Robbins SCE Research
Home| British Columbia Polls| Canada Polls| US & the World Polls| Contact| Register| Search| Donate
Glen P. Robbins gives Reasons in Google v Equustek Vol IV
  Sep 10, 2016

Commentary
Continued from Google v Equustek Vol. III
“To make an informed decision, they should have been told in general terms of the case they had to meet....and been given an indication of the jeopardy they faced in terms of damages.”
“Furthermore, a party must be made aware of the potential jeopardy faced.” “The appellants were not made aware of various events occurring in the Florida court”, “a 1987 court order striking out the claim for punitive damages, against the other defendants – the realtor and the title insurers – on ground applicable, had they known about it, to the appellants. There were not told, after being noted in default and before jury trial, that the respondents had made a deal with the realtor to delete cliams for treble damages, punitive damages and statutory violations.”
“Nor were the appellants served with the court order for mandatory mediation which provided that all parties were required to participate or, as required by the Florida rules, with notice of the experts the respondents proposed to call at the damages assessment.”
“Lastly, the respondents complaint did not indicate that they were claiming damages on behalf of corporations, whose names appeared nowhere in the pleadings, in which they had an interest, and that they would be seeking damages for a corporations lost opportunity to build an undefined number of homes on land to which neither the respondents nor the corporation held title.”
“A judgment based on inadequate notice is violation of natural justice. A default judgment that rests on such violation should not be enforced.”
Per LeBel J (dissenting): “The real and substantial connection test should be modified significantly when it is applied to judgments originating outside the Canadian federation. Specifically, the assessment of the propriety of the foreign court's jurisdiction should be carried out in a way that acknowledges the additional hardship on a defendant who is required to litigate in a foreign country. The purposive, principled framework should not be confirmed, however to be question of jurisdiction. The impeachment defences of public policy fraud and natural justice ought to be reformulated.”
“Liberalizing the jurisdiction side of the analysis while retaining narrow, strictly construed categories on the defence side is not a coherent approach.”
“The jurisdiction test itself should be applied so that the assumption of jurisdiction will not be recognized if it is unfair to the defendant. This requires taking into account the difference between the international and interprovincial contexts. The integrated character of the Canadian federation makes a high degree of cooperation between the international and interprovincial contexts. The integrated character of the Canadian federation makes a high degree of cooperation between the courts of the various provinces a practical necessity. It is also a constitutional imperative, inherent in the relationship between the units of our federal statutes.”
“Comity as between sovereign nations is not an obligation in the same sense. It follows.....that the rules for recognition and enforcement of foreign-court judgments should be carefully fashioned to reflect the realities of the federal context, and calibrated to the furthest degree possible.” “This approach is consistent with both the flexible nature of international comity as a principle of enlightened self interest rather than absolute obligation, and the practical difference between the international and interprovincial contexts.”
“While the test should ensure that, considering the totality of the connection between the forum and all aspects of the action, it is no unfair to expect the defendant in litigation in that forum, it does not follow that there necessarily has to be a connection between the defendant and the forum. There are situations where given the other connections between the forum and the proceedings, it is a reasonable place for the action to be heard and the defendant can fairly be expected to go there.....”
“Even if the natural justice defence did not apply, this judgment should not be enforced. The facts raise very serious concerns about the fairness of enforcing the Florida judgment which do not fit easily into the categories identified by the traditional impeachment defences. The circumstances of this case are such that the enforcement of this judgment would shock the conscience of Canadians and cast a negative light on our justice system. The appellants have done nothing that infringes the rights of the respondents and have certainly done nothing to deserve such harsh punishment. Nor can they be said to have sought to avoid their obligations by hiding in their own jurisdiction or to have shown disrespect for the legal system of Florida. They have acted in good faith throughout and have diligently taken all the steps that appeared to be required of them, based on the information and advice they had. The plaintiffs in Florida appear to have taken advantage of the defendants’ difficult position to pursue their interests as aggressively as possible and to secure a sizeable windfall.”
