On February 18, 2016, the Supreme Court of Canada granted leave to Google Inc. to appeal the decision in Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265, an important decision regarding the power of Canadian courts to grant orders with worldwide effect.
In Equustek, the BC Court of Appeal upheld an injunction restraining Google from referencing a number of websites in its search results. The Court awarded the injunction in order to limit public access to websites that the defendants had been using to advertise and sell products in breach of the plaintiffs' intellectual property rights. Google was not a party to the underlying litigation. The injunction was designed to ensure that court orders already granted against the defendants would be effective.
The injunction required compliance not only with Google results displayed in Canada, but results displayed anywhere in the world.
As we wrote in our previous post concerning Equustek, the Court of Appeal's decision was significant for several reasons. First, it outlined a two-step approach for courts considering an injunction sought against a non-party, such as a search engine: determining the power of the court over the dispute generally, and then determining if the court has jurisdiction over the third party.
In Equustek, both requirements were met. Most interestingly, the basis for determining jurisdiction over Google, the third party, did not turn on the facts of the case, but instead turned on Google's business conduct in BC—a determination unlikely to change in later cases.
The decision has significant consequences for comity concerns and BC courts' relationship with international third parties. It is also important for entities and individuals looking for tools to protect their intellectual property rights in an era where cross-border advertising and product distribution are frequently done with ease—and can often be done with impunity.
In granting leave, the Supreme Court of Canada has implicitly agreed that these issues are of national importance. We agree with the Court and will be following the appeal with great interest.
Click here to read our previous post on the Court of Appeal's decision.
Click here to read the BC Court of Appeal's reasons in Equustek.
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