2011-06-16 Appeal Factum Against Summary Jugment - Filed by Defendants.
On June 16th 2011, The Defendants filed, in the Federal Court of Appeal of Canada, the Memorandum of Fact and Law for the Appeal against the Summary Judgment.
Inexplicably, on June 14th, immediately after the defendants served him with the document, the Plaintiff's Lawyer, Mr Gray, leaked the information to a newspaper dedicated to demeaning the defendants, two days before it was filed in court.
You may download the Full Memorandum of Fact and Law in printable pdf format, or Keep reading it online below. Note that the Defendants are referred as the 'Apellants', and the Plaintiff is referred to as the 'Respondent'.
APPELLANTS’ MEMORANDUM OF FACT AND LAW
PART I - OVERVIEW
1. This is an appeal by the defendants from the Judgement of The Honourable Justice
Harrington dated March 4, 2011. In that Judgment Justice Harrington granted summary
judgment in favour of the plaintiff, while simultaneously denying the defendants’ motion for
summary judgment.
2. The plaintiff commenced this action by Statement of Claim dated April 6, 2010. By this
action, the plaintiff seeks: (a) a declaration that copyright subsists in the Aga Khan’s literary
work; (b) a declaration that the defendants have infringed the plaintiff’s copyright and moral
rights; (c) injunctive relief; and (d) damages. The infringing material is defined as the
Golden Edition Book (“Golden Edition”) accompanied by its mp3 bookmark.
3. The named plaintiff, His Highness Prince Karim Aga Khan (hereinafter the "Imam" or the
“Aga Khan”), is the spiritual leader of the Shia Imami Ismaili Muslims. There are
approximately 15 million Ismailis worldwide, located in over 25 countries. The Imam
succeeded his grandfather, Sir Sultan Mahomed Shah Aga Khan, to become the 49th
hereditary Imam on July 11, 1957
4. In this action, it is asserted that the appellants have infringed the Aga Khan’s copyright by
distributing His works, known as "Farmans" which are oral Guidance made by Him as Imam
(spiritual leader) when He blesses His Jamats (congregation, "Ismailis").
5. As Ismailis, the appellants are expected to guide their lives according to the Farmans made
by their Imam, who has said that He makes Farmans for the Ismailis, and He has also said
that not abiding by His Farmans can have very serious consequences to the individual.
6. Although the appellants defended this action on the grounds that the litigation has been
commenced and prosecuted by Shafik Sachedina ("Sachedina"), who was appointed as Head
of the Imam's Secretariat in or about December 1996, their main defence is that on August
15, 1992, during His visit to Montreal, the Imam gave His personal consent and authorization
(with blessings for the success of the "work") to publish and distribute His Farmans during
a ceremony known as Mehmani (a religious ceremony when the Imam personally meets His
followers), and, in any event, by virtue of having given an oath of allegiance to the Imam,
thereby becoming His Spiritual Children, the appellants also have an implied consent and
authorization to the Farmans (the Ismaili Constitution which governs all aspects of an Ismaili
life also does not prohibit the activities complained of), and as a result, the activities
complained of are not infringing the Aga Khan's copyrights. The appellants also relied on the
legal concepts of Detrimental Reliance and Latches.
7. The appellant Nagib Tajdin (“Tajdin”) has published about 10 books after the Imam gave His
personal consent, authorization and encouragement on August 15, 1992, to “continue”
publishing His Farmans, The last publication, “Golden Edition” (the publication subject of
this action) contains all of the Farmans previously published by Tajdin with new ones added
after the date of the previous publication. All of the work undertaken by Tajdin was on a
voluntary basis out of love for the Imam and was undertaken without any motivation for
making profits. He invested his time and money and sold the books at nominal prices without
recovering his investments (all projects were deficit projects.)
8. The appellants note that no evidence has been filed denying the giving of consent,
authorization or encouragement in 1992, or any evidence explaining away the words spoken
by the Aga Khan on August 15, 1992, to either deny what was said or to explain what He
might have meant when He said “continue doing what you are doing” while placing His hand
on the Farman Book, which clearly indicated that it was Volume 1 of His Farmans between
1957 to 1991, nor is there any evidence to place limitations or conditions on the words
spoken. Yet, inexplicably, the motions judge speculated about what the Aga Khan might
have meant by the words spoken and also speculated about restrictions on the words spoken
by the Aga Khan in coming to a decision that no consent was given by the Imam in 1992.
The motions judge also held that he would require expert evidence to determine the issue,
but then nonetheless granted judgment.
PART II - STATEMENT OF FACTS
9. The Aga Khan is the spiritual father or “Imam” of the appellants. Farmans are given orally
by the Aga Khan as Imam to His followers (Ismailis) when He grants them an audience, and
the Farmans immediately become binding upon all Ismailis across the world whether or not
they were present to hear the Farman in person.
Appeal Book, Vol 1, Tab 11, p.132, paras. 3, 4; Tab 13, p. 195, paras 2, 4
10. One of the most important tradition of the Ismaili faith is that all Ismailis give their Oath of
Allegiance to their Imam before they are accepted into the Ismaili faith, and in return, the
Imam also reciprocates by giving His promise to protect and to guide them through the
making of Farmans, in their worldly and spiritual lives. The appellants have given their Oath
of Allegiance to the Imam and He in return promised to guide them through the making of
Farmans. The appellants note that there is no evidence at all contradicting or challenging this
issue and as such implied consent could be established by this evidence standing on its own.
Appeal Book, Vol 1, Tab 11, p. 132, paras. 3, 4; Tab 13, p. 195, paras. 2, 4
11. One of the essential obligations of Ismailis is to abide by the Farmans, which are generally delivered
by the Aga Khan orally, or occasionally, He might send a brief written message to the Jamats or
individual Ismailis, which is known as Talika. A Farman remains valid until and unless superceded
by a new Farman.
Appeal Book, Vol 1, Tab 11, p. 132, para. 5, 6; Tab 13, p. 195, para. 3, 4;
Tab 14, p. 209, para. 14
12. As Imam of the Ismailis, the Aga Khan has absolute authority in interpreting the faith for the
Ismailis to practice according to the Time and Age, and accordingly, it is incumbent upon
Ismailis to follow closely every word of every Farman delivered by their Imam, and non
obedience of Farmans with respect to religious matters have serious consequences to an
Ismaili. The Aga Khan has said in this regard:
The Imam’s word on matters of faith is taken as an absolute rule. ... The Community
always follows very closely the personal way of thinking of the Imam. ... An Ismaili
who did not obey My word in matters of faith, would not be excommunicated, he
would still be a Muslim. He simply would no longer be a member of the Jamath [His
followers].
Appeal Book, Vol 1, Tab 13, p. 200, para. 21
13. The Imam Himself has often acknowledged that the Farmans are made for the Jamats (His
followers). On November 29, 1964, the Imam said:
I have given you Farmans which I urge you to follow, because these Farmans I make
are made for My Jamats.
On March 4, 1981, the Imam said:
I have a feeling I may have been speaking at a level which is difficult for some of you
to comprehend. If this is the case, I simply ask you to listen to this Farman at your
own time more peacefully, and try to understand what I have been saying to you.
This is a complex Farman. ... think about it, discuss it with your children, discuss it
with your grandchildren, if they are old enough to think in these terms, and prepare
them to see the way ahead, wisely and properly.
Appeal Book, Vol 1, Tab 13, p.199, para. 19
14. Despite the above, Farmans have not been available for personal study through any official
channel in at least three decades (previously there were printed and distributed to the Jamats).
Cross examinations of Sachedina have established that over 80% of Ismailis have no access
to Farmans. Evidence by Tajdin, confirmed on cross-examination, has established that many
other Ismailis maintain personal collections, and publish Farmans and circulate them
amongst themselves, or to their friends and other Ismailis in accordance with a longstanding
Ismaili tradition.
