Date: 20120116
Dockets: A-59-11
A-60-11
Citation: 2012 FCA 12
CORAM: NADON
J.A.
SHARLOW
J.A.
GAUTHIER
J.A.
BETWEEN:
NAGIB TAJDIN and ALNAZ JIWA
Appellant
and
HIS HIGHNESS PRINCE KARIM AGA
KHAN
Respondent
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
The appellants
Nagib Tajdin and Alnaz Jiwa ask this Court to reverse the judgment of the
Federal Court (2011 FC 14)
granting the
summary judgment motion of the respondent, His Highness Prince Karim Aga Khan
(the Aga Khan). The judgment declares that Mr. Tajdin and Mr. Jiwa infringed
the Aga Khan’s copyright in his literary works, particularly Farmans
and Talikas, and grants among other things a permanent injunction
precluding the publication of a book entitled Farmans 1957-2009 – Golden
Edition Kalam-E Iman-E-Zaman (Golden Edition) as well as
accompanying MP3 audio bookmarks (preloaded with fourteen audio extracts of
readings of Farmans by the Aga Khan).
[2]
Mr. Tajdin
and Mr. Jiwa also published copyrighted literary works of the Aga Khan at least
between 1992 and 1998. Such publications and any other actions relating to such
publications are not the subject of the infringement action filed by the Aga
Khan.
[3]
It is
worth noting that although these appeals challenge only the decision of the
judge with respect to the Aga Khan’s motion, the judge had to decide
cross-motions for summary judgment which were heard together. In fact, Mr.
Tajdin and Mr. Jiwa were the first to file such a motion on the basis that it
was clear that there was no genuine issue with respect to infringement given
that their actions were done with the consent of the copyright owner, the Aga
Khan. Mr. Tajdin and Mr. Jiwa described the issues raised in both motions as
identical except for the fact that in the Aga Khan’s motion the judge also had
to determine the admissibility of the “hearsay statements” in the affidavits
filed in support of the said motion.
[4]
Importantly,
Mr. Tajdin and Mr. Jiwa admit that the Golden Edition includes literary
works covered by copyrights owned by the Aga Khan.
[5]
It is in
that context that, in his reasons, the judge mentions that the only possible
genuine issue in the cross-motions for summary judgment before him was whether
the Aga Khan gave his consent or, in other words, whether Mr. Tajdin and Mr.
Jiwa performed the act admitted to without the consent of the owner of the
copyrighted literary work. This is not really disputed by the parties even if,
in their Notice of Appeal and their Memorandum, Mr. Tajdin and Mr. Jiwa state
that the judge should have given more attention to their defence of
laches/detrimental reliance.
[6]
In their
Memorandum, Mr. Tajdin and Mr. Jiwa raise 19 issues or errors which, in their
view, justify granting the appeals. Among other things they submit: i) that the
judge erred in law, by failing to properly apply the test to determine whether
there was a genuine issue for trial, proceeding as though he were the trial
judge, ii) that he admitted and relied on inadmissible hearsay evidence, iii)
that he erred in law by drawing inferences without the necessary facts or on
the basis of contested facts, iv) that he erred when he concluded that the Aga
Khan never consented to the publication of the Farmans, v) that he erred
in holding that the onus to prove consent was on Mr. Tajdin and Mr. Jiwa, vi)
that the judge had no jurisdiction to order costs ($30,000.00) to be payable to
the Aga Khan as opposed to the Aga Khan Development Network (AKDN), a
charitable foundation which was what was sought by the Aga Khan.
[7]
With
respect to some issues, the parties disagree as to the standard of review
applicable. For Mr. Tajdin and Mr. Jiwa, this Court should apply the
correctness standard to all the issues, including whether or not the judge was
correct to find that there was no genuine issue for trial. They rely, in that
respect, on the standard applied in Ontario (Canadian Imperial Bank of
Commerce v F-1 Holdings & Investments Inc (2007), 162 ACWS (3d) 554
(OSCJ Div Ct) and B(F) v G(S), 2001 CarswellOnt 1413, 199 DLR (4th) 554
(Ont SCJ) [see also Combined Air Mechanical Services Inc v Flesch, 2011
ONCA 764], rather than the palpable and overriding error standard
applied by the Federal Court of Appeal (ITV Technologies v WIC Television
Ltd, 2001 FCA 11, para 6; Quadco Equipment Inc v Timberjack Inc,
2003 FCA 93, para 4; Begg v Canada (Minister of Agriculture), 2005 FCA
362, para 13; and Eli Lilly and Co v Apotex Inc, 2005 FCA 361, paras 39
and 44).
[8]
In my
view, nothing in this case turns on the standard of review. My conclusion would
be the same on either standard.
[9]
In his
reasons, the judge correctly describes the test applicable on summary judgment
motions. He relies on seminal cases cited by both parties. He concludes at
paragraph 11 that he is satisfied that the tests have been met and that it is
in the interest of justice and judicial economy to dispose of this action by
way of summary judgment. He further notes that “although there are credibility
issues in the motions as pleaded before me, they are not, in my opinion,
germane.”