Neither the lower court nor appeal court decision provides us with the type of insight required to be 'armed with all the facts' specifically an assessment of the damages we are dealing with which should constitute the level of emergency the court should be required to raise for an injunction against an “innocent” non party. In the “Beals” matter we know that the plaintiffs made amended pleadings and from that achieved further orders of increased damage amounts against the defendants.
What we know from the Beals case is that there is real and tangible connection between allowances made by the Supreme Court of Canada based on matters involving actual parties to a case as this relates to land in Florida. At a minimum this connection involves parties to a Florida action and to a Canadian appeal. There is no effort to apply the concept of a 'significant modification' ascertained by the Supreme Court of Canada to a non party as Google is.
The “RJR Nabisco” case informs us that where possible damages should be considered prior to injunction. The “Beals” case involves a defendant featured in the original cause of action as party to the action, while the “Google v Equustek” matter does not involve damages against the “innocent” party “Google”, but rather compels an injunction against it without possibility of measuring whether or not damages would be a better solution than the injunction, impossible to do because “Google” has no right as a defendant party.
The civil breaches occurring are on the “virtual” activity of solicitation taken by the defendant on various websites outside the reasonable control of Google's search engine, cannot in and of itself permit the defendant to find its way to the top of search engine charts, action relating to optimization must be implemented to make this happen. Google has no influence on this action.
We do not know if the plaintiff's product has been sold by the defendants. The actions of the defendant suggests they may be doing so, though we are not able to quantify how successful this has been. Word of mouth, long a staple method of communicating business source, solicitation through telephone, email, and others might be potential methods of accessing potential buyers of the “clandestine” product.
If the defendants are benefiting economically to what degree, and how is it that they are able to do ongoing business in a market for abstract product.
This plaintiff's product is not like other more typical “clandestine” products say, knock off Rolex watches or expensive women's hand bags. It is a product which is particular. For that reason it seems odd that the lower court did not direct the plaintiffs their enforcement provisions under the BC Civil Rules prior to hinging said enforcement to the actions of a non party, in this instance “Google”.
In the Beals case all types of damages accrued to the plaintiffs in that case, based on new orders following old ones, in amended pleadings to statement(s) of claims. Although provision for damages in the Beals case out of the State of Florida include treble damages, not available in Canada (save for the affirmation of U.S. Style damages by the Supreme Court of Canada in Beals), the B.C. court had opportunity, following the striking of the defendant's reply to notice of claim (statement of defence) to assess punitive damages.
The plaintiff could have obtained these damages – the court could have made them significant, which action, in and of itself would have raised the temperature around the apparent nefarious actions of the defendants, and further the court could have given order for the plaintiff to serve the Order online or to be made public in the newspaper. The order could have been delivered to Google and other search engines as a courtesy.
The Beals case assessment of significant damages out of Florida did not offend the majority of the Supreme Court of Canada asserting their position of acting on behalf of Canadian sensibilities and morality in relation to damage amounts. (Yet, when Canadians seek American type damage awards in Canadian litigation the courts adopt a more conservative posture).
Once again, what was stopping the BC lower court from assessing similarly significant damages against Equustek and permitting due process of enforcement of orders to follow?
We determined the defendants were working out of Washington State, how was it that the plaintiff (and neither court) could be sure where the defendants were plying their “clandestine” business affairs in breach of the apparent Trademark rights of the plaintiffs?
Was the B.C. lower court somehow trying to keep the plaintiff's legal expenses lower?
The giant leap past the existing available provisions in the BC Civil Rules, in aid of execution of court orders involving actual parties to the cause of action to a civil injunction against an “innocent” non party, would seem on its face to be a gross contradiction of natural justice.
To me it seems practically unfair to Google (or any future 'Googlers'), if not ridiculous.
The majority of the S.C.C. Court in the “Beals” matter references the “substantial connection” in context of the cause of action. An innocent non party like Google not connected to the cause of action does not seem like a valid candidate for the substantial connection. The actual defendants do not have a substantial bona fide connection to British Columbia, because their actions are not in and of themselves not bona fide.
The need for such affirmative action as was taken by the BC lower court in Google, (affirmed at BC Court of Appeal), in context of the overarching interests of justice as this relates to matters of local court actions and international comity going forward from “Beals” is simply not made out in “Google” whatsoever.
This isn't to say it is a reach or overly ambitious, it is to say that it is so devoid of any of the particular matter referenced in “Beals” to be one which Canadians and our International friends can point to and say this is correct migration in terms of progress of International comity. This case, in contrast to “Beals” ought to “shock the conscience of Canadians.”
Considering Fenlon J.'s claim to LeBel in “Van Breda” and improper neglect of the SCC's evaluation of “Beals” should shock the conscience of any court.
The “Beals” decision is the first solid test of the substantial connection provisions considered by the Supreme Court of Canada. Its origins are based in a land deal in Florida. What is more tangible in terms of property analysis than land (unless you live in Vancouver B.C.)?
The jurisdiction and decision at Supreme Court of Canada fit properly in terms of jurisdiction and grounding. Nothing in the Google matter can be linked as progressing substantively from “Beals”.
In this sense, the Google case seems more an opportunity for self promotion of the justices's participation in a case than any effort to act in the public's interest.
The higher courts and legal academics have clearly emphasized the need for political integration between nation states in matters pertaining to the flow of goods and services (before using legislative considerations of one province in the Canadian Federation (or one state in the U.S. Republican system of governance).
The inter provincial case in Morguard involved land and foreclosure matters in Alberta and its comity reference in B.C. courts. The Beals matter involves International case in the State of Florida also commencing on the issue of property.
The Google matter involves property but not land where the parties to the cause of action are from British Columbia at point of commencement of proceedings. The action is commenced in BC with BC parties, it is defended in BC, and is prosecuted in BC.
In Morguard there is continuity in terms of the persons in the style of cause with proceedings and procedure occurring in different provinces. In Beals the action is commenced in Florida and proceeds to judgment on the merits, the parties remain the same insofar as they involve the original plaintiff and the defendant also featured in final decision at Supreme Court of Canada.
There is continuity in the cause of action in Beals based on the parties involved. The Google case attempts to include a party who is not related in any way to the cause of action and would not therefore be eligible for consideration of damages, normally considered prior to ordering injunction, and makes the non party essentially responsible for curtailing the efforts of a defendant.
Practical Common Sense Considerations:
The Internet Website of the Defendant's wasn't produced by Google and it's contents are not independently enhanced by Google or any other search engine. Any person's Internet Website can be enhanced, and in this instance enhanced means to push promote or cause a link upon a Website 'up the charts' to 1st and 2nd page through optimization.
My own private website not a BC company @ www.robbinssceresearch.com was reconfigured after making a payment to a private consultant to accommodate Google advertising. The primary purpose for allowing Google ads was that Google provided consideration of greater exposure to readers. Just weeks after the Google decision all advertising was removed from this site. The number of visitors and the number of links to my site were also reduced substantially after listing ads for nearly a decade.
Our site did not require optimization costs as the content itself supported by the Google capacity in return for ads being placed on the site was sufficient to draw in readers.
Optimization takes specific action, energy and cost. Without optimization, a particular link on a particular Website can only be advanced through organic popularity of the words associated with the search and to other Websites that carry similar information of refer to the original Website material, which also requires specific action. Carrying Google ads helped, having them unilaterally removed, coincidentally at the same time as the Google v Equustek matter does not help.
The Defendant's Website links were most likely promoted and pushed through optimization or other, but in and of themselves were not promoted by Google or any other search engine which merely facilitates the opportunity for presentation of material within Websites as there is no evidence that Google placed ads on their site (after vetting their site) as they did for www.robbinssceresearch.com.
The property in question in the Morguard and Beals cases involves land registered at land title. We cannot deal with this property by a flick of the switch as is required to trigger use of the Worldwide Web, land and land registry is there 24 hours per day.
The court decision provide only a cursory explanation of Internet function, but neglects to properly consider the matter of Website search engines, website design construction and optimization link manipulation and promotion. This point is intended to separate Google as “innocent” party (some distance from any responsibility it should have to the plaintiff), and to reveal how distinct the industry of Website production is to the business of “social media channels” (search engines) of which Google is but one.