Appeal Book, Vol 1, Tab 11, p. 133, para. 7, 8,11; Tab 15, p. 215, para. 18-22;
p. 222, para. 57;
Appeal Book, Vol III, Tab 33, p. 668, Q. 633-637; Tab 34, p. 893, Q. 606-614,
Exhibits E, F;
15. In searching for Farmans, the appellant Alnaz Jiwa (“Jiwa”) came across co-appellant Nagib
Tajdin (hereinafter “Tajdin”) who provided Jiwa with Farmans, copies of which he could not
obtain from any institutional body. The first books were obtained by Jiwa in 1993 for his
personal use. Shortly thereafter, Jiwa obtained more Farman books to distribute to friends
and family members and has been distributing the Farman books as they were periodically
published by Tajdin since 1993. Tajdin asked Jiwa to put the monies received from the sale
of the books to be delivered to the Jamat Khana for the benefit of the Aga Khan.
Appeal Book, Vol 1, Tab 6, p. 71, para 40; Tab 13, p. 196, para. 6-10
16. Jiwa undertook the distribution of the Farman books to enable other Ismailis to become
better acquainted with their faith and to enable them to abide by the Farmans, and distributed
these Farman books at the same price he paid for them to his family and friends. Tajdin has
also undertaken these publications as a volunteer of the Aga Khan - not only without the
intention of making profits, but also by investing his own money knowingly that it will not
be recovered, essentially knowingly entering into deficit projects by selling the books at cost,
by giving many books away for free, by cashing his insurance monies, etc. Overall, Tajdin
has lost a huge amount of money all in the name of voluntary spirit, to enable the Ismailis
to have Farmans to enrich their spiritual lives due to love and affection for the Imam and the
Ismailis.
Appeal Book, Vol 1, Tab 11, p. 139, paras. 36, 37; Tab 13, p. 196, paras. 7-9
17. Jiwa states that in distributing Farman books obtained from Tajdin to his families, friends,
and other Ismailis, Jiwa (as well as Tajdin) in loose format (pages) or in book formats over
the years, he has not violated either the Ismaili Constitution or any Farmans of the Imam, the
two primary sources that all Ismailis are obliged to abide by. Farmans made after ordaining of
the New Ismaili Constitution can supercede the Ismaili Constitution in the case of any
inconsistency between the provisions of the Constitution and the Farman.
Appeal Book, Vol 1, Tab 13, p. 196, paras. 11-18
Vol III, Tab 33M, p. 721, Article 2.6
18. The first Farman book was published by Tajdin in August 1992 when the Imam visited
Canada to grant an audience to the Canadian Ismailis. The Imam agreed to personally grant
an audience to approximately 20% of Canadian Ismaili families, and they were to be chosen
alphabetically, and as such Tajdin was unable to personally meet the Imam. Accordingly,
he asked a very good friend of his, Karim Alibhay (“Alibhay”) to present the Farman book
to the Imam and to seek His Guidance.
Appeal Book, Vol 1, Tab 11, p.134, paras. 13-16;
Tab 14, p. 208, paras. 6-9; Tab 15, p. 213, para. 11
19. Alibhay, in Montreal on August 15, 1992, presented the Imam with the first book published by
Tajdin during a personal attendance before Him. The first Farman book clearly indicated on the
cover page that it contained the Aga Khan’s Farmans made to the Western World between 1957 to
1991, and that it was a Volume 1.
Appeal Book, Vol 1, Tab 14, p. 208A, paras. 9-10
20. Alibhay gave evidence that after posing a question to the Imam, the Imam placed His right hand on
his shoulder, His left hand on the book of Farmans and responded in French: “Continuez ce que vous
faites (continue what you are doing), réussissez ce que vous faites (succeed in what you are doing),
et ensuite nous allons voir ce qu'on peut faire ensemble (and then we will see what we can do
together)”. Since then Tajdin has been publishing Farmans (openly to the knowledge of the Imam
and the Institutional leaders) for distribution on a non-profit basis to the followers of the Imam.
Appeal Book, Vol 1, Tab 14, p. 209, para. 6-12
21. Most important, the presenting of the Farman Book to the Imam has been recorded on video and
despite asking for same, has not been produced to the appellants or to the court, and its existence has
not been denied. This would have been the best evidence concerning the presentation of the Farman
book to the Imam and his response. An adverse inference could and should have been drawn due
to the failure to produce this best evidence that goes to the heart of the issues raised in defence. As
noted above, there is no evidence tendered at all to dispute Alibhay’s evidence and he was not cross-
examined.
Appeal Book, Vol 1, Tab 13, p. 201, para. 25, 26; Tab 14, p. 209, para. 15, 16;
Tab 15, p. 214, para. 14-18
22. Based on the Imam’s direction and encouragement to “continue” the work, with blessings for
success, Tajdin has been publishing and openly distributing Farmans as from August of 1992 to his
family, friends, and other Ismailis on a non-profit basis since the year 1993. The last book
(Golden Edition) was published in December 2009.
Appeal Book, Vol 1, Tab 7, p. 89, para. 30-35; Tab 11, p. 132, para. 18-21, 36;
Tab 13, p. 195, paras. 6-9;Tab 15, p. 214, paras. 12,13,36, 52, 54;
23. The appellants state that they cannot be said to be infringing the Copyright of the Imam when
they acted on the Imam’s personal authorization and encouragement to “continue the work”
which has not been revoked by Him. The two letters and the Affirmation purported to have
been signed by the Aga Khan is the only evidence which could be said to have revoked the
1992 consent. The appellants’ expert has made a finding that these documents are not signed
by the Aga Khan.
Appeal Book, Vol 1, Tab 12B, 12E, p.169, 189; Vol II, Tab 26J, p. 443
Tab 18B,18C,18D, p.308, 322, 333
24. However, even if the documents were authentic, they were signed in the year 2010, well after
the Golden Edition was published and distributed, which raises the issues of whether it is an
infringement to publishing of the books before the consent is revoked, and whether once
published an injunction can issue prohibiting the books published during the consent period.
PART III - STATEMENT OF ISSUES
25. The appellants raise the following issues for determination:
(a) Whether the motions judge erred in law when, contrary to Rule 216(1), he failed to
consider whether there was a genuine issue for trial but instead proceeded as though
he were the trial judge;
(b) Whether the motions judge erred in law in admitting and relying on hearsay evidence
(the two letters and the Affirmation purportedly signed by the Aga Khan) to ground
his judgement;
(c) Whether the motions judge erred in law in relying on the evidence of the
respondent’s expert after finding that the experts’ evidence was contradictory;
(d) Whether the motions judge erred in finding that the experts’ evidence was
contradictory;
(e) Whether the motions judge erred in law by drawing inferences without the necessary
facts on the record, and/or on drawing inferences on contested facts;
(f) Whether the motions judge erred in rejecting the unchallenged evidence of Alibhay
who was not cross-examined, and in relying on the evidence of Sachedina when his
evidence not only was contradicted by Tajdin but also by Mohamed Tajdin’s
(“Mohamed”) evidence (who was not cross-examined);
(g) Whether the motions judge erred in speculating what the Aga Khan might have meant
when he said, “Continuing doing what you are doing”when there was no evidence at
all on this issue to either contest the evidence of Alibhay, or to explain away the words
spoken;
(h) Whether the motions judge misapprehended evidence of the words spoken “continue
the work” by the Aga Khan in 1992 when he concluded that the Aga Khan never gave
consent to the publication of the Farmans, despite jurisprudence on the issue (that
consent can be implied from relationship, conduct, including indifference);
(i) Whether the motions judge erred in granting a judgement after acknowledging that he
had no expert evidence on the issue of religious gestures relating to the issue of the
personal consent and authorization given by the Aga Khan on August 15, 1992;
(j) Whether the motions judge erred in making a determination on the issue of
authorization and consent and implied consent without a factual underpinning on the
complex issues;
(k) Even if the consent and authorization given by the Aga Khan on August 15, 1992, to
“continue the work” was revoked after the date of the publication of the Golden
Edition, whether the appellants could be found to have infringed on the Aga Khan’s
Copyright, and whether an injunction could issue restraining the further distribution of
the Golden Edition without being liable for the damages suffered by the appellants for
same?
