Fasken was retained by Google LLC to bring an application to set aside a world-wide injunction order which had been issued against it in 2014. Google was an innocent non-party, but had been subject to an injunction which required it to delist certain websites from search results returnable to users world-wide. The original order was appealed to, and upheld by the Supreme Court of Canada in 2017, in part, on the grounds that the international comity concerns raised by then counsel for Google were not apparent on the record before the courts.
Fasken applied to the Supreme Court of British Columbia, to have the injunction order discharged, on the basis that there had been a material change in circumstances since the injunction was granted. The material changes included an order from the United States District Court declaring that the original order was contrary to US law, which law is in part in furtherance of the policy objective of promoting free speech on the internet. The application was denied. The court noted that the underlying trial between the parties to the dispute was underway and that the injunction would soon cease to be in effect in any event, subject to any further application the plaintiffs may bring permanent injunction, at which the benefit of the trial evidence would be available.
Tracey Cohen, QC was counsel for Google LLC.