Date: 20110519
Dockets: A-59-11
A-60-11
Citation: 2011 FCA 172
Present: MAINVILLE
J.A.
BETWEEN:
NAGIB TAJDIN and ALNAZ JIWA
Appellants
and
HIS HIGHNESS PRINCE KARIM AGA
KHAN
Respondent
REASONS FOR ORDER
MAINVILLE J.A.
[1]
The
appellant Nagib Tajdin has brought a motion seeking an order staying, pending
the outcome of these consolidated appeals, paragraphs 4 to 9 of the judgment of
Harrington J. in Federal Court docket T-514-10 dated March 4, 2011 (the
“Judgment”) (the reasons for which are dated January 7, 2011 and cited as 2011
FC 14), as well as an order expediting the hearing of the appeals.
Background
[2]
The respondent
is the spiritual leader of the Shia Imami Ismaili Muslims, of which there are
approximately 15 million worldwide located in over 25 countries. The respondent
commenced an action in Federal Court alleging that the appellants had infringed
his copyright in his Farmans and Talikas contained in a book entitled “Farmans
1957-2009 – Golden Edition Kalam-E Iman-e-Zaman” (the “Golden Edition”) and in
MP3 sound recordings (the “MP3”) produced, published, distributed and sold by
the appellants. A Farman is an address given before an audience, and a Talika
is a brief written religious message.
[3]
The Judgment
under appeal granted the respondent’s motion for summary judgment and ordered
and adjudged in its paragraphs 1 to 3 that copyright subsisted in the Farmans
and Talikas authored by the respondent and reproduced in the Golden Edition and
in the MP3, and that the respondent was the owner of such copyright. The
Judgment also declared that the appellants infringed this copyright (para. 4),
granted a permanent injunction prohibiting the appellants from inter alia,
producing, publishing, selling, giving away, promoting, making available or
distributing any work that infringes the respondent’s copyright in the Golden
Edition and accompanying MP3 (para. 5), and ordered the appellants to deliver
up all copies thereof (para. 6).
[4]
The
Judgment also ordered a reference for the determination of damages or profits
owing to the respondent (para. 7), pre-judgment and post-judgment interest on
any amount awarded in the reference (para. 8) and the payment forthwith of the costs
of the proceedings fixed at $30,000 (para. 9).
[5]
The appellants
have appealed the Judgement to this Court on various grounds. The appellant
Tajdin now seeks a stay of paragraphs 4 to 9 of the Judgment and raises numerous
arguments for this purpose. However, distilled to their essence, the appellant
Tajdin’s arguments in support of the stay may be summarized as follows:
a. a stay of paragraphs 4 to 7 of
the Judgment is justified since all remaining copies of the Golden Edition and
the accompanying MP3 have been delivered up, and the appellants have already
undertaken not to publish any additional copies until the appeals have been
decided. In addition, delivering the original contents of the Golden Edition
and of the accompanying MP3 would deprive the appellant Tajdin of essential
documents to practice his faith, as well as deprive him of evidence for the
trial should the appeals be successful or should he initiate new proceedings
against third parties.
b. a stay of paragraphs 7 and 8
is required since the reference for the determination of damages or profits pending
the disposition of the appeal would create a burden on appellant Tajdin who
currently resides in Kenya and who would thus be
required to travel to Canada to prepare for this reference.
There is also a preoccupation that the reference proceedings will be used by
appellant Tajdin’s opponents as a means of harassing him.
c. finally, the costs order in
paragraph 9 of the Judgment should be stayed since appellant Tajdin alleges
that the opposing attorneys had submitted that these costs were to be paid to
the benefit of a charity, and not to the respondent personally as ordered in
the Judgment. Nevertheless, appellant Tajdin is prepared to pay the amount into
court pending the outcome of the appeals.
Analysis
[6]
The issue
to be determined on this motion is whether the appellant Tajdin has satisfied
the test for the granting of a stay as established by the Supreme Court of
Canada in Manitoba (Attorney General) v. Metropolitan Stores, [1987] 1
S.C.R. 110 and in RJR-MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311. First, a
preliminary assessment must be made of the merits of the appeals to ensure that
there is a serious question to be determined. This is a low threshold, since the
Court must be satisfied that the issues raised are neither vexatious nor
frivolous. Second, it must be determined if the party bringing the motion for a
stay would suffer irreparable harm if the stay were refused. Finally, an
assessment must be made as to which of the parties would suffer greater harm
from the granting or refusing of the stay pending a decision on the merits of
the appeals. The elements of the test are conjunctive, in that the party
seeking the stay must succeed on all three elements.
[7]
For the
purposes of determining this motion, it is only necessary to consider the
second element of the test, namely whether the appellant Tajdin will suffer
irreparable harm should the stay be refused. I will consequently consider the
issue of irreparable harm in regard to each of the impugned paragraphs of the
Judgment.
[8]
Since appellant
Tajdin states that he is committed not to publish any additional copies of the
copyright material until these appeals are decided, there is consequently no
evidence of any irreparable harm in the event paragraphs 4 and 5 of the
Judgment are not stayed.