(l) Whether a party responding to a motion for summary judgment is required to file all
evidence as if they were conducting a trial and in failing to do so, the party risks having
an adverse inference drawn against them, and judgment granted?
(m) Whether the motions judge erred in speculating what the impact of the discoveries were
when there was no evidence on the record, and erred in stating that the attendance was
proof positive that the consent, if given, was revoked;
(n) Whether the motions Judge erred in interpreting the Ismaili Constitution and its impact
on the issue of implied consent in the issue of Copyright infringement;
(o) Whether the motions Judge erred in holding that the onus is on the appellants to prove
consent contrary to the holding made by the Federal Court of Appeal in Positive
Attitude Safety System Inc. v. Albian Sands Energy Inc., 2005 CarswellNat 3575 (Tab
13), which held that the plaintiff had the onus of proof of no consent;
(p) Whether the entered order goes beyond what is sought for in the Statement of Claim
(infringing materials is defined as the Golden Edition), but the Judgment granted is
much broader in that regard;
(q) Whether the motions judge erred in his assessment and his finding on the issue of
Latches;
(r) Whether the issue of Detrimental Reliance applies, given the fact that appellants had
changed their position after the Aga Khan had said in 1992 to “continue doing what
you are doing”?
(s) Whether the motions judge had jurisdiction and /or whether he erred on the issue of
Ordering Costs be payable to the plaintiff when the Notice of Motion did not seek that
relief.
PART IV - LAW AND ARGUMENT
Standard of Review
26. In determining what the standard of review is from an appeal from a judge's decision, the
Ontario Superior Court of Justice (Divisional Court) referred to the decision in Housen v.
Nikolaisen, [2002] 2 S.C.R. 235, 211 D.L.R. (4th) 577, [2002] S.C.J. No. 31 (S.C.C.) (cited
to Q.L.), and summarized the law as follows:
“The standard of review on a motion for summary judgment does not require an
analysis of whether a palpable and overriding error has been made by the judge hearing
the motion. It is strictly one of correctness.”
Canadian Imperial Bank of Commerce v. F-1 Holdings & Investments Inc., 2007
CarswellOnt 8012, at paras 5-8; Appellants’ Brief of Authorities, Tab 3
27. Justice Himel in B. (F.) v. G. (S.) (2001), 199 D.L.R. (4th) 554 (Ont. S.C.J.), explains why the
appropriate standard of review of a summary judgment should be one of correctness as follows:
“In a motion for summary judgment, the judge hearing the motion is not finding facts
but, rather, is determining whether or not there is a genuine issue for trial. ... On an
appeal of an order of summary judgment, the appellate court must determine whether
the judge applied the appropriate test and whether there was any error in its application.
... The standard of appellate review is, therefore, a standard of correctness, not a
standard of deference applied to findings of fact in a trial.
B. (F.) v. G. (S.), 2001 CarswellOnt 1413, (O.S.C.J), at para. 10
Appellants’ Brief of Authorities, Tab 4
28. Accordingly, the appellants submit that the appropriate standard of review for reviewing the
decision of a motion judge’s hearing motions for summary judgment is a standard of
correctness, in so far as he is assessing whether there is a genuine issue for trial, and when he
is exercising his discretion in determining the issue of granting judgment pursuant to Rule
216(3), then the standard is whether the judge gave sufficient weight to all relevant
considerations.
MacNeil Estate v. Canada (Department of Indian & Northern Affairs), 2004 FCA
50, [2004] 3 F.C.R. 3 (F.C.A.) at para 28
Appellants’ Brief of Authorities, Tab 6
Role of the Motions Judge / Appropriateness of Summary Motion
29. The motions judge started his reasons for decision by stating that the “only issue in these cross-
motions for summary judgment is whether the Aga Khan gave the appellants his consent to
publish his literary works known as Farmans and Talikas.” [Emphasis added]. However, as
noted in paragraph 9 above, the appellants are not only relying on the issue of consent as
articulated by the motions judge.
Appeal Book, Vol 1, Tab 3, p..23, para. 1
30. The motions judge erred in focusing on the merits of the action as opposed to the more limited
question of “genuine issue” which is the cornerstone of a motion for summary judgment.
Having made that error, the motions judge then proceeded to analyze the evidence as a trial
judge as opposed to a motions judge. The motions judge erred in failing to determine properly
the import of the following issues:
a. issue of the oath of allegiance given by the appellants to their Imam and in exchange
the promise by the Imam to guide His flock which would mean that an individual who
is the Imam’s follower is entitled as of right to the Guidance issued by his spiritual
guide and to distribute them to his families and fellow Ismailis;
Appeal Book, Vol 1, Tab 11, p.132, paras. 3, 4; Tab 13, p. 195, para. 2
Tab 33M, p. 706, Articles D-F
b. issue of whether the Ismaili Constitution is a complete code of conduct and whether
the Ismaili Constitution supercedes the provisions of Copyright Act in that it could be
considered as an implied consent, consent by conduct and/or relationship;
Appeal Book, Vol 1, Tab 13, p. 196, para. 11-23
c. issue of the Farmans made by the Imam wherein He urges His followers to abide by
every word of His, that He makes Farmans for His followers, and many other such
Guidance which could be deemed to be implied consent;
Appeal Book, Vol 1, Tab 13, p. 199, paras. 18 -22
d. issue of the continuous publication of Farmans from 1992 with the knowledge of the
Imam and his institutional leaders thus precluding the granting of an injunction on the
legal consent of “Latches”, and or “Detrimental Reliance”; and
Appeal Book, Vol 1, Tab 13, p. 196, para. 6,10; Tab 15, p. 216, paras. 26, 36
Vol II, Tab 26, p. 395, para. 14; Vol III, Tab 34, p. 750, Q. 468-470
e if this litigation or the letters purportedly written by the Aga Khan is deemed to revoke
the consent given by Him in 1992, then can it retroactively prohibit the publication of
the Golden Edition which was published within the period the consent was effective.
31. The motions judge identified (at para. 60) numerous questions that remained unanswered, and
in light of such fundamental questions remaining in doubt, the motions judge erred in granting
summary judgment. In the case of Garford Pty Ltd., Justice James Russell sternly drew the
distinction between hearing a motion for summary and trials at para. 9 as follows:
"A motion for summary judgment is not intended, and should not be treated, as a
substitute for a trial. In determining whether a trial is unnecessary and would serve
no purpose, the motions judge must guard against assuming the role of a trial judge and
deciding the issues" and at paragraph 10, he states that, "... [summary judgment] should
not be granted where, on the whole of the evidence, the judge cannot find the
necessary facts or it would be unjust to do so. If there are serious factual or legal
issues that must be resolved, the case is not appropriate for summary judgment."
[Emphasis added]
Garford Pty Ltd. v. Dywidag Systems International Canada Ltd., 2010 FC 996
Appellants’ Brief of Authorities, Tab 5, paras. 6-9
32. The motions judge’s decision relying on inadmissible hearsay evidence (paras. 18, 20, 23, 30,
44), drawing an adverse inference (paras. 58-65), preferring one version of evidence when
faced with contradictory evidence (para. 19), drawing inferences from contested evidence
(para. 44), without explaining why the contradictory evidence between Bhaloo and Sachedina
against Tajdin and Mohamed (who was not even cross-examined) did not raise a serious
credibility issue when the evidence they contradicted on was on material issues, ignoring
evidence that was not challenged and in speculating (without any underlying evidence) on what
might have been meant when the Imam said, “continue doing what you are doing” (paras. 39-
46), drawing an adverse inference (paras. 25, 59, 60, 63 67) because evidence was not led on
all of the issues are all indications of the motions judge misapprehending his role as a trial
judge as opposed to being a motions judge.