[10]
I agree
with both statements.
[11]
It is
evident from a simple reading of the decision that the judge made a number of
superfluous findings using language more appropriate to a trial judge. It is
also clear that many of these findings were prompted by the parties’ arguments.
It appears that he may have been trying too hard to put an end to this dispute
where the line between their religious debate and the copyright infringement is
far from clear, at least in Mr. Tajdin and Mr. Jiwa’s argument. This, however,
does not mean that his conclusion that the Plaintiff had met the test and that
there was no genuine issue for trial is incorrect.
[12]
Be that as
it may, it was not disputed at the hearing before this Court that the
determination of whether there was a genuine issue in this case turns on the
following:
a.
whether
the events that took place at the 1992 Mehmani ceremony are capable of
constituting consent, be it express or implied, to the publication of the Farmans
and Talikas included in the Golden Edition;
b.
whether
since the adoption of a new constitution in 1986, which did not include any
specific reference to the publication, reproduction or distribution of the Farmans
and Talikas, each member of the Jamat was implicitly authorized to
publish, reproduce, distribute or sell to other Ismaili the copyrighted literary
works included in the Golden Edition on the basis of their special
relationship with the Aga Khan.
[13]
Mr. Tajdin
and Mr. Jiwa allege that the Aga Khan’s signature on certain documents is
forged, and that improper use has been made of the Aga Khan’s brother’s e-mail.
These allegations relate to what can only be described as an alleged conspiracy
by persons in the Secretariat of the Aga Khan to stop Mr. Tajdin and Mr. Jiwa’s
activities out of spite and jealousy. The allegations need not be discussed or
considered to determine whether a genuine issue for trial exists, for if the
record does not disclose any fact capable of constituting consent, there is no
need to determine if the alleged consent was later revoked.
[14]
As noted
by Mr. Tajdin and Mr. Jiwa, the events that took place at the 1992 Mehmani
ceremony are not in dispute. The affidavit of Karim Alibhay described them in
sufficient detail to constitute a proper factual matrix enabling the
judge or this Court to determine whether or not these events are capable of
constituting consent within the meaning of section 27 of the Copyright Act,
RSC 1985, c C-42.
[15]
It is not
disputed that consent, in this statutory provision, can be either express or
implied. “Such a consent may be presumed from the circumstances. The inference
of consent must be clear before it will operate […] and must come from
the person holding the particular right alleged to be infringed” (H. G. Fox, The
Canadian Law of Copyright and Industrial Designs, 2d ed (Toronto: Carswell,
1967) at 339, cited with approval by Chief Justice McLachlin in Bishop v
Stevens, [1990] 2 S.C.R. 467 at paragraph 35).
[16]
As already
mentioned, Mr. Tajdin and Mr. Jiwa took the position before the judge that he
had all the necessary facts to determine this question and to draw, if
necessary, a clear inference of consent. They obviously cannot, now in appeal,
take a different position.
[17]
The
relevant facts may be summarized as follows:
(a)
The book
presented on a plate to the Aga Khan on top of the Alibhay family’s offering of
fruits and nuts at the 1992 Mehmani ceremony had just been printed by Mr.
Tajdin a few days before the said ceremony;
(b)
The title
on the cover of the book clearly refers to Farmans and Volume I,
however, there is no indication as to who printed it or who prepared this
compilation;
(c)
No notice
had been given to the Aga Khan, or any of the ceremony organizers, of Mr.
Tajdin and Mr. Jiwa’s intention to seek the Aga Khan’s consent to the
reproduction, distribution, and sale of the copyrighted literary work included
in this book;
(d)
There is
no evidence that the Aga Khan, or anybody else in the organization at the time,
knew or ought to have known that Mr. Alibhay was acting on behalf of Mr. Tajdin
and Mr. Jiwa;
(e)
There is
no evidence that the Aga Khan knew or ought to have known that this book was
not simply a compilation printed for the personal use of the Alibhay family, of
which three members were presented to the Aga Khan (explaining the use of the
word “we” – “nous” in French).
The brief verbal exchange that took place between Mr.
Alibhay and the Aga Khan, which is reproduced in its entirety at paragraph 39
of the judge’s reasons, is not, in my opinion, capable of constituting consent
within the meaning of section 27 of the Copyright Act.
[18]
The fact
that, in light of his undisclosed intentions and his knowledge of his “Farmans
project”, Mr. Tajdin may have had a genuine subjective belief that through this
exchange consent was given for the publication and sale of the copyrighted
works of the Aga Khan, past and future, so long as the sales and distribution
were made only to Ismailis, is not particularly relevant. The test to be
applied here is an objective one, and the focus is on whether the owner of the
copyright can be presumed to have consented to the otherwise infringing actions.
