Canadian Provincial Courts CAN Order Google to Remove a Website from Google's Search Results

I am amazed at the velocity of change which the internet and computers generally have brought.  I can remember life without Google and Apple; I remember making mix cassette tapes which activity has had new life breathed into it by streaming services such as Spotify.  As a lawyer I have wondered what impact such ubiquity of technology will have on our Courts ability to grant relief against these tech giants which tech giants most persons would think do not carry on business in Canada (at least in British Columbia).  The Court of Appeal of British Columbia has weighed in on this issue in:

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

This case makes it clear that Canadian Courts (at least British Columbia Courts) will not be limited by the fact that Google's servers and systems are not hosted in Canada and will assert that justice can be granted in the business world at large.

In the Equustek case Equustek sought an interim injunction preventing Google from presenting their website in a Google Search result.  Google defended the application on the basis of jurisdiction arguing that the Court did not have jurisdiction over Google; Google submitted that it was not a British Columbia corporation and the injunction did not relate to activities it carried on in British Columbia. 

The Court of Appeal upheld the decision of the Supreme Court of British Columbia and decided that Google was carrying on business in British Columbia as a result of it sale of adwords and the connection of such sales to financing the Google search engine.  As a consequence the Court of Appeal concluded that it did have jurisdiction over Google and that the Court could grant an Order which would have impact outside of British Columbia.  The Court of Appeal stated:

“Once it is accepted that a court has in personam jurisdiction over a person, the fact that its order may affect activities in other jurisdictions is not a bar to it making an order”

This decision will have impact on Canadian cases which will require an Order to deal with breach of confidentiality and defamation where the servers are NOT located within Canada or the Province where the Court is located.  It will be interesting to see how enforcement of these types of Orders will be received by the jurisdictions where the servers are located.

The Rule of Law; Vexatious litigants; a clear dismissal of Organized Pseudolegal Commercial Arguments

In the 180 page decision decided in 2012 in Meads v. Meads, 2012 ABQB 571 the Honourable Associate Chief Justice J.D. Rooke elucidates the history of what Justice Rooke describes as Organized Pseudolegal Commercial Argument Litigants.  Justice Rooke starts his decision by quoting from Thomas Hobbes Leviathan:


"Where there is no common power, there is no law, where no law, no injustice. Force, and fraud, are in war the two cardinal virtues. ... The laws are of no power to protect them, without a sword in the hands of a man, or men, to cause those laws to be put in execution. ... And law was brought into the world for nothing else but to limit the natural liberty of particular men in such manner as they might not hurt, but assist one another, and join together against a common enemy."

Thomas Hobbes, Leviathan (Forgotten Books, 2008), at pp. 87, 147, 184

Justice Rooke then articulates clearly in the first paragraph the difficulty posed by OPCA litigants:

[1] This Court has developed a new awareness and understanding of a category of vexatious litigant. As we shall see, while there is often a lack of homogeneity, and some individuals or groups have no name or special identity, they (by their own admission or by descriptions given by others) often fall into the following descriptions: Detaxers; Freemen or Freemen-on-the-Land; Sovereign Men or Sovereign Citizens; Church of the Ecumenical Redemption International (CERI); Moorish Law; and other labels - there is no closed list. In the absence of a better moniker, I have collectively labelled them as Organized Pseudolegal Commercial Argument litigants ["OPCA litigants"], to functionally define them collectively for what they literally are. These persons employ a collection of techniques and arguments promoted and sold by'gurus' to disrupt court operations and to attempt to frustrate the legal rights of governments, corporations, and individuals.

The submissions made by one of the litigants inspired Justice Rooke to do a global review of the sociology and law relating to OPCA; Justice Rooke stated:

[53] There is a third reason for a broad-based decision and analysis. It so happens that Mr. Meads has provided a remarkable and well developed assortment of OPCA documents, concepts, materials, and strategies. These materials also illustrate particular idiosyncrasies that this and other Courts have identified as associated with the OPCA community and OPCA litigation. Phrased differently, Mr. Meads= materials and approach provide an ideal type specimen for examination and commentary, which should be instructive to other OPCA litigants who have been taken in by these ideas, opposing parties and their counsel, as well as gurus.

