . The information before the Court is that French courts will assume jurisdiction and entertain an application to freeze the assets in that country” (2016 BCCA 190, 88 B.C.L.R. (5th) 168, at para. 24). We see no Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 141 of 143 reason why Equustek cannot do what the Court of Appeal urged it to do. Equustek could also pursue injunctive relief against the ISPs, as was done in Cartier, in order to enforce the December 2012 Order. In addition, Equustek could initiate contempt proceedings in France or in any other jurisdiction with a link to the illegal websites. III. Conclusion [82] For these reasons, we are of the view that the Google Order ought not to have been granted. We would allow the appeal and set aside the June 13, 2014 order of the Supreme Court of British Columbia. Appeal dismissed with costs, CÔTÉ and ROWE JJ. dissenting. Solicitors for the appellant: Lenczner Slaght Royce Smith Griffin, Toronto. Solicitors for the respondents: Robert Fleming Lawyers, Vancouver; Michael Sobkin, Ottawa. Solicitor for the intervener the Attorney General of Canada: Attorney General of Canada, Ottawa. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 142 of 143 Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto. Solicitors for the intervener the Canadian Civil Liberties Association: Blake, Cassels & Graydon, Vancouver. Solicitor for the intervener the OpenMedia Engagement Network: Cynthia Khoo, Vancouver. Solicitors for the interveners the Reporters Committee for Freedom of the Press, the American Society of News Editors, the Association of Alternative Newsmedia, The Center for Investigative Reporting, Dow Jones & Company, Inc., the First Amendment Coalition, First Look Media Works, Inc., the New England First Amendment Coalition, the News Media Alliance (formerly known as the Newspaper Association of America), AOL Inc., the California Newspaper Publishers Association, The Associated Press, The Investigative Reporting Workshop at American University, the Online News Association and the Society of Professional Journalists: Blake, Cassels & Graydon, Toronto. Solicitors for the interveners Human Rights Watch, ARTICLE 19, Open Net (Korea), the Software Freedom Law Centre and the Center for Technology and Society: Blake, Cassels & Graydon, Toronto. Case 5:17-cv-04207 Document 1 Filed 07/24/17 Page 143 of 143 Solicitors for the intervener the Wikimedia Foundation: McInnes Cooper, Halifax. Solicitors for the intervener the British Columbia Civil Liberties Association: Stockwoods, Toronto. Solicitors for the intervener the Electronic Frontier Foundation: MacPherson Leslie & Tyerman, Vancouver; Fasken Martineau DuMoulin, Vancouver. Solicitors for the interveners the International Federation of the Phonographic Industry, Music Canada, the Canadian Publishers’ Council, the Association of Canadian Publishers, the International Confederation of Societies of Authors and Composers, the International Confederation of Music Publishers and the Worldwide Independent Network: McCarthy Tétrault, Toronto. Solicitors for the intervener the International Federation of Film Producers Associations: MacKenzie Barristers, Toronto.