A Website as described by Customfit Online and Ben Groux June 5, 2014 (about the same time as the lower court decision by Fenlon J.): According to Mr. Groux: “Nowadays almost anyone can create a website as it does not take much technical know-how to set up and get going.”
“That is why we have so many types of designer disciplines in the web community-- product designers, user interface designers, engineers, programmers, strategists....the list goes on! Each designer and developer has an area of speciality.”
“From beginning to end, every bit of work that goes into making a website will fall into either of the plan > make > evolve blocks. There might be any number of steps in each of them, but (in general) the philosophy is direct and process is linear; make a good product that has been researched and evaluated, and continually inspire that product overtime.”
“Block One”: “Plan”
“Planning is the largest block of the web design process, both in terms of time, effort and importance. The proverb 'measure twice, cut once' comes to mind. Planning involves a great deal of steps and encompasses a huge number of tasks. It involves many people in varying disciplines, such as project managers, content strategists (CS), user experience designers (UX), user interface designers (UI), information architects (IA), search engine optimizers (SEO) and data analysts among others.”
“Some of the steps involved include: (a) “Personas” “Websites are made with a specific target in mind. Personas are the epitome of the ideal audience members (like a representative plaintiff in a class action lawsuit), and the remainder of the project is tailored to this imaginary user.”
“Content inventory” “Mapping everything that exists on the current site and seeing what does and does not work, if the pattern exists and to set the stage in terms of testing and thought.”
“Content strategy” “What kind of tone and voice should encompass the website's content? Who will create and maintain this content? Where, when and how will it be published?”
“Site mapping” “A compilation and arrangement of components, modules and pages into a structured folder-like system.”
“SEO research” “An amalgamation of brand patterns (such as colour, type, imagery, etc) that is combined with the prototype to “flesh it out”, you may need to perform keyword research, competition analysis, and content planning to ensure your website is advertised, shared, and discovered as best as it can.”
“Wireframing” “A visual blueprint that details out all the website's functionality, user flows...”
“Block Two”: – “Making the Website”
“The making of a website involves taking everything that has been discovered and everything that has been formulated...creating the tangible product.”
“Specialists in this block include everyone from the previous block to some extent, but the bulk of this falls primarily into the laps of user experience designers (UX), user interface designers (UI), visual designers, front end developers, back-end developers, programmers and CMS architects.”
“Prototyping” “Prototyping is the evolution of the wireframes, its taking what has been sketched and planned out and turning it into a functional skeleton that we can view and test in-browser.”
“Visual inventories” “A comprehensive array of existing styles, themes, motifs, and patterns that the client can select from.”
“User interface design” “An amalgamation of brand patterns (such as colour, type, imagery, etc) that is combined with the prototype to “flesh it out” and bring it to life.”
“CMS Development” “The content management system is built to accommodate all the requirements the client will need to create and maintain content.”
“Quality assurance testing”- “A check to make sure there are no broke links, broken pages, missing functionality, completed content, etc.”
“Database set-up” “Every website needs a home, certain content and functionality may only exist because of server-side programming.”
“Website development” “The bulk of the “build” block website development is the act of coding and programming. This include core languages such as HTML, CSS and Javascript, and even additional website – specific languages such as Ruby, PHP, Java, XSLT, etc.”
“Device testing” “A website is tested on a multitude of devices and browsers, ranging from the tiny to the enormous, to ensure an enhanced, optimized experience for each and every user.”
“Block Three”: “Evolve”
“A website development project is not completed on launch. After what goes out live, there must be promotion and analysis that usually bring users to the site, and seeing if what was made actually worked. The evolve block involves every step completed after the actual building, including: “CMS training”: “Making sure all necessary parties on the client's team understand the capabilities and limitations of the content management system.”
“Site Maintenance” “Doing routine checkups and reviews to make sure content, functionality, and design decisions are intact and performing as desired.”
“Site optimization” “Site optimization refers to a variety of factors including A/B and multi-variate testing, this sort of optimization test what content and functionality of your website is working, what isn't and what can be updated, revised and tweaked to improve overall website goals.”
“Digital analytics” “Reviewing who is doing what on the website. By pulling metrics and studying how users are interacting with the website, one can determine and suggest changes and improvements.”