[54] Mr. Meads' submissions also make an excellent subject for a global review of the law concerning OPCA, the OPCA community and its gurus, and how the court, lawyers, and litigants should respond to these vexatious practices and the persons who advance and advocate these techniques and ideas. In this sense, the present case management allows the litigation between Mr. and Ms. Meads to explore the OPCA community and its concepts, for the benefit of this and other Canadian Courts, and litigants appearing before the courts.

[55] I will use Mr. Meads' materials and arguments to illustrate many points in this review. Those materials will be supplemented from several sources. First, I review judgments from this and other Courts that report on OPCA strategies and court responses to OPCA litigants.

The balance of the case is good reading for those interesting in informing themselves about:

"The OPCA Phenomenon";
"Indicia of OPCA Litigants, Litigation, and Strategies"; and
"Judicial Response to OPCA Concepts and Arguments".

Justice Rooke concludes under the heading Summary and Direction and encourages litigants to review his comments and hope that in doing so this "will lead them to more productive and successful interaction with the courts, government and their fellow citizens:

[66] There is no place in Canadian courts for anyone who advances OPCA concepts. The last part of these Reasons suggests how judges, lawyers, and litigants may respond to persons who adopt and advance these concepts. I also comment directly to those in the OPCA community - both gurus and their followers - with the hope that these Reasons will lead them to more productive and successful interaction with the courts, government, and their fellow citizens.

Securities Act (Alberta) - Exempt Market Securities Exemption

A few years back I had a few clients who used the Exempt Market Securities Exemption to raise private placement capital for various business ventures.  The market "crashed" in 2008-2009 and this lead to many investors not seeing their monies returned.  Notwithstanding the clear warning that the investment was a "risky" investment and an investor could "loss all of their money", the Securities Commission has pursued many of these fundraisers.  I think the manner in which they attack this is that the fundraiser made a misrepresentation which is actionable pursuant to the Securities Act (Alberta).


While searching the web the other day for an update on the various exemptions which are available I came across the website of Venture Law Corp. which I thought was impressive enough to blog about; there are three links to three separate topics:

Part One: Relying on the “Close Personal Friend” and “Close Business Associate” Exemptions to Raise Private Placement Capital

Part Two: Relying on the “Accredited Investor” Exemption to Raise Private Placement Capital

Part Three: Relying on the “Offering Memorandum” Exemption to Raise Private Placement Capital

Notwithstanding that Bridgeland Law can assist you in protecting yourself either as a fundraiser or investor in respect of these types of  private placements of capital, it is instructive to read these excellent summaries by Venture Law Corp.   Please remember that these articles are NOT legal advice and that you should hire a lawyer to seek legal advice specific to your circumstances and particular fact situation.

New Home Buyer Protection Act; Government: If you think the problems we create are bad, just wait until you see our solutions

I came across this "demotivational" poster from despair.com some time ago.  In my practice as a lawyer I am often exposed to Alberta government departments which were created to solve a problem.  The problem subject of this blog entry is the shoddy work being done by some builders in the construction of houses and condominiums in the Province of Alberta which leads to deficiencies in the construction.  This was and is a real problem but I am surprised at the cumbersome solution created by the Government of Alberta to try and solve this problem.

The solution to this problem proposed by the Government of Alberta is the New Home Buyer Protection Act, SA 2012, c N-3.2 which has now received passage in the Alberta Legislative Assembly and will soon be in force on proclamation.  Among other things, this act creates a new Registry to be staffed by a Registrar and other soon to be pensioned Alberta employees and an Appeal Board which will deal with appeal of decisions and enforcement by the Registrar.  Among other things, this new Government of Alberta Registry will be responsible to keep track of the construction of new homes:

1(s)    “new home” means a building, or a portion of a building, that is newly constructed or that is being constructed and is intended for residential occupancy and in respect of which the purchase period has not expired, and includes

                                     (i)    a self‑contained dwelling unit that

                                         (A)    is detached,

                                         (B)    is attached to one or more other self‑contained dwelling units, or

                                         (C)    includes a secondary suite,

                                    (ii)    common property, common facilities and other assets of a condominium corporation,

                                   (iii)    any building or portion of a building that is of a class prescribed as a class of new home to which this Act applies,

                                  (iv)    a building that is intended for residential occupancy and that is a reconstruction, and

                                   (v)    a manufactured home,

                                      but does not include a hotel, motel, dormitory, care facility, relocatable work camp or any building exempted by the regulations from the definition of new home;

which are build by persons other than an owner builder and also by owner builders.  It is important to note that owner builders are not required to obtain warranty insurance. 

