Canada: The New Frontier Of Jurisdiction: Supreme Court Of Canada Upholds Worldwide Injunction Against Google

Last Updated: July 3 2017
Article by Peter Wells, C.S., Stephen Brown-Okruhlik and Samantha Gordon

The Supreme Court of Canada released its much anticipated decision this week in Equustek v. Google Inc., an appeal by Internet giant Google of an order requiring it to change its search engine results worldwide.1 The Internet and its complex global network of information and commerce pose certain challenges to traditional notions of territorial jurisdiction. The decision in Equustek confirms the wide breadth of Canadian courts' power to grant orders with extraterritorial effects, including against innocent non-parties to the underlying dispute. While this decision may depart in some respects from the approach that other countries' courts have taken, it remains to be seen what framework Canadian law will develop to guide when such orders should be granted (and when not).

The Case

The Supreme Court's decision concerns an injunction against Google that is ancillary to the plaintiff's main law suit. Equustek Solutions Inc. is a small technology company in B.C. that manufactures devices used in complex industrial equipment. It alleges that the defendants in the main action, including a company called Datalink, stole its confidential information and trade secrets and were selling Equustek's product as their own to online customers. Equustek obtained various orders aimed at curbing Datalink's illegal behaviour. Datalink eventually abandoned the law suit and fled B.C.. Datalink continues to conduct online sales from unknown locations abroad. Equustek asked Google to de-index Datalink's website so that it would not appear in the results of Google searches. Google offered some cooperation, removing individual webpages from searches conducted only on the Canadian version of the search engine, As most of the illegal sales occur abroad, Equustek was not satisfied and brought an application in B.C. for an injunction requiring Google to remove Datalink's website from the results of all Google searches worldwide.

Both the B.C. Supreme Court and Court of Appeal considered whether they had jurisdiction to grant the order, which would require Google to take steps in California that would affect searches conducted anywhere in the world. Both courts held that the company's considerable business presence in the province, including advertising and revenue streams as well as the interactive nature of its website, gave the Court in personam jurisdiction over Google. Citing precedent, both courts held that an order can have effects outside of the court's territorial jurisdiction where the court has in personam jurisdiction over the party that is being enjoined. Accordingly, the order was granted and upheld on appeal. The Court of Appeal considered Google's arguments about territorial overreach. It held that the principle of 'comity' (which is the general deference and respect of each nation's courts for the acts and jurisdiction of others) must be considered in determining the proper scope of an order with extraterritorial effects.2

The Supreme Court of Canada's Decision

Justice Abella, writing for a seven judge majority of the Supreme Court, upheld the injunction against Google. In doing so she mostly adopted the analysis of the courts below, including as to the effect and operation of in personam jurisdiction.

The majority's focus was largely on the test for granting injunctions, which requires (i) there be a serious issue to be tried, (ii) there would be irreparable harm if the injunction were not granted, and (iii) the balance of convenience to the parties favours granting the injunction. Google challenged the injunction on the basis that it would be ineffective, would have unnecessary and inappropriate extraterritorial reach, and raised issues of free speech.

The majority cited previous decisions upholding the power of courts to grant injunctions that bind innocent third parties. It also cited cases where courts granted injunctions with international effects. The majority observed that courts frequently make orders that compel third parties to assist in curbing bad behaviour, including Norwich orders (which can compel third parties to provide information) and Mareva injunctions (which can require third parties to freeze defendants' assets). Just as in those cases, here it was necessary to get the help of an innocent third party, Google, to prevent the defendants' breach of the B.C. court's orders.

Finally, the majority dismissed Google's arguments about comity as "theoretical", agreeing with the Court of Appeal that there was no realistic chance of the injunction offending the sensibilities of another nation, and that the injunction could be modified if that were to happen.

Justices Côté and Rowe wrote a dissenting opinion. They took the view that the Google injunction should not have been granted because it would effectively be a final resolution of the dispute. The injunction granted more equitable relief than Equustek sought in its main law suit against the defendants, so Equustek would have no incentive to continue prosecuting its claim. The injunction would also require ongoing court supervision to be enforced. The dissenting justices also questioned whether this was a proper case to enjoin a non-party at all because Google was not, in their view, aiding and abetting the defendants' wrongdoing. Finally, there were alternative remedies available that Equustek had not pursued. The dissenting justices also noted that the worldwide effect of the Google injunction "could raise concerns regarding comity", though they did not explore these concerns.