“Social media marketing” “Promotion and marketing on various social media channels, including Facebook, Google, Twitter, YouTube, etc.”
Similarly, the registration of the plaintiff occurs at BC Company registry. It is there 24 hours per day.
Likely one in three people can functionally operate a computer. Most would not understand the detail and particulars involved in creating search engines, websites, optimization of web links etc. Most ordinary people understand the meaning of property land “dirt” etc., and the properties associated with completing a business registration.
Those persons who use Google at all (if one takes the 75% amount associated with Fenlon J.'s decision) and who would understand the complexities inherent with design and expression of material on the Internet would likely be less than one in twenty.
The number of persons in the general adult public who take an interest in land and/or are aware of land and property is well over 80% one would reasonably assume. One in four British Columbians' (at least) have an interest in land (property) in British Columbia. The number who will use the Internet commercially (in terms of owning a website for business) in any remarkably way is a fraction of that number. The further number who would then be interested in the product either the plaintiff or the defendant are selling would be measured in basis points, a measurement not in the public interest.
The public interested in either Equustek's product or the defendants version of it is scant. The Internet Websites produced for this scant audience are very likely out of the control of Google. In fact, these Websites could have a particular relationship with one of the other search engines or even Youtube (theoretically).
Through logic the common man can adduce that if Google is deemed “innocent” by the BC Superior courts as this relates to Equustek's problems, and we factor the number of persons who use Google against the number seeking out Equustek's Internet Website, or one of the Defendants Internet Websites, we can deduce that ordering an injunction against Google, a non party. in any circumstance, is patently unreasonable and trundling toward foolish.
The offering of (apparently) cross border 'goods and services' for sale is made by the Website specifically unrelated to Google which facilitates that Website's expression and is not responsible for its permit.
This would make the Website creators a more valid 'party of interest' than Google, particularly when it has been determined that Google is “innocent.” How was it that the Website producers or facilitators unrelated to Google, the search engine (and not the only search engine) were not identified or included in the quest for injunction?
The specific balance of probabilities test normally assigned in civil matters must also be assigned to the defendant(s) in the Google matter. It should not be assigned from a cause of action to a party which is unrelated in any way to that cause. We are certain of no wrongdoing by Google, everyone in the litigation, including the justices deciding the case agree.
Were Google to be held to blame for every civil breach in commerce provoked by dishonest persons with access to a website, or website producer or website “optimizers” the entire public interest of the Internet would be in jeopardy as aggrieved parties sought to save time and money (and possibly absolve themselves of blame) by running to the courts and blaming Google.
Indeed it wasn't long prior to the Morguard decision that American Online (“AOL”) was deemed to be responsible for illicit porn sites. This created a different public policy consideration given that minor children could be exposed to this type of 'freedom of expression'.
Indeed today, Internet Websites erected for the purposes of dissemination pornographic websites remain very popular. Is Google or any other search engine directly responsible to the point of requiring an injunction when these sites portray inappropriate pornography such as those involving underage minors (children)?
The police have the capacity enforce the Criminal Code in matters of impropriety involving child pornography or other illicit material offered on the Internet. Are the B.C. courts suggesting that Google has the responsibility to be the policeman for any civil offences which may occur on the Internet outside of defamation considerations?
What has been the public policy to ensure that child pornography is not obtained by children? As mentioned, police have developed the ability to curtail this type of illegal activity online. At home, parents are able to ensure that such material is not available to children in their home. Controls exist at the level of authority including police, institutions such as libraries and in the hands of the ordinary citizen protecting their family at home.
This protection can be included to ensure that terrorists do not use the Internet to promote their criminal objectives that may cause harm to society.
Underage people who own cell phones must purchase 'data' to go online. What they view is known to the carrier charging the fees. Lap tops must rely on available 'Wifi' in public places such as the local library or Starbucks coffee shops.
The point here is that real effort is being made to deal with illegal activity online in keeping with advancing Peace, Order and Good Government edict of the Canadian Constitution.

Home| British Columbia Polls| Canada Polls| US and the World Polls| Contact| Register| Search| Site Map
Copyright Robbins SCE Research Inc. ©2017