Appeal Book, Vol 1, Tab 3
33. Rule 216(3) permits a judge on a motion for summary judgment, after finding that a "genuine
issue" exists, to conduct a trial on the affidavit evidence with a view to determining the issues
in the action. However, this is not always possible, particularly where there are conflicts in the
evidence, where the case turns on the drawing of inferences or where serious issues of
credibility are raised (MacNeil Estate), and a motions judge can only make findings of fact or
law provided the relevant evidence is available on the record and does not involve a "serious"
question of fact or law which turns on the drawing of inferences (para. 33 of MacNeil Estate).
A respondent to a motion for summary judgment does not have the onus as they would if they
were plaintiffs at trial, and do not have the burden of proving all of the facts of their case.
Rule 216(3), Appellant’s Brief of Authorities, Tab 2
MacNeil Estate, supra, at paras 25, 36, 37, 38; Appellants’ Authorities, Tab 6
Petrillo v. Allmax Nutrition Inc., 2006 CarswellNat 3328, 300 F.T.R. 262.
paras. 40, 41, 42, 45, 49; Appellant’s Authorities, Tab 26
34. The Federal Court of Appeal in the case of Pyrrha held that when significant consequences
flow from a summary judgment decision on an issue [under Copyright Act] which had not
previously been litigated in Canada and that difficult issue should not be decided in a summary
way without have more evidence at trial on the issues.
Pyrrha Design Inc. v. 623735 Saskatchewa Ltd., 2004 Carswellnat 4660, 2004
FCA 423, at para 13; Appellants’ Brief of Authorities, Tab 27
Admissibility of Evidence
35. The respondent’s evidence consists of five affidavits: by Sachedina; by Aziz Bhaloo
("Bhaloo"); by Jennifer Colman ("Colman"); by Daniel Gleason ("Gleason"); and by Brian
Lindblom ("Lindblom") an expert witness. All of the evidence filed primarily consists of
hearsay and/or double hearsay evidence, or documents attached to Exhibits to their affidavits,
which documents are in the nature of hearsay. Such evidence can only be admitted if the
grounds of necessity and reliability (Merck Frosst Canada Inc.) are satisfied. The motions
judge erred in law in admitting (and in relying) on the impugned evidence, and also founding
his judgment almost entirely on the impugned evidence, evidence which was materially
contradicted by the appellants’ evidence, some of which was not even cross-examined.
Appeal Book, Vol II, Tabs 26, 27, 28, 29, 30, p. 392-489
36. Sachedina’s affidavit and Bhaloo's affidavit were entirely based on hearsay or double hearsay
evidence, and Sachedina attached two letters purportedly written by the Aga Khan as exhibits
to his affidavit. Gleason and Colman attached an Affirmation purportedly signed by the Aga
Khan as an exhibit to their affidavit, all without tendering any evidence of necessity and
reliability to make these attachments admissible.
Appeal Book, Vol II, Tab 26 & 27; Tab 28A; Tab 29A.
Vol I, Tab 18B,18C,18D, pp.308, 322, 333
37. Sachedina confirmed on cross-examinations that the Aga Khan did not instruct them or ask
them to file evidence on his behalf or at all, and that they did not consult with the Aga Khan
nor did they review the contents of their affidavits with the Aga Khan, essentially confirming
the appellants’ evidence that they are the instructing minds in this litigation.
Appeal Book, Vol III, Tab 34, p. 750, Q. 25,26,28-33; Tab 35, p.1040, Q. 6
38. Associate Justice K. Sharlow of the Federal Court of Appeal in the case of Candrug Health
Solutions Inc., allowed the appeal and reversed the motion’s judge’s order after reviewing
thirteen affidavits and finding that many affidavits did not contain admissible evidence and/or
evidence capable of supporting the evidence required to support the issue in question, and said
that: “It is not clear from the judge's reasons whether and to what extent he relied on any of this
evidence, but I must conclude with respect that any such reliance would have been misplaced.”
Candrug Health Solutions Inc. v. Thorkelson, 2008 CarswellNat 663, 2008 FCA
100, at para. 14; Appellants’ Brief of Authorities, Tab 8
39. Additionally, the court in Merck & Co. stated:
“In my opinion the evidence in question is clearly hearsay and is precluded from
admission unless it be admissible by some exception to the hearsay rule. That rule, as
defined by Sopinka, Lederman and Bryant in The Law of Evidence in Canada, (1992,
Butterworths, Toronto) p. 156, may be stated as follows:
“Written or oral statements, or communicative conduct made by persons
otherwise than in testimony at the proceeding in which it is offered, are
inadmissible, if such statements or conduct are tendered either as proof of their
truth or as proof of assertions implicit therein.”
Merck & Co. v. Apotex Inc. 1998 CarswellNat 560, 79 C.P.R. (3d) 501, 146 F.T.R.
148, at para. 7; Appellants’ Brief of Authorities, Tab 9
40. A comprehensive analysis on the issue of hearsay is set out in Rees.
Rees v. Royal Canadian Mounted Police, 2005 CarswellNfld 83, 2005 NLCA 15
at paras 71-73; Appellants’ Brief of Authorities, Tab 10.
41. The Court in the case of T.E.A.M. sternly reminded the importance of requiring parties to bring
forth “best evidence” as follows:
“The court should afford little or no weight to hearsay evidence ... Reliance on hearsay
evidence should be particularly discouraged in the context of a summary judgment
motion. Parties are urged to put their best evidence before the court in a direct fashion
when they seek a summary judgment in their favour: Podkriznik v. Schwede,[1990]
M.J. No. 179, 64 Man. R. (2d) 199 (Man. C.A.).” [Emphasis added]
T.E.A.M. v. Manitoba Telecom Services Inc., 2005 CarswellMan 446, 206 Man. R.
(2d) 39, para. 10; Appellants’ Brief of Authorities, Tab 11
42. Justice Gibson in the case of American Cyanamid Co. said as follows:
“I conclude that it would be quite inappropriate to allow the defendant to rely on this
motion for summary judgment on evidence, whether or not it is "other evidence", that
it would not be entitled to rely on at trial.
American Cyanamid Co. v. Bio Agri Mix Ltd., 1997 CarswellNat 636, 73 C.P.R.
(3d) 277, 127 F.T.R. 274, at para 10; Appellants’ Brief of Authorities, Tab 7,
Voltige Inc. v. Cirque X Inc., 2006 FC 686, 2006 CarswellNat 2808, paras. 13, 14
Appellants’ Brief of Authorities, Tab 29
43. Justice Pelletier, in Canadian Memorial Services, held that “One cannot create a credibility
issue by tendering inadmissable evidence” and said that the case raised a credibility issue
making the disposition inappropriate by summary proceedings.
Canadian Memorial Services v. Personal Funeral Services Ltd., 182 F.T.R. 28, 2000
CarswellNat 149, paras 11, 12; Appellants’ Brief of Authorities, Tab 30
Conflicting Evidence
44. Jurisprudence has consistently held that assessment of credibility should be decided at a trial
where the witnesses are cross-examined before a trial judge who must observe the witnesses
give viva voce evidence before deciding the question of credibility, which witness’ testimony
be accepted or rejected.
45. The motions judge held (at para. 19) that the “experts’ reports are contradictory”, but then
accepted the respondent’s expert’s opinion (or non-opnion) and rejecting the appellants’
expert’s finding to ground his decision. The issue of contradictory expert’s findings was an
issue in a motion for summary judgment before Justice Hugessen, who referred to a decision
of the Federal Court of Appeal as follows:
“Clearly the two experts conflict. Both were cross-examined at some length. Neither
resiled from his opinion. That seems to me is the classic circumstance in which the
Court ought not to grant summary judgment and I would cite Trojan Technologies Inc.
v. Suntec Environmental Inc. ( 2004), 31 C.P.R. (4th) 241 (F.C.A.) as a sufficient
authority for that proposition.”