The (Untraveled) Road Ahead

The Equustek case brought into sharp relief a tension between two trends in the law surrounding the power to grant orders with extraterritorial effects. On the one hand, the Supreme Court of Canada and other appellate courts have previously stressed the need to fashion effective remedies to address wrongs committed online. In the 2007 Pro Swing Inc. v. ELTA Golf Inc. decision, Chief Justice McLaughlin, writing for a majority of a Supreme Court, noted that private international law (the body of law that addresses issues of overlapping jurisdiction) must evolve to take account of modern realities, including a constant flow of products, wealth and people across the globe. She held that "in the proper case, the limits of the courts' jurisdiction should be expanded, not narrowed."3 Similarly, in Barrick Gold v. Lopehandia the Ontario Court of Appeal rejected the notion that courts should "throw up their collective hands in despair, taking the view that enforcement against such ephemeral transmission [on the Internet] around the world is ineffective."4 On the other hand, the use of in personam jurisdiction to compel parties' behaviour abroad has long been exercised with restraint, as courts have recognized the inherent risk of territorial overreach. In Pro Swing, the Supreme Court of Canada noted a natural tendency towards judicial overreach caused by the arrival of the Internet. It cautioned that "[e]xtraterritoriality and comity cannot serve as a substitute for a lack of worldwide trademark protection. The Internet poses new challenges to trademark holders, but equitable jurisdiction cannot solve all their problems."5 With its decision in Equustek, the Supreme Court appears to have pushed the balance further in favour of using equitable jurisdiction to craft effective remedies and become less concerned with overreach.

Neither the majority nor minority at the Supreme Court addressed in detail a problem that has been taken up by courts elsewhere. Where the party being enjoined by an order is an innocent third party, to what extent should the Court be dictating their actions abroad? The majority in Equustek cited a number of Canadian and foreign cases for the proposition that a court may grant orders with extraterritorial effects against a party over whom it has in personam jurisdiction.6 However, the authorities it cited reveal that other courts have been very cautious when telling third parties what to do outside of their territorial jurisdiction. For example, English jurisprudence has recognized that in personam jurisdiction over innocent third parties that carry on business in multiple countries poses a problem. English law very carefully circumscribes the extraterritorial effects of injunctions on third parties, for the most part leaving their extraterritorial effect to be determined by the relevant foreign court.7 Even before Equustek, Canadian law has been inconsistent on this point.8 The Supreme Court decision in Equustek does not temper or qualify the international effect of the injunction against Google – in fact, it positively endorses it: "The problem in this case is occurring online and globally ... The only way to ensure that the interlocutory injunction attained its objective was to have it apply where Google operates - globally."9 In this sense, Equustek seems to push the limits of Canadian courts' territorial jurisdiction beyond that recognized in other countries.

There is arguably a gap left by the existing framework for granting extraterritorial orders that Equustek does not address. A court can have in personam jurisdiction over an innocent non-party, like Google, by virtue of that party carrying on business within its territory. That in personam jurisdiction allows the court to deputize the non-party on a worldwide basis to ensure that its orders are being respected. This is a very powerful tool in the hands of Canadian courts, especially when we consider that a party like Google will likely have a business presence in all Canadian provinces and territories. Given Google's near universal presence and ability to shape international commerce and the exchange of information, there is an obvious risk of judicial overreach as applicants come before courts to request orders that invade the jurisdiction of other countries. The B.C. Court of Appeal in Equustek articulated the current framework for addressing this risk: "In each case, the court must determine whether it has territorial competence .... If it does, it must also determine whether it should make the orders that are sought. Issues of comity and enforceability are concerns that must be taken into account...".10 This framework may be problematic because the Supreme Court has previously said that comity "cannot be understood as a set of well-defined rules, but rather as an attitude of respect for and deference to other nations".11 The Supreme Court has also said emphatically that justice requires a secure and predictable system of conflict of law rules. Comity is not a predictable set of rules or a legal test. It is, therefore, not an ideal referee of judicial overreach. The ground is fertile for a system of predictable rules to develop to fill the current gap.

The Equustek decision has confirmed that Canadian courts have broad power to grant extraterritorial relief against non-parties. We have yet to see what rules will develop to guide how courts exercise that power to grant effective remedies in the Internet Age while respecting the principle of comity.


1. 2017 SCC 24 [Equustek SCC]

2. 2016 BCCA 265 [Equustek BCCA] at 84.

3. Pro Swing Inc. v. ELTA Golf Inc. [Pro Swing] at 78-79.

4. Barrick Gold v. Lopehandia, [2004] O.J. No. 2329 [Lopehandia] at 75.

5. Pro Swing at 58 [Emphasis added].

6. Equustek SCC at 38.

7. English jurisprudence has led to model Mareva orders that include provisos that carefully circumscribe the extraterritorial effects of injunctions against non-parties. See Pitel and Valentine, "The Evolution of the Extra-Territorial Mareva Injunction in Canada: Three Issues", 2 J. Priv. Int'l L. 229 2006, cited in Equustek SCC at 33. And see Babanaft International Co. S.A. v. Bassante, [1990] 1 Ch. 13, cited in Equustek SCC at 38.

8. See Pitel and Valentine, cited in Equustek SCC at 33.

9. Equustek SCC at 41.

10. Equustek BCCA at 88.

11. Van Breda v. Village Resorts Ltd., 2012 SCC 17 at 74.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2017

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Peter Wells, C.S.
Stephen Brown-Okruhlik
Samantha Gordon
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions