Aga Khan Lawsuit
  • Judgment of Federal Court of Appeal on its Official Website

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    AlnazJiwaPicture.jpgnagib-tajdin-Vanouverite.jpg

    Defendant Alnaz Jiwa

    Defendant Nagib Tajdin

     

    16

     

    Parts of

     

    The Aga Khan Lawsuit

     

    Part 8 of 16

     

    REFERENCE PROCEEDINGS 

    NOTE: Links to His Highness' Notice of Motion and Written Submissions dated May 6, 2013 are provided at the very bottom of this Page under the caption of "sources". You can also acces these and all other legal documents of His Highness on the Page "Legal Documents" (Menu on the left).

       

    SYNOPIS

     

    Reference Proceedings which are in progress mustn't be confused with the proceedings of the main copyright infringement. In the main proceedings, The Honourable Justice S. Harrington found NT and AJ liable for copyright infringement and granted summary judgment in favour of His Highness with Reasons of Judgment on January 7, 2011 and formal Judgment on March 4, 2011 ("Harrington Judgment").

    The Harrington Judgment was upheld by Judgment and Reasons for Judgment by three competent Federal Court of Appeal Judges. Defendants NT and AJ sought leave to appeal the foregoing Judgment to the Supreme Court of Canada. This was denied on June 26, 2012 and thus a 30 months saga of brute crusade of defiance championed by NT and AJ from Dec of 2009 to June of 2012 forever ended.

    Currently, NT and AJ are battling against His Highness vis-à-vis Reference Proceedings.

    By Judgment dated March 4, 2011, Justice Harrington had ordered a reference for damages or profits resulting from NT's and AJ's infringing activities. Chief Justice appointed Madam Prothonotary Milczynsky as Referee. So far Reference Proceedings have consumed more than 25 months of His Highness' so precious time, in addition to wasting Federal court resources.  

    Reference Proceedings were prolonged primarily because NT and AJ sought to evade court discoveries and hide relevant information, specially the identities of purchasers of Infringing Materials. To justify their vexatious, frivolous and meritless defence, NT ferociously latched on harassment-privacy invasion argument. He told the Court that his supporters Mahebub Chatur and Karim Alidina had been harassed and threatened, of course, without producing any shred of evidence to the Court. It appears that in time of extreme desperation, Chatur and Alidina had abandoned NT. In retrospect, we can reasonably conclude that these allegations were also fabricated. Earlier, he had fabricated narratives of Black Legend - spurious allegations of forgery, fraud and the infamous one-minute Karim Allibhay mehmani consent. Refer to Black Legend (Part 6 of 16 Aga Khan Lawsuit).     

    While refusing to stay (hold) the Reference Proceedings, The Honourable Justice Russell noted that Nagib Tajdin was "[R]aising vague and unsubstantiated allegations of possible harassment and privacy infringement" in order to "prevent the Plaintiff [His Highness] from finding out who the relevant parties are". At any rate, Justice Russell dismissed NT's completely absurd appeal and ordered him to pay total costs of the Court and His Highness' solicitors on full indemnity basis.

    Subsequently, NT and AJ were forced to attend court discoveries. NT and AJ refused to answer several relevant questions and abide by their undertakings. In the wake of this defiant attitude, His Highness was compelled to seek the Court's intervention. Referee  Madam Prothonotary Milczynsky ordered NT and AJ to provide answers to the Plaintiff in a span of 30 days. Point # 6 in the Referee Order read:

    "The Defendant Mr. [NAGIB] Tajdin shall answer the questions represented by Item Nos. 14 to 22 on the Revised summary chart of refusals by producing the names of ten people who ordered books, as indicated on the 'Golden Edition Shipping Spreadsheet' (Exhibit 2, Tab 8 of the Discovery Transcript of Mr. Tajdin taken November 8, 2011). The Plaintiff is entitled to select the ten names it wishes to have produced by Mr. Tajdin from this spreadsheet. [...]"

    On Nov. 12, 2012, His Highness identified these 10 names. Some excerpts from His Highness' solicitor's letter read:

    "[...] With respect to item #6 in the [Referee] Order relating to names of persons listed on the Golden Edition Shipping Spreadsheet, we can identify the ten names we would like based upon the shipping date, destination and quantity of books as follows:

    i. 15/02/2010 USA - 92 books

    ii. 15/02/2010 USA - 116 books

    iii. 27/01/2010 CANADA - 100 books

    iv. 27/01/2010 CANADA - 100 books

    v. 27/01/2010 CANADA - 200 books

    vi. 27/02/2010 CANADA - 400 books

    vii. 27/02/2010 CANADA - 200 books

    viii. 15/02/2010 USA - 100 books

    ix. 17/02/2010 CANADA - 300 books

    x. 04/12/2010 CANADA - 600 books

    Can we have the names of the people who ordered these books and to whom they were shipped? I look forward to receiving your answers by November 29, 2012.

    Yours Very Truly

    Brian W. Gray [His Highness' solicitor]

    AJ and NT challenged the Referee Order. They told the Court that the "information" sought by Plaintiff His Highness "is not relevant and is in the nature of a fishing expedition". On April 24th, 2013 Madam Justice Tremblay-Lamer issued an Order ordering the Defendants to provide 10 names of purchasers of Infringing Materials:

    "THIS COURT ORDERS [...] the Defendants to provide the Plaintiff and his legal counsel with the names of ten (10) purchasers of the material in dispute, being a book entitled "Farmans 1957-2009 - Golden Edition Kalam-E Imam-E-Zaman", for the sole purpose of ascertaining the purchase price paid by them." - April 24, 2013,

    Since NT and AJ could construe that they have been granted the powers to select any 10 arbitrary names of purchasers (i.e. Abid, Layla, Abul, Ebrahim, Premji, Alnasir, Dharsee, etc), His Highness's solicitors requested Madam Justice Tremblay-Lamer to redraft her Order that is absolutely compatible with point 6 in the Referee  Madam Prothonotary Milczynsky's Order. The Order should expressly permit the Plaintiff His Highness the Aga Khan to select the ten purchasers.

