Niemela v. Malamas The Court of Appeal stated at paras. 18-19: [18] That said, I agree with counsel for the appellants that this law suit is novel in the sense that there are very few civil cases in Canada that have sought relief under the Charter for alleged Charter violations. It is very much an open question as to what the test for consent should be when the plaintiff or claimant seeks damages alleging that his privacy rights have been breached under s. 8 of the Charter. The same can be said about the Privacy Act and perhaps, the misrepresentation claim. [19] In my view the test for consent in these circumstances cannot be debated without a proper factual foundation on which to explore, develop and apply the tests. I agree with what the chambers judge said in his paragraph 20 to which I earlier referred. [68] In contrast, the present case raises the well-established cause of action of defamation. The novel aspect of the claim is the method of publication (by way of snippets). [69] Further, in the present case the factual foundation is before the Court and is not in dispute; the Court is not required to weigh evidence, assess credibility, or draw inferences against Mr. Niemela. [70] Mr. Niemela argues that a fuller evidentiary record is required in order to assess whether Google is a publisher of snippets. At paragraph 55 of his written argument Mr. Niemela put it this way: 55. Quaere whether in Niemela v. Google Inc. Google is a first or main publisher or a subordinate publisher of the second layer of search results. The answers to the following questions are unknown and may be answered upon examination for discovery of a representative of Google: i. why on Google.ca are there 140 URLs and [210] snippets in the second layer of search results when there are only 7 URLs and 7 snippets in the first layer of search results on Google.ca? ii. why does Google have a second layer of search results; iii. when were the 140 URLs and [210] snippets in the second layer of search results created? iv. who created the 140 URLs and [210] snippets in the second layer of search results? 2015 BCSC 1024 (CanLII) [67] Page 20