Date: 20010322
Docket: T-1009-00
Neutral Citation: 2001 FCT 224
BETWEEN:
NINTENDO OF AMERICA INC. and
NINTENDO OF CANADA LTD.
Plaintiffs
-and-
JANE DOE and JOHN DOE and OTHER PERSONS,
NAMES UNKNOWN, WHO OFFER FOR SALE,
SELL, IMPORT, MANUFACTURE, DISTRIBUTE
ADVERTISE, OR DEAL IN UNAUTHORIZED OR
COUNTERFEIT POKÉMON MERCHANDISE,
AND THOSE PERSONS LISTED IN SCHEDULE "A"
TO THE STATEMENT OF CLAIM
Defendants
REASONS FOR ORDER AND ORDER
BLAIS J.:
[1] This is a motion for a show cause ordering the following persons: Noureddine Bousserhane, Souad Omari, Le Monde des Montres/Watchworld, and Me Joseph El Fassy to appear before the Federal Court of Canada to hear proof of the acts with which they are charged and if found in contempt of Court for the subject defendants and Me Joseph El Fassy to be fined the amount of $5,000.00 and ordered to pay to the plaintiffs, his solicitor and client costs incurred as a result of the wrongful conduct of the subject defendants and Me Joseph El Fassy, together with other relief which this Honourable Court deems just and equitable.
[2] The plaintiffs submitted a record including the affidavit of Me Daniel Ovadia, solicitor's report comments and exhibits, as well as the order of Mr. Justice Gibson dated June 5, 2000.
[3] The defendants motion record included an affidavit of Me Joseph El Fassy and a constat prepared by Martin Boissé, Court bailiff.
[4] Counsel for the plaintiffs advised the Court that after receiving the affidavit signed by Me Joseph El Fassy, he decided to take no position and let the Court decide on the two records before it. He submitted to the Court submissions on costs and asked that the plaintiffs be entitled to costs on the solicitor-client basis based on the fact that they were before the Court for the third time and particularly on the fact that Me Joseph El Fassy decided to refuse to talk to Me Ovadia after a first conversation between Me Joseph El Fassy and his client, Mrs. Souad Omari.
[5] The defendants submitted an affidavit signed by Me Joseph El Fassy saying that he was reached by Mrs. Omari on February 1, 2001, and that through that conversation with Mrs. Omari he suggested to her to try to convince the representative of the plaintiffs and the two police officers of the RCMP not to proceed with the seizure and let them take pictures of the watches they wanted to seize.
[6] Me Joseph El Fassy was aware of the affidavit of Me Ovadia and the other documents and he clearly mentioned that he never received the letter sent to him by fax on February 1, 2001, by Me Lipkus. He was also aware of the events that occurred on February 1, 2001, which were described in Me Daniel Ovadia's solicitor's report comments, particularly at paragraphs 17, 18, 20, 21, 22 and 26.
[7] Nevertheless, Me Joseph El Fassy decided not to address this particular point.
[8] My understanding of the events is that Me Ovadia was informed by Mrs. Souad Omari that Me Joseph El Fassy had told her to disregard the order being served and that she should refuse to surrender the counterfeit watches (cf. solicitor's report comments, paragraph 20 of the plaintiffs' motion record, p. 16).
[9] Me Ovadia's reaction was to ask Mrs. Souad Omari to immediately call back Me Joseph El Fassy in order to be absolutely sure that there was no misunderstanding as to the recommendation he had made to his client, i.e. to refuse to respect the order of this Honourable Court (cf. solicitor's report comments, paragraph 21).
[10] After that, Mrs. Souad Omari called Me Joseph El Fassy and spoke to him. She informed Me Joseph El Fassy that Me Ovadia wished to speak to him, and Me Ovadia reports:
I then saw Souad Omari end the conversation and she informed me that Me El Fassy had refused to speak to me.
(cf. solicitor's report comments, paragraph 22.)
[11] Obviously, that refusal to speak to Me Ovadia is an important element of the misunderstanding and the fact that Me Joseph El Fassy decided not to address this particular point in his affidavit signed on February 22, 2001 led me to conclude that the situation could have been resolved in a better way if that conversation had occurred.
[12] On the other hand, the affidavit of Me Joseph El Fassy gives some details from his own point of view about what occurred that day.
[13] Given that the plaintiffs made a decision not to take a position on this motion, I conclude that I am not convince that it is necessary to issue a show cause order ordering Me Joseph El Fassy to appear before the Federal Court of Canada and the motion is therefore dismissed.
[14] Relating to the other defendants Mr. Noureddine Bousserhane and Mrs. Souad Omari, I am informed that Mrs. Souad Omari is out of the country since February 8, 2001 and will not be back until March 22, 2001. I will therefore adjourn the hearing of this motion for a show cause order, relating to the defendants Mr. Noureddine Bousserhane and Mrs. Souad Omari, until April 9, 2001, in Montreal.
[15] The plaintiffs decided to make representations relating to costs. I have received representations by both parties and I have no hesitation to conclude that Me Joseph El Fassy has a responsibility in what happened on February 1, 2001.
[16] Even if Me Joseph El Fassy appeared to be quite busy that day, as mentioned in his affidavit, a counsel should be even more cautious when he is on the phone with his clients, particularly when those clients are facing a seizure involving police officers.
[17] The decision of Me Joseph El Fassy not to talk to Me Ovadia when he had the opportunity to do so, in order to clarify the misunderstanding about his recommendation to his client, was a mistake.
[18] Therefore, the Court orders that the plaintiffs should be entitled to costs established at $400.00.
Pierre Blais
Judge
OTTAWA, ONTARIO
March 22, 2001
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