Rivard Instruments Inc. v. Ideal Instruments Inc., 2007 CarswellNat 2695, 2007 FC
870, at para 9; Appellants’ Brief of Authorities, Tab 12
46. However, the evidence does not support the finding made by the motions judge that the
experts’ reports were contradictory. The appellants’ expert conclusively made a finding that
the Aga Khan did not sign the two letters and the Affirmation. The respondent’s expert did not
contradict this finding at all. In his report, the respondent’s expert stated that he could not
make a determination of the question that the Aga Khan had signed the questioned documents
because the quality of the documents given to him was of poor quality. On cross-examination
he admitted that he asked respondent’s counsel, Mr. Gray, “repeatedly” for original documents
which were alleged not to have been signed by the Aga Khan and some contemporary
signatures of the Aga Khan for his review to determine if the appellants’ expert’s findings
could be impeached. Although the respondent’s counsel purportedly said that he had three
original copies of the Affirmation, he did not give even one of the three original copies for
examination by his own expert, nor give contemporary sample signatures of the Aga Khan to
his expert for review.
Appeal Book, Vol 1, Tab 18B,18C,18D, pp. 308, 322, 333
Vol IV, Tab 37, p. 1220, Q. 228-231
47. The respondent’s expert admitted on cross-examination that he was not retained to make a
determination of whether the documents in question were signed by the Aga Khan but that he
was retained to critique the appellants’ expert. He also admitted that he had in the past made
positive determination on the authenticity of a questioned signature on a facsimile copy, and
also admitted that he had undertaken a study which had found that 183 experts out of 186 got
their assessment of the authenticity of signatures correct from reviewing photocopies.
Appeal Book, Vol IV, Tab 37, p. 1220, Q. 100-103, 216-233; Tab 37E
48. Notably though, the respondent’s expert did not contradict the findings made by the appellants’
expert, yet the motions judge inexplicably dismissed entirely the appellants’ expert’s
uncontradicted evidence that the two letters and the Affirmation were not signed by the Aga
Khan.
49. Similarly, Justice Harrington also erred in preferring the evidence of Sachedina and Bhaloo
when their evidence was materially contradicted by Tajdin’s and Mohamed’s evidence (who
was not cross-examined). Sachedina‘s evidence was that since late 90s (after his appointment
in late 1996 and early 1997 at the Imam’s secretariat), the Imam frequently informed him (a
classic hearsay statement) that he was concerned about Tajdin publishing Farman books.
However, his evidence was self-serving and he could not give any details of the information,
when, where, how, etc., the alleged statements were made by the Aga Khan. Sachedina also
declared in his affidavit that he traveled with Bhaloo to Montreal in 1998 inform Tajdin of the
Imam’s position. Justice Harrington relied on this evidence (para. 44) to found his decision
despite the fact that Mohamed and Tajdin materially contradicted their evidence that Sachedina
and Bhaloo did not come to visit Tajdin as deposed by them but that both of them attended a
National fund raising as Guests of Honour (photos enclosed) for the Focus Humanitarian
Group. at the invitation of Mohamed who organized the fund raising event.
Appeal Book, Vol 1, Tab 15, paras. 12-17, 24-39; Tab 17, p. 282, paras. 13-14
50. Mohamed also testified that the meeting with Sachedina and Bhaloo (both of whom were
invited as guests) was organized at the request of Tajdin. Both gave evidence that Sachedina
did not convey any message concerning the ceasing the distribution of the Farman books, and
instead had brought a special message from the Aga Khan to Tajdin family with special
Blessings for their services to the community. Mohamed was not cross-examined on his
affidavit (he has served the Imam and his institutions for three continuous decades in various
voluntary capacity, and currently he (an engineer) and his wife (a physician) are serving the
Imam in senior positions in a voluntary capacity (without any pay or remuneration) for several
years at the Aga Khan Hospital in Kenya as their gift to the Imam for his Golden Jubilee.)
Appeal Book, Vol 1, Tab 17, p. 282, paras. 5-9, 19,22
Appeal Book, Vol 1, Tab 15, p. 212, paras. 35-38
51. Sachedina’s evidence is further eroded in light of the fact that Bhaloo was the Vice President
of the National Council for Canada from 1987 to 1993 and was the organizer for the Aga
Khan’s visit to Montreal in 1992 when the first Farman book was presented to the Aga Khan
and he would have the video of that event but has not produced it. He was also then appointed
as President from 1993 to 1999 during which time Tajdin printed most of the Farman books.
As the most senior leader of Canada, he agreed that he frequently met the Aga Khan during the
relevant period, and yet the Aga Khan never told him that he wanted Tajdin to cease the work
complained off. It is not a coincident that the complaints alleged to be from the Aga Khan
commenced after Sachedina came on board, and who is responsible for the forged letters to be
sent to Tajdin after Tajdin responded to him that he would abide by the Aga Khan’s
instructions.
Appeal Book, Vol I, Tab 16, p. 242, paras.25, 30-31; Tab 15, p. 218, paras. 35, 36;
Vol II, Tab 27, paras. 2-4
52. Justice Harrington made findings of fact despite the seriously contested evidence that goes to
the heart of the dispute contrary to MacNeil Estate and Garford mentioned above. (Sachedina
was contradicted by Tajdin and by Mohamed, who was not even cross-examined. The motions
judge did not even explain why he relied on Sachedina’s evidence to ground his judgment
(although hearsay) and more importantly, why he rejected the evidence of Tajdin (who did not
resile on cross-examination) and Mohamed (who was not cross-examined)). It is submitted
that the Ismaili Constitution, the Ismaili traditions and the Aga Khan’s Farmans all are
contradictory to Sachedina’s evidence in addition to being contradicted by Tajdin and
Mohamed’s evidence.
Onus to Prove Consent
53. The Motions Judge erred in holding (at para. 46) "I am unable to accept the defendants'
tortuous, convoluted reasoning" on the issue of onus of proof. In doing so, he rejected the
appellants’ reliance on a Federal Court of Appeal ruling on point in Positive Attitude Safety
System Inc. held as follows:
“However, even if one assumes that the motion judge was right to consider the
question, the difficulty is that copyright is defined in terms of the absence of the
consent of the owner of the copyright.”
“Consequently, proof of copyright infringement requires proof of lack of consent. It
is therefore illogical to conclude that there has been infringement, subject to the effect
of a purported license. It may be that a party has done something which, by the terms
of the Copyright Act, R.S.C. 1985, c. C-42, only the owner of the copyright may do.
But, before that conduct can be defined as infringement, the judge must find that the
owner of the copyright did not consent to that conduct.” [Emphasis added]
Positive Attitude Safety System Inc. v. Albian Sands Energy Inc., 2005 CarswellNat
3575, 2005 FCA 332, paras 39, 40; Appellants’ Brief of Authorities, Tab 13
54. The above case has approvingly cited in the Canadian Law of Copyright & Industrial Design,
4th Edition (Carswell), at page 21-7:
"In order to show infringement the plaintiff must provide proof of lack of consent".
Justice Russel W. Zinn of this Court in the recent case of Atomic Energy of Canada
Ltd. v. Areva NP Canada Ltd., 2009 FC 980, also held that a plaintiff must prove, on
a balance of probabilities "that there has been a copying from that work without its
consent."
Canadian Law of Copyright & Industrial Design, 4th Edition (Carswell), p. 21-7
Appellants’ Brief of Authorities, Tab 14
55. The motions judge erred in law in not applying the law on onus with respect to the proof of
consent. There is no evidence led on this point at all to prove lack of consent, particularly a
important point in light of Alibhay’s evidence of presenting the book to the Aga Khan in 1992.