    Since time was of the essence, His Highness also filed a Motion and an Appeal on May 6, 2013. The magnitude of seriousness His Highness attaches to finding out the names of these 10 high-volume purchasers of Infringing Materials is blatantly obvious and palpable in the letter and spirit of His Highness' submissions and letter. Some excerpts are cited below.

     

     

    His Highness' Letter to Madam Justice Tremblay-Lamer

    May 1, 2013

    "Dear Madam Justice Tremblay-Lamer [...] We are writing to seek clarity with respect to the Order dated April 24, 2013 (the "Order") that was issued pursuant to the hearing [...] The Plaintiff understands that this paragraph [2] of the Order is intended to uphold paragraph of the Order six of the Order of Prothonotary Milczynski dated October 29, 2012 [...]"

    "Paragraph two of the Order, as drafted, could lend to an interpretation that Mr. Tajdin provide the Plaintiff with the names of any ten purchasers of the infringing book, regardless of whether such names are from purchasers listed on the Spreadsheet which was the subject of the question before the court. In contrast, paragraph 6 of the Prothonotary Order states that the Plaintiff [His Highness Prince Aga Khan] be allowed to select the ten names it wishes to have produced from the 'Golden Edition Shipping Spreadsheet [...]"

    "Only if the Plaintiff [His Highness] selects the names can there be any assurance that those persons will be able to give evidence that is representative of the actual purchase price and source of the printed goods [...]"

    "The Plaintiff submits that clarifying the Order in relation to the underlying question that was before the Court will bring certainty to this matter, thereby securing a just, most expeditious and least expensive resolution of this issue."

     

    His Highness' Notice of Motion

    May 8, 2013

    6 "Paragraph two of the Production Order appears to allow the Defendants to produce the names of any ten purchasers of the Golden Edition. It does not expressly permit the Plaintiff to select the ten purchasers whose names the Plaintiff wishes to receive. As a result, the Production Order inadvertently omits to order the same relief contained at paragraph six of the Referee's order dated October 29,2012 (the "Referee Order")"

    7 "Paragraph six of the Referee Order specified that the Plaintiff be allowed to select the ten names it wishes to receive from one of the document productions in this Reference Proceeding, as follows:

    "The Defendant Mr. [NAGIB] Tajdin shall answer the questions represented by Item Nos. 14 to 22 on the Revised summary chart of refusals by producing the names of ten people who ordered books, as indicated on the 'Golden Edition Shipping Spreadsheet' (Exhibit 2, Tab 8 of the Discovery Transcript of Mr. Tajdin taken November 8, 2011). The Plaintiff is entitled to select the ten names it wishes to have produced by Mr. Tajdin from this spreadsheet. [...]"

    8 "The above paragraph six relief contained in the Referee Order was intended to be the "sole" part of the Referee Order upheld on appeal. The Plaintiff respectfully requests that this Court reconsider the Production Order by incorporating the paragraph six relief that was omitted by accident or inadvertence."

     

    His Highness' Written Representations

    May 8, 2013

    20 "It is important that the Plaintiff be able to select the purchaser names from the 'Golden Edition Spreadsheet' since it is the high-volume purchasers who are of most interest to the Plaintiff [His Highness], i.e. those who purchased 100 or more books, as opposed to those who only purchased a handful of books. Unfortunately, it is not clear that his aspect of the Referee Order was incorporated into the Order." - Written Submissions of His Highness May 6, 2013

    21 "The Plaintiff submits that this omission does not accord with other language of the Production Order which refers to setting aside the Referee Order with a "sole exception". Rather, the language of the Production Order indicates that this particular aspect of the Referee Order was intended to be adopted."

    22 "The paragraph two language of the Production Order is ambiguous since it can be interpreted to allow the Defendants to produce any ten purchaser names, contrary to paragraph six of the Referee Order. Since paragraph six of the Referee Order was intended to be upheld by the Production Order, this inconsistency between the two orders was a matter that should have been dealt with, but was. overlooked or accidentally omitted."

    ORDER SOUGHT

    [T]he Plaintiff respectfully requests:

    (a) An Order reconsidering paragraph two of the Order of Justice Tremblay-Lamer dated April 24, 2013, as follows:

    "The Order of the Prothonotary dated October 29,2012 is set aside, with the sole exception that the Court orders the Defendants to provide the Plaintiff and his legal counsel with the names of ten (l0) purchasers of the material in dispute, being a book entitled "Farmans 1957-2009 - Golden Edition Kalam-E Imam-E Zaman", [as set out in paragraph six of the Order of Prothonotary Milczynski dated October 29, 2012], for the sole purpose of ascertaining the purchase price paid by them."

    Sources

    1)    Court Order  by Madam Prothonotary Milczynskyer - Oct 29, 2012

    2)    Court Order by  Madam Justice Tremblay-Lamer - April 24, 2013

    3)    His Highness' Letter to Justice D. Tremblay-Lamer - May 1, 2013

    4)    His Highness' Notice of Motion - May 6, 2013

    5)    His Highness' Written Representations  - May 6, 2013

     

     

     

     

    Continue to Part 9 of 16

    Reference Proceedings

    A Detailed Version

     

     

     

     

     

     

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