Supreme Court


Remedies

Injunctions

Form and operation of order

Injunction with worldwide effect was only to way to protect against irreparable harm

D Inc. was distributor of E Inc.’s networking devices. After D Inc. allegedly used E Inc.’s trade secrets and conspired with others to design and manufacture competing product it shipped to customers ordering E Inc.’s products, E Inc. brought action against D Inc. and obtained interlocutory injunction freezing D Inc.’s assets and prohibiting D Inc. from using E Inc.’s intellectual property. D Inc. left jurisdiction without complying. After E Inc. obtained order prohibiting D Inc. from carrying on business on Internet, non-party, G Inc., de-indexed D Inc.’s Canadian websites. D Inc. moved content to new pages so customers could access websites through G Inc.’s non-Canadian URLs. E Inc. obtained interim injunction from BC Supreme Court (BCSC) compelling G Inc. to globally de-index D Inc.’s websites. BCSC held that injunction with worldwide effect was only way to protect E Inc. from irreparable harm. BC Court of Appeal (BCCA) dismissed G Inc.’s appeal, finding injunction did not violate principles of comity, that there was sufficient basis to uphold finding that G Inc. did business in BC and that BCSC had in personam jurisdiction over G Inc., that BCSC had inherent jurisdiction to grant injunction with extra-territorial effect against non-party resident in foreign jurisdiction, and that injunction was only practical way to prevent D Inc. from flouting court’s orders. BCCA found that underlying action met Supreme Court of Canada’s RJR-MacDonald test for interlocutory injunction. G Inc. appealed. Appeal dismissed. Court with in personam jurisdiction could grant injunction enjoining that person’s conduct anywhere in world where it was necessary to ensure injunction’s effectiveness. Internet had no borders: its natural habitat was global. Only way to ensure interlocutory injunction attained its objective was to have it apply where G Inc. operated: globally. Injunction restricted to Canada or G Inc.ca would not prevent irreparable harm. Order only required G Inc. to make changes where search engine was controlled, something G Inc. did with ease, so there was no harm to G Inc. on “inconvenience” scale arising from global reach of order. It remained open to G Inc. to have order varied or vacated but G Inc. had not done so.

Google Inc. v. Equustek Solutions Inc. (2017), 2017 CarswellBC 1727, 2017 CarswellBC 1728, 2017 SCC 34, 2017 CSC 34, McLachlin C.J.C., Abella J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., Brown J., and Rowe J. (S.C.C.); affirmed (2015), 2015 CarswellBC 1590, 2015 BCCA 265, Frankel J.A., Groberman J.A., and Harris J.A. (B.C. C.A.).

 


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