Date: 20011214
Docket: A-251-00
Neutral citation: 2001 FCA 395
CORAM: ROTHSTEIN J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI,
GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM
CITY ENTERPRISES LTD.
Appellants
and
NINTENDO OF AMERICA INC.
and NINTENDO OF CANADA LTD.
Respondents
and
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI,
GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM
CITY ENTERPRISES LTD.
Appellants
and
THE WALT DISNEY COMPANY AND OTHERS
Respondents
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD.
Appellants
and
TIME WARNER ENTERTAINMENT COMPANY, L.P.
Respondent
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD.
Appellants
and
VIACOM HA; HOLDING COMPANY AND OTHERS
Respondents
Heard at Vancouver, British Columbia, on December 13, 2001.
Judgment delivered at Vancouver, British Columbia, on December14, 2001.
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: ROTHSTEIN J.A.
NOËL J.A.
Date: 20011214
Docket: A-251-00
Neutral citation: 2001 FCA 395
CORAM: ROTHSTEIN J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI,
GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM
CITY ENTERPRISES LTD.
Appellants
and
NINTENDO OF AMERICA INC.
and NINTENDO OF CANADA LTD.
Respondents
and
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI,
GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM
CITY ENTERPRISES LTD.
Appellants
and
THE WALT DISNEY COMPANY AND OTHERS
Respondents
and
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD.
Appellants
and
TIME WARNER ENTERTAINMENT COMPANY, L.P.
Respondent
and
BETWEEN:
ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD.,
TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD.
Appellants
and
VIACOM HA! HOLDING COMPANY AND OTHERS
Respondents
REASONS FOR JUDGMENT
(Delivered from the Bench at Vancouver,
Thursday, December 13, 2001)
MALONE J.A.
[1] We are satisfied that the Motions Judge gave sufficient weight to all the relevant circumstances when on April 14, 2000 she upheld the grant and execution of the four Anton Piller orders now under review.
[2] The decision of the Motions Judge was based on her credibility findings and her factual conclusions based on a detailed review of the filed affidavits and cross-examination thereon. While the appellants have suggested that there are certain factual errors in her interpretation of the evidence, we are unable to say that the Motions Judge's conclusions are clearly wrong so as to justify interference by this Court (Stein v. Kathy "K" (1976) 2 S.C.R. 802 at page 806 (S.C.C.)).
[3] The Motions Judge's legal analysis followed the test for the issuance of Anton Piller orders as established by Richard A.C.J. (as he then was) in Adobe Systems Inc. v. KLJ Computer Solutions Inc. [1999] 3 F.C. 621. We have been unable to discern any error in the application of the legal principles therein to the facts of this case as determined by the Motions Judge.
[4] We would dismiss the appeal with lump sum party and party costs of $15,000.00 plus disbursements of $3,000.00 payable forthwith. The respondents are to apportion the costs and disbursements among themselves in accordance with their oral representations in open court.
(Sgd.) "B. Malone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-251-00
STYLE OF CAUSE: Alnashir Tejani et al. v. Nintendo of America and others
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: December 13, 2001
REASONS FOR JUDGMENT : MALONE J.A.
CONCURRED IN BY: ROTHSTEIN, NOËL JJ.A.
DATED: December 14, 2001
APPEARANCES:
Alnashir Tejani and Ghanwa Elmerhebi ON THEIR OWN BEHALF
Keith Bowman FOR THE APPELLANT
(Bathroom City Enterprises Ltd.)
Georgina Starkman FOR THE RESPONDENT
(Walt Disney & Viacom Ha!)
Lou Brzezinski FOR THE RESPONDENT
(Nintendo)
David Wotherspoon FOR THE RESPONDENT
(Time Warner)
SOLICITORS OF RECORD:
Keith Bowman FOR THE APPELLANT
Vancouver BC (Bathroom City Enterprises)
Kestenberg Siegal Lipkus FOR THE RESPONDENT
Toronto ON Walt Disney & Viacom Ha!
Blaney McMurty FOR THE RESPONDENT
Toronto ON Nintendo
Fasken Martineau DuMoulin FOR THE RESPONDENT
Vancouver BC Time Warner
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