[9]
Appellant
Tajdin’s real objection is rather to paragraph 6 of the Judgment which requires
him to “deliver up all copies of the Golden Edition and the Farmans and Talikas
contained therein, and MP3 audio bookmark in [his] possession, care or control,
and all other wares, labels, packages, signage, advertising materials, plates
or moulds or other materials or things in [his] power, custody or possession,
which refer to all or any part of, or which are used to produce, the Golden
Edition and the Farmans, Talikas and MP3 audio bookmark contained therein …”
Though appellant Tajdin has delivered up all copies of the Golden Edition and
the accompanying MP3, he objects to delivering up the original materials used
to produce the Golden Edition and the accompanying MP3 arguing that this would
impede the practice of his faith, as well as deprive him of evidence for trial
should his appeal be successful or should he initiate new proceedings against
his opponents in his religious community.
[10]
I agree
with the respondent that the Judgment, including its paragraph 6, does not
impede appellant Tajdin from practicing his faith, since he will continue to
have access to the Farmans and Talikas in the same manner and by the same
authorized means as all other members of the Ismaili faith. The Judgment seeks
to preclude the publication and distribution of unauthorized Farmans and
Talikas and does not impede in any manner the distribution of such materials by
other means authorized by the respondent acting as the spiritual leader of the
Ismaili faith.
[11]
As for
depriving the appellant Tajdin of evidence for trial or in new proceedings, it
is useful to note that both parties have stated that the heart of the dispute
is a fundamental disagreement between the appellants and the Ismaili leadership
(including the head of Jamati Institutions, Shafik Sachadina) over the
collection, editing and distribution of Farmans: respondent’s written
representations at para. 5; moving party’s reply written representations at
para. 1. Appellant Tajdin fears that should he deliver up the original
materials used to produce the Golden Edition and the accompanying MP3 before the
appeals have been decided, these materials could be destroyed or otherwise
tampered with, thus impeding his defence in an eventual trial or in new legal
proceedings. The respondent has however undertaken to ensure the preservation
and safe-keeping of any such documents or materials delivered up or produced by
either of the appellants: respondent’s written representations at para. 48. In light
of this undertaking, which shall be included in the order issued with these
reasons, no irreparable harm will be suffered by appellant Tajdin pending the
outcome of these appeals even if paragraph 6 of the Judgment is not stayed.
[12]
Nor will
appellant Tajdin suffer irreparable harm because the reference ordered pursuant
to paragraphs 7 and 8 of the Judgment will continue during the appeal process.
The appellant Tajdin’s fear that these reference proceedings will be used by
his opponents as a means of harassing him are ill founded, since the judge or
other person designated by the Chief Justice of the Federal Court who will conduct
the reference can take the appropriate measures to ensure that there is no such
abuse of the proceedings. As for the costs and inconvenience resulting from
appellant Tajdin’s travel from his residence in Kenya, I note that this appellant
has been residing in Kenya since 2005 and has nevertheless
been able to vigorously defend the action taken against him by the respondent,
including this appeal. The appellant has also travelled extensively to various
locations, including Tajikistan, Afghanistan, India, the United Kingdom,
France, Pakistan, the USA, Syria, Uganda, Tanzania, Madagascar, and the Ivory
Coast, in order to gather Farmans and publish the Golden Edition. In these
circumstances, I fail to see what irreparable harm would befall the appellant Tajdin
by the mere fact that he will be required to travel for the purposes of the
reference.
[13]
I also
note that section 156 of the Federal Courts Rules, SOR/98-106 provides
that a reference is normally to be conducted in “the simplest, least expensive
and most expeditious manner” and that the expense of a reference and the
inconvenience thereof are not alone normally sufficient to justify a stay since,
in the event of a successful appeal, these can be compensated through a
monetary award: Baxter Travenol Laboratories of Canada Ltd. v. Cutter
(Canada) Ltd., [1981] F.C.J. No. 1143 (Q.L.), 54 C.P.R. (2d) 218.
[14]
Concerning
the costs order in paragraph 9 of the Judgment, appellant Tajdin is ready to
pay this amount into court pending the outcome of the appeals, and the
respondent is willing to accept such an arrangement. A consequential order
shall follow.
[15]
Finally,
appellant Tajdin seeks an order to expedite the hearings of the consolidated
appeals, but he submits no specific reasons to justify his request. Nevertheless,
the respondent consents to such relief on the basis that Ismailis would benefit
from a speedy resolution of this legal proceeding. Though I appreciate the
respondent’s concerns, most litigants before this Court would also benefit from
a speedy resolution of their own legal proceedings.
[16]
In the absence
of any other cogent and convincing arguments to expedite these appeals, I fail
to see why the parties to these appeals should be given priority over other
litigants before this Court. I further note that insofar as the parties
dutifully follow the Federal Courts Rules governing these consolidated appeals,
and consequently serve and file within the specified time frames the appeal
book, their respective memorandum of fact and law and a requisition for
hearing, and insofar as the parties keep their agendas reasonably open for a
hearing date, these appeals could easily be heard and disposed of in a
reasonably short time.
[17]
No costs
have been sought on this motion by either of the parties, and consequently no
order as to costs shall be issued.
"Robert M.
Mainville"
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