Express Consent, Authorization and Instruction
56. The motions judge held that the Aga Khan did not consent to the publication of any Farmans,
and also speculated as to what the Imam might have meant when he said the words, “continue
doing what you are doing” or that He might have wanted only Alibhay to publish, or just that
first book to be published. The motions judge also opined that he would need expert evidence
to be able to understand the “gestures” during the ceremony of Mehmani when Alibhay
presented the Farman book to the Imam in Montreal on August 15, 1992, to help understand
the words spoken by the Aga Khan at that time. In Robertson, the Court held that “a
freelancer who knows the uses to be made of a work and expresses no limitations can arguably
be said to impliedly licence the publisher to make use of the work within those contemplated
uses.”
Appeal Book, Vol 1, Tab 3. p. 35, paras. 41, 45, 46; Tab 14, p. 208, paras. 11, 12
Robertson v. Thomson Corp. 2001 CarswellOnt 3467, 15 C.P.R.(4th) 147
Appellants’ Brief of Authorities, Tab 23, para. 158
57. Alibhay gave evidence (he was not cross-examined) that Tajdin gave him a copy of the first
Farman book to present to the Imam (as people were chosen by their last name to present their
offerings to the Imam and Tajdin was not chosen as part of the group of people who could
present themselves personally before the Imam). On August 15, 1992, Alibhay presented the
first Farman prominently titled, “Farmans to the Western World, 1957-1991, Volume 1,” to
the Imam. The Imam first blessed Alibhay and his family and thereafter, the Imam looked at
the Farman book when Alibhay asked the Imam what else could they do to serve the Imam.
The Imam after placing His hand on the Farman book said: "continue doing what you are
doing" in response to the question. The Imam then said, “Succeed in what you do”.
Appeal Book, Vol 1, Tab 14, p. 208a, paras. 8-12
58. It is after this event that Tajdin commenced distributing the first Farman book and published
(continuously) about 9 more books between 1992 and 2009, when the last book (Golden
Edition) was published by him.
Appeal Book, Vol 1, Tab 11, p. 134, paras. 13, 19 -29
59. It is noteworthy that no evidence at all was led on behalf of the Aga Khan denying speaking
the words as described by Alibhay, nor seeking either to explain away what He meant, or to
try to restrict what he said as speculated by the motions judge. The sole evidence on this issue
is the evidence of Alibhay. Yes, inexplicably, the motions judge speculated what the Imam
might have meant and came to a decision that the Aga Khan never consented to the publication
of His works.
Appeal Book, Vol 1, Tab 14, page 208, para. 11-12
60. In the case of Concept Developments Ltd., the Court explained the matter of authorization as
follows:
“The issue of (c) the question of "authorization" is both legally and factually complex.
It is best described in CCH Canadian Ltd. v. Law Society of Upper Canada, [2004] 1
S.C.R. 339, at para 38:
"Authorize" means to "sanction, approve and countenance": Muzak Corp. v.
Composers, Authors and Publishers Association of Canada, Ltd., [1953] 2 S.C.R. 182,
at p. 193; De Tervagne v. Beloeil (Town), [1993] 3 F.C. 227 (T.D.). Countenance in the
context of authorizing copyright infringement must be understood in its strongest
dictionary meaning, namely, "[g]ive approval to; sanction, permit; favour, encourage":
see The New Shorter Oxford English Dictionary (1993), vol. 1, at p. 526. Authorization
is a question of fact that depends on the circumstances of each particular case and can
be inferred from acts that are less than direct and positive, including a sufficient degree
of indifference ... These are determinations best left to a trial judge to weigh in the
context of all of the evidence.”
Concept Developments Ltd. v. Webb, 2010 CarswellNat 4906, 2010 FC 1315
Appellants’ Brief of Authorities, Tab 15, para. 11
61. Justice Joyal in the case of de Tervagne v. Beloeil (Town), held (at Para. 45) that a factor to
determine this issue is whether a reasonable person is led to conclude that consent has been
given. He then said:
"... it is possible to establish that a person has sanctioned, approved or countenanced
an actual infringing activity ... if it is shown that certain relationships existed between
the alleged authorizer and the actual infringer, or that the alleged authorizer conducted
himself in a certain manner." [Emphasis added]. In the case of BMG Canada, the
Court held that authorization can be inferred from less than direct acts including a
sufficient degree of indifference.
de Tervagne v. Beloeil (Town), [1993] 3 F.C. 227, Tab 16, paras. 42, 44, 45, 49
BMG Canada Inc. v. John Doe, 2004 FC 488, Tab 11, para 24
62. The Court in Concept also reminds the limits of summary procedures as follows:
“However, these summary procedures have their limits. Trials are the ways by which
true disputes are resolved. People have a right to their day in court to deal with
legitimate claims. Courts must be mindful that the effect of a summary judgment
motion can deprive a party of that right.”
Concept Developments Ltd. v. Webb, supra, at para 15
Appellants’ Brief of Authorities, Tab 15
63. The appellants’ state that the relationship between the parties, the Ismaili Constitution, the
Oath of Allegiance, the various public Farmans encouraging the reading of the Farmans, the
saying that He makes Farmans for the Jamats, the words spoken by the Aga Khan during the
Mehmani are complex matters, and these types of “complex” issues are best left for a trial
judge to determine. It has been held that a licence to use may be implied from the conduct of
the parties and need not be in writing.
Appeal Book, Vol 1, Tab 15, p. 212 para. 17; Vol III, Tab 34, p. 750 Q. 195-197
64. It is submitted that the motions judge erred when he made findings of fact (at para 11) in his
reasons for decision: "I declare that the Aga Khan has never given the defendants permission
to publish any Farman, much less the Golden Edition", in face of Alibhay's unchallenged and
uncontradicted evidence, and the motions judge's admission that he might have needed expert
evidence to determine the issues which were of religious nature. The conflicting and/or the
missing evidence, as held by the motions judge, in respect of authorization and/or consent, the
interpretation of the Ismaili Constitution, the interpretation of Farmans and the issue of
relationship are all complex matters and presented genuine issues for trial. It is noteworthy that
the Ismaili Constitution governs all aspects of an Ismaili’s life, and publishing Farmans is no
longer prohibited under the new 1986 Ismaili Constitution, and it raises an issue of whether
the Copyright Act is superceded by the Ismaili Constitution.
65. The motions judge made findings in regard to the provisions and import of the Ismaili
Constitution on the issues before him. In this regard, Snider J. held:
“there is a significant gap in the evidence required to determine the proper
interpretation of the provisions (of the Regulations). That missing evidence relates to
the intent and object of both the regulations at issue and the underlying statutory
framework. It consists of further evidence from Merck, third party evidence and
evidence from government officials, as described below.” ... “the context of
legislation is critical to understanding it. Expert evidence on statutory interpretation
or, in particular, the evolution of the provisions in dispute in this action will be helpful
to the judge. ... The Regulations were the subject of extensive consultation prior to their
enactment in 1993 and their amendment in 1998. The understanding of the parties to
this action may well be relevant in establishing the contextual framework. ... The
conduct of all parties to this litigation may be relevant.”
Apotex Inc. v. Merck & Co., 2004 CarswellNat 584, 2004 FC 314, 248 F.T.R. 8
Appellants’ Brief of Authorities, Tab 17, at paras. 28, 35, 36, 37
66. After stating the above, Snider J. concluded that, “In my view, all of this evidence is relevant
to the determination of the issues in this matter. Further, much of this evidence will be
contested and, thus, is properly dealt with at trial. Apotex should not be precluded, through
summary judgment, from leading this evidence.” Accordingly, the motions judge erred in
holding on the issue of interpreting the Ismaili Constitution contrary to jurisprudence.
Apotex Inc. v. Merck & Co., supra, at para. 36
Appellants’ Brief of Authorities, Tab 17
67. In considering the issues relating to Libel and Slander Act, the Ontario Court of Appeal in
Romano v. D'Onofrio stated that, "This was not a case where the law was settled and could be
applied to admitted facts." The Court said: "Matters of law which have not been settled fully
in our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings.
