03/02/2020 2017 FC 114 (CanLII) | CanLII F. What remedies should this Court grant under section 16 of PIPEDA? (1) A corrective order [80] The OPCC supports the applicant’s request for an order requiring the respondent to correct his practices in order to comply with PIPEDA under paragraph 16(a). The respondent not being a resident of Canada does not bar the making of an extra-territorial order where the underlying dispute is within the jurisdiction of the court: Impulsora Turistica de Occidente, SA de CV v Transat Tours Canada Inc, 2007 SCC 20, [2007] 1 SCR 867 [Impulsora Turistica] at para 6; Barrick Gold Corporation v Lopehandia et al, 2004 CanLII 12938 (ON CA), [2004] OJ No 2329 (ONCA) [Barrick Gold] at paras 73-77; Equustek, above, at paras 81-99. [81] However, as noted by the Ontario Court of Appeal in Barrick Gold, above, at para 73, Courts have traditionally been reluctant to grant injunctive relief against defendants who are outside the jurisdiction. The reason for this is explained by Robert J. Sharpe in his text, Injunctions and Specific Performance, loose-leaf edition (Toronto: Canada Law Book, November 2002), at 1-54 to 1-55: Claims for injunctions against foreign parties present jurisdictional constraints which are not encountered in the case of claims for money judgments. In the case of a money claim, the courts need not limit assumed jurisdiction to cases where enforceability is ensured. Equity, however, acts in personam and the effectiveness of an equitable decree depends upon the control which may be exercised over the person of the defendant. If the defendant is physically present, it will be possible to require him or her to do, or permit, acts outside the jurisdiction. The courts have, however, conscientiously avoided making orders which cannot be enforced. The result is that the courts are reluctant to grant injunctions against parties not within the jurisdiction and the practical import of rules permitting service ex juris in respect of injunction claims is necessarily limited. Rules of court are typically limited to cases where it is sought to restrain the defendant from doing anything within the jurisdiction. As a practical matter the defendant “who is doing anything within the jurisdiction” will usually be physically present within the jurisdiction to allow service. [82] The jurisprudence is clear that courts must exercise restraint in granting remedies that have international ramifications. That said, in some circumstances, courts do issue extraterritorial orders where there is a “real and substantial connection” between the organization’s activities and Canada: Equustek, above, at paras 51-56. [83] The OPCC has presented considerable evidence as to the nature of the respondent’s enterprise based in Romania, and the degree to which it can be said to do business in Canada. As mentioned above, the content of Globe24h.com that is at issue is Canadian court and tribunal decisions. The OPCC’s evidence demonstrates that these decisions containing personal information were deliberately downloaded by the respondent from Canadian legal websites, such as CanLII, and republished on Globe24h.com. Moreover, the respondent has made a profit from Canadians by requiring them to pay a fee to have their personal information removed from the website. [84] As noted by the British Columbia Court of Appeal in Equustek, above, at paragraph 85, “[o]nce 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.” Further, in the context of Internet abuses, courts of many other jurisdictions have found orders that have international effects to be necessary: Equustek, above, at para 95, citing APC v Auchan Telecom, 11/60013, Judgment (28 November 2013) (Tribunal de Grand Instance de Paris); McKeogh v Doe (Irish High Court, case no. 20121254P); Mosley v Google, 11/07970, Judgment (6 November 2013) (Tribunal de Grand Instance de Paris); and ECJ Google Spain SL, Google Inc v Agencia Espanola de Protecciób de Datos, Mario Costeja González, C-131/12 [2014], CURIA. [85] I was concerned about the enforceability of any order against the respondent as he and his server are not physically present in Canada. However, having considered the matter I am satisfied that the issuance of a corrective order in Canada may assist the applicant in pursuing his remedies in Romania. Moreover, as argued by the Commissioner, it may assist in persuading the operators of search engines to de-index the pages carried by the respondent web site. https://www.canlii.org/en/ca/fct/doc/2017/2017fc114/2017fc114.html 13/21