Canada: Injunction With Extraterritorial Effect Against A Non-Party: The Google Inc. v. Equustek Solutions Inc. Decision

1. The context

According to the summary of facts set out in the decision of the Supreme Court of Canada1, Equustek Solutions Inc. ("Equustek"), a manufacturer of networking devices in British Columbia, entered into a distribution agreement with Datalink Technologies Gateway Inc. ("DataLink") for the online distribution of its products.

In 2011, Equustek accused DataLink of counterfeiting its products and passing them off as its own. Equustek accordingly obtained an injunction ordering DataLink to return all documentation in its possession belonging to Equustek to it and to post a statement on its website completely dissociating itself from Equustek.

Not only did DataLink not obey the court order, it left the jurisdiction, relocating in an unknown location outside Canada, and continued to sell counterfeited products of Equustek throughout the world via its website.

While Equustek continued its legal efforts against DataLink by obtaining other injunctions, including a Mareva injunction freezing DataLink's inventory and making an application to have DataLink found in contempt of court, none of these remedies were effective at putting an end to the harm it was suffering. Under the circumstances, Equustek felt it had no other choice but to apply to the Supreme Court of British Columbia for an injunction compelling Google Inc. ("Google") to de-index DataLink's websites from its search engine, not only for, but for all Google sites throughout the world.

The B.C. Supreme Court had to decide whether Google, a non-party to the proceedings between Equustek and DataLink, could be ordered in an interlocutory injunction to de-index DataLink's websites from its search engine, and whether the order could be worldwide in scope.

Equustek argued before the Court that it was being irreparably harmed by the fact that Google's search engine was referring web users to DataLink's websites, which were being used to sell its counterfeited products. Equustek therefore maintained that an interlocutory injunction against Google was necessary to put an end to DataLink's harmful activities.

While Google did not dispute that Equustek was suffering irreparable harm that it was inadvertently facilitating through its search engine, it submitted three arguments in its defence. First of all it maintained that as a non-party it should be immune from an injunction. Second, it argued that an injunction was not necessary to prevent the harm and would not be effective. Third, it maintained that the order should not be extraterritorial in scope and that it constituted an infringement of the right to freedom of expression.

On September 23, 2011, Justice Fenlon of the B.C. Supreme Court granted Equustek's application for an injunction against Google2. This decision was upheld by the Court of Appeal for British Columbia3. Google appealed that decision to the Supreme Court of Canada.

2. The Supreme Court of Canada's decision

In its decision of June 28, 2017, the Supreme Court of Canada dismissed Google's appeal and upheld the interlocutory injunction issued against it. The reasons for judgment of the seven majority judges were drafted by Justice Rosalie Abella. Justices Côté and Rowe dissented.

According to the majority, the three criteria set out in the Court's decision in RJR – MacDonald Inc. v. Canada (Attorney General)4 for the issuance of an injunction against Google were satisfied. The Court thus considered that there was a serious issue to be tried, that DataLink's actions were causing Equustek irreparable harm, and that the balance of convenience favoured the granting of the injunction. In addition, the Court concluded that an interlocutory injunction was both necessary and effective to put an end to the harm being suffered by Equustek, given the determinative role played by Google in allowing the harm to occur. According to the Court, a worldwide injunction was the only effective way to mitigate the harm suffered by Equustek. The Court also considered that the balance of convenience favoured granting the injunction, as the countervailing harm to Google was minimal compared to that suffered by Equustek since 2011.

With respect to the question of whether an injunction could be issued against a non-party, in this case Google, the Court referred to judgments where Norwich and Mareva injunctions had been issued against non-parties5, on the basis of their determinative role in occasioning the harm complained of by the applicants. In this regard, the Court considered that a non-party who disobeys an order or interferes with its purpose may be found to have obstructed the course of justice6. The courts in the cases referred to also considered that cooperation of the non-party was necessary to put an end to the harmful activity.