The Court went on to hold that; "That type of interpretive analysis should only be done in the
context of a full factual record, possibly including appropriate expert evidence”
Romano v. D'Onofrio, 2005 CarswellOnt 6725, (O.C.A.), paras. 7, 9
Appellants’ Brief of Authorities, Tab 22
68. In the case at bar, the issues are complicated and not previously litigated, and the interpretation
of the Ismaili Constitution and the religious nature of the issues are the type for which
interpretative analysis would require a trial and possibly expert evidence to properly understand
and deal with the matter.
69. The motions judge also misapprehended evidence when he held that at para. 2: "They say that
if the Aga Khan is not pleased with what they are doing, all he has to do is amend the Ismaili
Constitution, or simply issue a Farman, as a new Farman has the effect of overriding the
Ismaili Constitution. However, it is not up to the defendants to dictate to the Aga Khan. He
tried the religious route, without success." By holding as he did, the Motions Judge failed to
appreciate the arguments made by the defendants that none of the official pronouncements
made by the Imam, including the Ismaili Constitution, Farmans or Talikas, indicate that the
activities complained of are not desired by Him, and the only evidence that purports to be from
the Aga Khan concerning these activities is forged. The defendants were not seeking to dictate
to the Aga Khan, but are pointing to evidence that establishes that the Aga Khan's official
pronouncements as set out in the Ismaili Constitution and all of his public Farmans support the
defendants' activities, and that instead of prohibiting such activity, He actually encouraged
them. The defendants' evidence is that they have abided by what was expected of them, that
in abiding with their Constitution and Farmans (which provides implied consent, authorization
based on relationship, etc.) they are not in breach of their Constitution or any Farmans.
70. According to the Federal Court of Appeal in the MacNeil Estate, parties responding to a
motion for summary judgment do not have the burden of proving all of the facts in their case;
rather, they have only an evidentiary burden to put forward evidence showing that there is a
genuine issue for trial.
Adequacy of Record (Adverse Inference)
71. The motions judge drew an adverse inference against the appellants for not filing transcripts
of the discoveries. However, in a motion for summary judgment, drawing an adverse inference
against a responding party is not available at law.
Appeal Book, Vol I, Tab 3, paras. 59-67
72. The motion records were filed, cross-examinations conducted, and the motions were essentially
ready for argument by the time the discoveries took place. Prothonotary Tabib directed on
November 2, 2010, with respect to the discovery, as follows:
“To the extent any party were to attempt to raise, at the hearing of the motion for
summary judgment, anything of what occurred at the attendance on discovery, they
would be precluded from doing so unless admissible evidence of those facts were put
before the court. The motions for summary judgement are now fully briefed. No
further evidence may be filed for use at the hearing of the motions without leave of the
court, to be sought by way of motion.”
73. Both parties had an option: either one could have brought a motion for filing further evidence.
Neither did that, and were content to and argued the motions on the briefs filed. Yet the
motions judge drew an adverse inference against the appellants for failing to file evidence. It
is trite law that adverse inference cannot be drawn if both parties have access to that evidence -
it is only available when that evidence is exclusively in one party’s control. Furthermore, the
motions judge inferred without any evidence on the issue of what the Aga Khan might have
said at the discoveries. Had the Aga Khan said what is speculated by the motions judge, then
respondents’ counsel, Mr. Gray, would have without doubt sought to file evidence of same.
74. Respecting this issue, the Federal Court of Appeal in MacNeil Estate held:
"Nowhere in the Rules is a responding party required to bring forward sufficient
evidence so that genuine issues for trial may be resolved on a motion for summary
judgment."
MacNeil Estate v. Canada (Department of Indian & Northern Affairs), Supra
Appellant’s Authorities, Tab 6, para. 37
75. In Apotex, it was alleged that Apotex had not put its "best foot" forward when it did not file
certain evidence in response to a motion for summary judgment, and the moving party sought
that an adverse inference should be drawn for Apotex’ failure to file that evidence which was
in its possession. Snider J. reviewed case law and held:
“In my view, Merck carries the obligation on Apotex in this motion too far. If Merck
is correct, any responding party on a motion for summary judgment would be required
to bring forward all the evidence necessary to allow the motions judge to resolve the
issues in dispute. In respect of Rule 216(1), this ignores the first step-that the judge be
satisfied that there is no genuine issue for trial. To my mind, the first obligation on a
responding party is to put its "best foot" forward in convincing the motions judge that
a genuine issue for trial exists. As discussed elsewhere in these reasons, that can be
done by identifying "gaps" in the evidence before the motions judge that can only be
addressed through evidence led at trial. [Emphasis added].
Apotex Inc. v. Merck & Co., supra, at Tab 17, paras. 27, 28
76. Furthermore, the Federal Court of Appeal in MacNeil said that, “I think that the Motions Judge
erred by simply rejecting the appellant's arguments without apparently considering whether
they raised a genuine issue for trial.” In the case at bar, the motions judge also erred by not
determining the issue of genuine issue.
MacNeil Estate, supra, at para 40; Appellants’ Brief of Authorities, Tab 6
77. The Nova Scotia Court of Appeal in the case Bank of Nova Scotia said the following with
respect to the obligation of a party responding to a motion for summary judgment:
“As I see it there is no explicit obligation either within the Rules or in case authorities
that requires the defendant to raise every arguable issue for trial in response to the
plaintiff's application for summary judgment or even most of the defendant's arguable
issues for trial. To fend off an application he merely needs to raise one,
notwithstanding some others may be known to him, or become apparent through the
course of the litigation.” [Emphasis added].
Bank of Nova Scotia v. A. MacKenzie's Auto Mart Inc., 2010 CarswellNS 654, 2010
NSCA 81, para 32; Appellants’ Brief of Authorities, Tab 18
78. The motions judge’s reasons indicate that he conducted a trial on affidavits by drawing an
adverse inference against the appellants. However, the legal requirement of putting the best
foot forward does not “entail turning a summary judgment motion into the trial itself by
requiring all the trial evidence. A motion for summary judgment must be judged on the basis
of the pleadings and materials actually before the judge...” The jurisprudence on Rule 216 is
clear that a motions judge should refrain from issuing summary judgment where the relevant
evidence is unavailable on the record and involves a serious question of fact which turns on
the drawing of inferences, and finished by saying that the trial judge would benefit from having
more evidence on the intentions of going into contractual relations.
AMR Technology Inc. v. Novopharm Ltd., 2008 CarswellNat 2986, 2008 FC 970,
70 C.P.R. (4th) 177, 169 A.C.W.S. (3d) 76, para 22, Tab 19
Society of Composers, Authors & Music Publishers of Canada v. Maple Leaf
Sports & Entertainment, 2010 CarswellNat 2101, FC 731, para 17 Tab 28
79. The appellants submit that Justice Harrington erred in drawing an adverse inference against
the appellants on the issue of the transcripts of discovery, on the grounds that a responding
party need not call all evidence to defend the motion for summary judgment. Furthermore,
it is trite law that it is not appropriate to draw an adverse inference where the witness in
question was available to both parties as in this case, the witness is the party who could have
given the necessary evidence. On the contrary, the motions judge ought to have drawn an
adverse inference against the respondent for not filing His personal affidavit as would be
expected in the circumstances in a Copyright case due to the fact that the evidence about lack
of consent can only be given by the Copyright holder.
80. The motions judge misapprehended evidence when he held that, "However, it is not up to the
defendants to dictate to the Aga Khan. He tried the religious route, without success. This is a
finding of fact on inadmissible hearsay evidence, and evidence that is shown to be forged
(forged signatures). By holding as he did, the motions judge failed to appreciate the arguments
made by the appellants that none of the official pronouncements made by the Imam, including
the Ismaili Constitution, Farmans or Talikas, indicate that the activities complained of are not
desired by Him, and that these materially support the appellants’ evidence instead of defeating
their evidence.