Mandatory home warranty

3(1)  A person other than an owner builder shall not build a new home unless the new home

                             (a)    is covered by a home warranty insurance contract that complies with subsections (6) and (7), and

                             (b)    is registered with the Registrar.

Authorizations for owner builders

5(1)  Subject to section 6, the Registrar shall issue an authorization, subject to any terms and conditions the Registrar considers appropriate, to an individual who intends to build a new home for personal use if the individual

                             (a)    registers the new home with the Registrar,

                             (b)    meets the prescribed criteria, and

                             (c)    pays the required fees, if any.

It is worthy of being noted that the definition of a new home includes dwelling units attached to one ormore other self‑contained dwelling units (this sounds like multi-unit and town house condominiums) and common property, common facilities and other assets of a condominium corporation.  The act will also apply to any building or portion of a building that is prescribed as a class of new home; this allows additional classes of new homes to be added by regulation.  Curiously, though I am unclear at this time why, the Minister may make the following exemptions:

28(2)  The Minister may make regulations

(a)    exempting

   (i)    persons or categories of persons from all or any portion of this Act, including     providing differently for different categories of persons,

  (ii)    a building, a class of buildings, a portion of a building or the common property, common facilities and other assets of a condominium corporation from the definition of new home in section 1(1)(s), or

  (iii)    a category of persons from the definition of residential builder in section 1(1)(dd);

            

The purpose of these registration obligations as I understand it is so the Government of Alberta can keep track of whether builders are obtaining warranty insurance which is intended to protect buyers of new homes and keep track of owner builders.   As  a result at least two bureaucratic organizations are impacted: the for profit insurance industry and the Government of Alberta which now has a new regulatory body to keep track of the compliance with the requirement of builders of new homes to have warranty insurance.  This regime also excludes residential buildings which are rented but under one title; however, this exception also creates additional registration requirements, albeit in the Land Titles Office:

 (8)  Subsection (1) does not apply to a multiple family dwelling built for rental purposes if the multiple family dwelling is owned under a single legal title and a restrictive covenant is registered and maintained on the title restricting the sale or other disposition of any dwelling unit within the multiple family dwelling for 10 years from the earlier of

                             (a)    the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the multiple family dwelling, and

                             (b)    the date that the transfer of title to the multiple family dwelling is registered.

Please do not misunderstand my criticism as the overarching purpose of the act is a good one.  The act provides that non-owner builders, without warranty insurance, must obtain insurance to cover the following:

3(6)  A home warranty insurance contract must provide coverage in accordance with the Insurance Act for

                             (a)    defects in materials and labour for a period of at least one year starting on the date on which the coverage begins,

                             (b)    defects in materials and labour related to delivery and distribution systems for a period of at least 2 years starting on the date on which the coverage begins,

                             (c)    defects in the building envelope for a period of at least 5 years starting on the date on which the coverage begins, and

                             (d)    structural defects for a period of at least 10 years starting on the date on which the coverage begins.

3(7)  A warranty provider must offer the option to purchase, at an additional premium, additional coverage covering

                             (a)    defects in the building envelope for a prescribed period, and

                             (b)    defects in other prescribed components of the new home for a prescribed period.

This is a great improvement over the existing warranty insurance available (1 year for all issues but structural which are 5 years) and which has not been mandatory.  Moreover, the act will function somewhat like the Sales of Goods Act by creating implied warranties for sales of all new homes built without insurance:

Statutory protection

4(1)  This section applies only to a new home that does not have home warranty coverage as required by this Act.

(2)  A residential builder or an owner builder of a new home is deemed to have agreed with the prospective owner of the new home and subsequent owners of that home, to the extent of labour, materials and design supplied, used or arranged by the residential builder or owner builder, that, except to the extent prescribed, the new home, as it exists at the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or if permission is not granted, at the date the new home is first occupied,

                             (a)    is free from defects in materials and labour and will remain so for a period of at least one year after

                                     (i)    the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or

                                    (ii)    if permission described in subclause (i) is not granted, the date the new home is first occupied,

                             (b)    is free from defects in materials and labour related to delivery and distribution systems and will remain so for a period of at least 2 years after

                                     (i)    the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or

                                    (ii)    if permission described in subclause (i) is not granted, the date the new home is first occupied,

                             (c)    is free from defects in the building envelope and will remain so for a period of at least 5 years after

                                     (i)    the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or

                                    (ii)    if permission described in subclause (i) is not granted, the date the new home is first occupied,

                                 and

                             (d)    is free from structural defects and will remain so for a period of at least 10 years after

                                     (i)    the date an accredited agency, accredited municipality or accredited regional services commission grants permission to occupy the new home, or

                                    (ii)    if permission described in subclause (i) is not granted, the date the new home is first occupied.

