June 13, 2014
Equustek Solutions Inc v Jack 2014 BCSC 1063
The plaintiffs, Equustek, applied for an interim injunction restraining two non-parties, Google Inc. and Google Canada Corporation, from including the defendants’ websites in search results generated by Google’s search engines.
Equustek and the defendant manufacture networking devices for industrial equipment. Equustek alleges that the defendant conspired with a former Equustek employee to steal its product design and sell it on the internet.
Equustek had already obtained a court order requiring Google to remove the defendants websites from its Canadian search results.
The underlying action was commenced in April 2011 and the defendants had failed to comply with various court orders from the outset of proceedings.
The application raised novel questions about the Court’s authority to make such a order against a global internet service provider.
Fenlon J. concludes that s. 10(a) of the Court Jurisdiction and Proceedings Transfer Act [SBC 2003] Chapter 28, is applicable on the facts in this case:
…(a) is brought to enforce, assert, declare or determine proprietary or possessory rights or a security interest in property in British Columbia that is immovable or movable property,…
And, that s. 10(h) “is also a connecting factor, and a stronger one…”
s. 10(h) states:
…concerns a business carried on in British Columbia,
Fenlon J states that Google was found to have been doing business in BC by virtue of the ads it sells for BC businesses and the internet search results it provides.
Citing a recent decision from the European Court of Justice, in Google Spain SL and Google Inc. v. Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez, C-131/12,Madam Justice Fenlon concluded that the Court has territorial competence over Google on the application brought by Equustek.
When examining the question of whether California would be a more appropriate forum, as argued by Google, Fenlon J. found that:
…Google bears the burden of proof at this stage of the analysis and has provided no support for that proposition.
In deciding whether the order should be granted, Fenlon J. looked at two issues: 1) Can an order be made against a non-party? 2) Should the order be made against Google?
On issue 1) Fenlon J. concludes that the Court has authority to grant an injunction against a non-party resident in a foreign jurisdiction in appropriate circumstances.
…The fact than an injunction has not before been made against an internet search provider such as Google is reason to tread carefully, but does not establish that the Court does not have subject matter competence.
Fenlon J. goes on to say:
…The Court must adapt to the reality of e-commerce with its potential for abuse by those who would take the property of others and sell it through the borderless electronic web of the internet. I conclude that an interim injunction should be granted compelling Google to block the defendants’ websites from Google’s search results worldwide. That order is necessary to preserve the Court’s process and to ensure that the defendants cannot continue to flout the Court’s orders.