Appeal Book, Vol 1, Tab 3, para. 22
81. The Motions Judge misapprehended evidence when he held at para. 12, "..in their devotion to
him all he has to do is say the word and they will cease and desist. However they have placed
so many conditions on this word that this lawsuit was taken in frustration." The only condition
placed by the Appellants is that the communication from the Aga Khan be authentic, and there
is nothing else on evidence on this point. Justice Harrington has speculated on this matter
without any evidence to support his findings.
Appeal Book, Vol 1, Tab 3, para. 12
Detrimental Reliance/Latches
82. Evidence has established that Tajdin has been publishing Farman books (as other individuals
also do across the world) and published ten books as from 1992 to 2009, and that distribution
of same was undertaken publically to the knowledge of the Aga Khan and His institutional
leaders. Alibhay’s evidence, which was not contradicted, was that the Aga Khan knew of the
publication in 1992, when He encouraged the ‘work”, and Sachedina confirmed that the Aga
Khan knew of the publications at least as of mid-nineties of the various publications by Tajdin.
Appeal Book, Vol 1, Tab 11, p. 132, para. 22
83. Accordingly, the legal concept of Latches and the law of Detrimental Reliance is relied upon
by the appellants. Although the appellants’ presented case law for consideration, the motions
judge essentially ignored this line of defence and granted judgment against the appellants. The
appellants submit that it is unjust to grant judgment against them without consideration of all
of their defences and evidence filed by them based on Garford: [summary judgment] should
not be granted where, on the whole of the evidence, the judge cannot find the necessary facts
or it would be unjust to do so.
84. The Court in Paul v. Vancouver International Airport Authority, stated as follows: (i) Estoppel
by Representation operates over a wide field of common law and equity. The basic principle
is that a person who makes an unambiguous representation, by words, or conduct, or by
silence, of an existing fact, and causes another party to act to his detriment in reliance on the
representation will not be permitted subsequently to act inconsistently with that representation.
Paul v. Vancouver International Airport Authority, 2000 CarswellBC 561, 2000
BCSC 341, 5 B.L.R. (3d) 135, at para. 74, Tab 20
85. The Ontario Superior Court states as follows about latches and acquiescence:
“In determining whether there has been such delay as to amount to laches the chief points to
be considered are (1) acquiescence on the plaintiff's part, and (2) any change of position that
has occurred on the defendant's part. Acquiescence in this sense does not mean standing by
while the violation of a right is in progress, but assent after the violation has been completed
and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where he has
by his conduct done that which might fairly be regarded as equivalent to a waiver of it; or
where by his conduct and neglect he has, though not waiving the remedy, put the other party
in a position in which it would not be reasonable to place him if the remedy were afterwards
to be asserted. In such cases lapse of time and delay are most material. Upon these conditions
rests the doctrine of laches: Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221 at 239, per
Lord Selborne.”
Egnatios v. Leon Estate, 1990 CarswellOnt 502, paras. 63, 68, 70
Appellants’ Brief of Authorities, Tab 21
86. The appellants state that as from 1992 the Aga Khan knew of the publications, and encouraged
it, His institutional leaders also knew of the publications and the appellants have changed their
position by publishing books at enormous expenses and it is unjust to suddenly hold the
appellants liable for infringement.
Appeal Book, Vol 1, Tab 11, p. 132, paras. 11, 22, 36
87. The Statement of Claim identifies the Golden Edition as the infringing material and sought an
injunction restraining the distribution of the Golden Edition. The Injunction granted by the
motions judge is much broader: “.. restraining the defendants... from infringing the plaintiff’s
copyright in the literary works…” which has been defined as Farmans and Talikas. The
previous editions published by Tajdin cannot be restrained by an injunction due to the
Limitations period (of three years) set out in the Copyright Act. The only evidence against this
point is the evidence of Sachedina who said that Tajdin ceased (denied by Tajdin and Jiwa)
distributing the books in 1998 and he just discovered after the publication of the Golden
Edition. Appeal Book, Vol 1, Tab 5, p. 55, paras. 1(a)(i) and 3
88. However, his evidence is materially contracted by the appellants (documentary evidence has
been given to prove that distribution of the books were ongoing and not ceased after 1998), and
by Mohamed. Accordingly, the evidence on this issue is contradictory and it is an error for the
motions judge’s judgment applying to the previous publications without considering the
Limitations period pleaded by the appellants. The motions judge’s judgment ought to be
reversed on this ground as well.
Appeal Book, Vol I, Tab 11, p.135, paras. 19-23; Tab 16, 3-5
89. The Manitoba Court of Appeal held in the case of Shell v. Barnsley, where the issue was
whether the plaintiff could found his claim in contract and negligence as well as on negligent-
misrepresentation. The Court states that “Matters of law which have not been fully settled in
our jurisprudence should not be disposed of at this [interlocutory] stage of the proceedings”,
and then continued, “My view is strengthened by the fact that motion was premised on
assumptions concerning the pleadings and the facts. ... My conclusion ... highlight the
importance for counsel, and the judge, to address the appropriateness of proceeding by way of
summary judgment where issues concern the developing areas of law.”
Shell v. Barnsley, 2006 CarswellMan 394, 2006 MBCA 133, paras. 16, 17, 18
Appellants’ Brief of Authorities, Tab 25
90. On the issues of credibility the only thing the motions judge said is: “Although there are
credibility issues in the motions as pleaded before me, they are not, in my opinion germane.”
With respect, it is trite law that justice must not only be done, but be seen to be done and it is
a dereliction of duty for a judge to casually dismiss the credibility issues raised without
explaining at all why certain witnesses’ evidence was found to lack credibility or why he
dismissed entirely the appellants’ expert’s unchallenged finding, or why he discarded evidence
of Mohamed when he was not even cross-examined. The resolving of the credibility issue,
even cursorily, evidences that serious credibility issues were raised but not adequately
addressed by the motions judge.
91. It is submitted that Justice Harrington erred as follows: (a) in not ruling the impugned evidence
as inadmissible; (b) in relying on the inadmissible hearsay evidence to ground his decision
on; (c) in casually dismissing the credibility contest between the evidence of Sachedina and
Bhaloo and Tajdin and Mohamed (who was not cross-examined and has served the Imam and
his institutions for three decades in various capacity, and currently he, an engineer, and his
wife, a physician, are serving the Imam in senior positions in voluntary capacity, without any
pay or remuneration, for several years at the Aga Khan Hospital in Kenya as their gift to the
Imam for his Golden Jubilee); (d) in finding that the expert’s evidence was contradictory; (e)
in accepting the evidence of one expert and entirely rejecting the other evidence; (f) in
dismissing the Latches argument on inadmissible evidence and contested evidence; (g) in
misapprehending the importance and interpretation of the Ismaili Constitution; (h) in not
dealing with the issue of Detrimental Reliance.
Costs
92. The Notice of Motion sought that costs of $30,000.00 be made payable to the Aga Khan
Development Network, or such other charitable institution as may be designated. Tajdin and
his family are major donors to the AKDN and other community institutions. Based on the
Notice of Motion, the appellants’ consented without making any submissions against the costs
award, but then at the time of settling the Order, the motions judge went beyond what was
asked for in the Motion and made an Order that costs be payable to the respondent personally,
without jurisdiction in doing so.
Appeal Book, Vol I, Tab 2, para. 9; Vol II, Tab 24, p. 372, para. 1(f)
PART V - ORDER SOUGHT
93. The appellants respectfully request that the appeal be allowed and the Judgment of Justice
Harrington dated March 4, 2011, be set aside.
Date: June 13, 2011 Respectfully submitted,
____________ ______________
Alnaz I. Jiwa Nagib Tajdin
.....