(3)  Any term of an agreement that purports to waive, exclude, limit or qualify the protection under subsection (2) is of no effect.

(4)  The protection under subsection (2) applies for the benefit of the person who owns the new home at any time during the periods specified in subsection (2).

(5)  The person who owns the new home when there is a breach of the protection under subsection (2) is deemed

                             (a)    to have given good consideration for the benefit of the protection, and

                             (b)    to be the only person entitled to recover damages for a breach of the protection.

(6)  Despite subsection (5), if the ownership of the new home changes during the course of an action for a breach of the protection under subsection (2), the new owner is entitled to be substituted as plaintiff and to enforce all rights that the former owner could have enforced.

(7)  Nothing in this section

                             (a)    excludes, qualifies or limits any other term, express or implied, or

                             (b)    relieves any person of liability to which the person would otherwise be subject.

So you are probably asking why am I so critical; let me tell you.  The demotivational poster captures the thinking of many Albertans'.  We do not want another branch of government every time a problem appears to be in need of a solution.  This begs the question of was there an easier solution?  Was there a mechanism that could have bolstered the required insurance for townhouse and multi-unit condominium construction where the larger problem lies without creating another government registry?  After mandating robust warranty insurance for town house and multi-unit condominiums, the Government of Alberta could have drawn a distinction between  construction of new homes with and without warranty insurance.  If a builder elects to build without the more robust warranty insurance outlined in the act then the Government could have provided that Directors of any builder which is a corporation shall be personally liable for any deficiencies.  This concept is ofter referred to as piercing the corporate veil.  As with many areas of our economy the Government of Alberta has seen fit to pierce the corporate veil; that is, to make Directors of corporations responsible for some of the actions of a corporation.  This is done in both employment contexts and environmental contexts where Directors are not allowed to hide behind the corporate veil and are responsible for payment of employees wages (among other things) and responsible for remediation of environmental contamination.  Given the need in the new home construction industry for purchasers to have recourse in the event of deficiencies it would have been a simple mechanism to provide a remedy to affected purchasers.  This would have been a much simpler system and be less intrusive and not have required another regulatory body be created.

A couple of other points merit being identified.  The municipalities in the Province of Alberta have planning and permit departments established.  Builders, Architects and Engineers are all very familiar with the requirement to obtain Building Permits.  Additionally, the municipalities have inspectors whose responsibility it is to ensure that the terms of the Building Permit have been met.  Without broad brushing all of these persons involved in new home construction, I must comment that I find it interesting to note that the existing professional duties and obligations to inspect have not been highlighted in this solution.  I will say no more than to query why existing mechanisms were not emphasized as a means of ensuring compliance with the Alberta Building Code's minimum standard by builders of new homes. 

So why did the Government of Alberta not simply make Directors of corporations in the business of building new homes without insurance responsible for deficient construction?  In doing so this would have had a large chilling effect on shoddy builders many of whom have historically hid behind the veil of a corporation.  With all due respect to the drafters of the New Home Buyer Protection Act, the proposed solution offered by the New Home Buyer Protection Act  is cumbersome and creates one more regulatory body that was not really needed.

Richard I. John, Lawyer, 205 - 7A Street NE, Calgary, Alberta, Canada, T2E 4E7, Tel:403-205-3949

This blog/blawg will serve as the "home page" for BRIDGELAND LAW.   Bridgeland Law has let its old website "fall" and trusts that persons surfing the web for information about Bridgeland Law or Richard I. John, Lawyer will be directed to this site.

You may also want to check out the following links:

1.  Alberta Condominium Reporter; and
2.  Linked In - Richard I. John, Lawyer.

It is my intention to post links to websites and other information which may be of interest to my clients and web surfers.