Regarding the extraterritorial effect of the injunction, the Supreme Court of Canada stated that courts may issue such injunctions where it is necessary to ensure the injunction's effectiveness. The Court pointed out that many other jurisdictions, including France and Spain, approve of and apply this method. Moreover, because "[t]he Internet has no borders – its natural habitat is global"7, the Court considered it imperative to make the injunction worldwide in scope in order to ensure that it applied "where Google operates – globally"8. In the Court's view, a worldwide injunction against Google was the only effective way to mitigate the harm to Equustek9.

Finally, the Court dismissed as theoretical Google's arguments based on international comity and freedom of expression, but added that if Google could prove that complying with the injunction would require it to violate the laws of another jurisdiction, including those pertaining to freedom of expression, it could apply to the British Columbia courts to vary the order accordingly.

For their part, the dissenting judges were of the view that the judge at first instance should have exercised judicial restraint and not issued the injunction against Google. In their view, the issued injunction, while interlocutory in form, was permanent in effect, as it amounted to a final determination of the action, and gave Equustek more equitable relief than it initially sought. As the central criteria for a permanent injunction is an extensive review of the merits of the case, which was not performed in this case, the dissenting judges considered that Google's appeal should have been allowed.

In addition, the dissenting judges agreed with Google's argument that an injunction should not be issued against it because it was a non-party to the proceedings and did not contribute to or encourage the illegal activity DataLink was alleged to have engaged in. Furthermore, Justices Côté and Rowe were of the view that no mandatory order should have been made against Google, as the order requires ongoing modification, updating and judicial supervision10. Extensive judicial supervision is necessary because other such websites are constantly being created and must be added to the list of sites that Google is required to de-index.

Moreover, the dissenting judges maintained that Equustek failed to prove the effectiveness of the requested order at preventing DataLink from carrying on its illegal activities. By the same token, the dissent considered that the order was not an effective means to mitigate the harm suffered by Equustek, as web users can find other DataLink websites by "using other search engines" or "other indirect means"11. Finally, the dissenting judges concluded that other more appropriate remedies were available to Equustek.

In conclusion, in this decision the Supreme Court of Canada found that the order issued by the B.C. Supreme Court was justified because there was a serious issue to be tried, irreparable harm had been shown, and the balance of convenience favoured the granting of the injunction. The Court also confirmed that an injunction can be issued against a non-party and may be international in scope if necessary to respect decisions rendered by Canadian courts12.

Thanks to Paul-Arthur Gendreau, Counsel, and Karyne Virgile, Student-at-Law, for their contribution to the preparation of this article.


1. Google Inc. v. Equustek Solutions Inc., 2017 SCC 34.

2. Equustek Solutions Inc. v. Jack, 2014 BCSC 1063

3. Equustek Solutions Inc. v. Google Inc., 2015 BCCA 265

4. [1994] 1 S.C.R. 311

5. Norwich Pharmacal Co. v. Customs and Excise Commissioners, [1974] A.C. 133 (HL), p. 175; York University v. Bell Canada Enterprises (2009), 311 D.L.R. (4th) 755 (Ont. S.C.J.); Cartier International AG v. British Sky Broadcasting Ltd., [2017] 1 All E.R. 700 (C.A.), par. 53

6. Supra, note 1, par. 29

7. Supra, note 1, par.41.

8. Ibid.

9. Ibid., par. 53

10. Supra note 1, pars. 75 and 76, citing National Commercial Bank of Jamaica Ltd. v. Olint Corp., [2009] 1 W.L.R. 1405 (P.C.), par. 20; Redland Bricks Ltd. v. Morris, [1970] A.C. 652 (H.L.), pp. 665-666.

11. Ibid, par. 79

12. See also: Third Parties' Role in Enforcing Injunctions: John and Jane Doe, Beware!

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.

Similar Articles
Relevancy Powered by MondaqAI
MacDonald & Associates
Goldman Sloan Nash & Haber LLP
Bereskin & Parr LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
MacDonald & Associates
Goldman Sloan Nash & Haber LLP
Bereskin & Parr LLP
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