[19]
Turning
now to the second set of facts put forth by Mr. Tajdin and Mr. Jiwa, I have
considered all of the arguments with respect to the new constitution, the oath
sworn to the Aga Khan by the Jamat, as well as those relating to various
statements of the Aga Khan referred to in the material submitted by Mr. Tajdin
and Mr. Jiwa. That material indicates that:
(a)
the Aga
Khan expects his Jamat to read, discuss, and reflect on his Farmans and Talikas
which may sometimes be quite difficult to comprehend;
(b)
Knowledge
of the Ismaili history, particularly with respect to the practices, beliefs,
and ethics of the past, has been buried and is not sufficiently known;
(c)
The
availability and level of circulation of his teachings, and those of previous
Imams, may not be satisfactory, or at least optimal.
I cannot conclude that there is a genuine issue with respect
to consent.
[20]
Obviously,
the Aga Khan encourages his followers to reflect on the guidance he provides to
them. However, even taken together, the oath, the new constitution, and the
above mentioned statements are not capable of constituting consent within the
meaning of section 27 of the Copyright Act.
[21]
Things
might have been simpler if the solemn affirmation in the name of the Aga Khan
had been filed on its own instead of being filed as an exhibit to the
affidavits of two witnesses present when it was solemnly affirmed in Boston. However, here again, this is
not a fatal flaw as suggested by Mr. Tajdin and Mr. Jiwa, particularly given
the context in which this evidence was filed and the fact that Mr. Tajdin and
Mr. Jiwa are still doubting its genuineness, even after they actually met the
Aga Khan at the examination for discovery in Toronto. The Respondent explained
why an affidavit from the Aga Khan was not filed. Neither the judge nor this
Court is bound to make an adverse inference against the Aga Khan as urged by
Mr. Tajdin and Mr. Jiwa. I am satisfied that it was reasonably open to the
judge not to do so here.
[22]
Mr. Tajdin
and Mr. Jiwa take issue with how the judge dealt with the examination for
discovery. Again, this is a matter that is not central to the determination of
whether there is a genuine issue for trial. I am satisfied that having
concluded that there are no facts capable of constituting consent, one can only
infer that the publication by Mr. Tajdin and Mr. Jiwa of the Golden Edition
was done without the consent of the Aga Khan. To come to that conclusion, one
need not accept, or even refer to, the affidavits filed in support of the Aga
Khan’s motion which are said to contain only hearsay statements. In fact, in
the very particular circumstances of this case, the inference of the absence of
consent is the only possible conclusion. This is so whoever bears the ultimate
burden of proving the absence of consent.
[23]
The record
before this Court does not establish any defence based on laches, detrimental
reliance or acquiescence. The judge found that Mr. Tajdin and Mr. Jiwa, who do
not dispute that they had the burden of putting forth all the necessary facts
supporting such defences, did not establish that the Aga Khan had the
appropriate knowledge of their activities at the relevant time and the
evidence falls far short in respect of such defences.
[24]
It is not
disputed that the Aga Khan only became aware of the late 2009 publication of
the Golden Edition when Mr. Tajdin wrote to the Aga Khan on January 4,
2010. In fact, this was the first time that Mr. Tajdin and Mr. Jiwa directly
informed the Aga Khan of their “Farman project” which started in 1992,
even before the Mehmani ceremony took place, and their belief that the Aga Khan
had blessed the said project in 1992.
[25]
There is
no evidence that the Aga Khan knew that Mr. Tajdin and Mr. Jiwa continued to
distribute the books they published before 1998 after they claim to have agreed
to publish their next book in collaboration with Mr. Sachedina and the Ismaili
institutions in 1998. In his letter dated January 4, 2010, Mr. Tajdin expressly
confirms that no new books were published between 1998 and 2009.
[26]
Mr. Tajdin
and Mr. Jiwa did not allege that the Aga Khan, the acknowledged owner of the
copyrights in the Farmans included in the Golden Edition, knew
that they believed that they were authorized by him to pursue their activities
in 2009 because of the blessing he gave to the Alibhay family or because of the
wording of the new constitution and their special relationship with the Aga
Khan.
[27]
Moreover,
the parties did not discuss at all how the equitable doctrine of laches and
acquiescence could in law apply to the Aga Khan’s statutory rights under the Copyright
Act. It is certainly not clear to me how the doctrine of laches could apply
here in light of the three year statutory limitation provided for in the said
statute, especially considering that in their Statements of Defence, Mr. Tajdin
and Mr. Jiwa rely expressly on the said limitation. Nor is it clear how there
is any room for the application of the doctrine of acquiescence in the context
of section 27, where the legislator expressly deals with the issue of consent.
[28]
That said,
even assuming that these defences are available, I agree with the judge that
there is an insufficient factual basis to conclude to the existence of a
genuine issue here.
[29]
There is
little to say with respect to costs for the judge had doubts whether costs
could be paid to a non-party. It was within the judge’s discretion to grant
such costs to the Aga Khan, leaving it to him to dispose of such costs as he
sees fit. Mr. Tajdin and Mr. Jiwa have not shown any error in that respect.
[30]
I would
therefore dismiss the appeal with costs.
“Johanne Gauthier”
“I
agree
M.
Nadon J.A.”
“I
agree
K.
Sharlow J.A.”
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