Botched cross examination key issue in Aga Khan’s copyright lawsuit
NEW: AGA KHAN SCORES A MAJOR VICTORY OVER A REBEL GROUP. JUSTICE HARRINGTON THROWS OUT ARGUMENTS PUT FORWARD BY ALNAZ JIWA AND NAGIB TAJDIN. READ IT HERE
TORONTO – Federal Court of Canada Justice Sean J. Harrington made some piercing probes into the statements of two defendants in a copyright lawsuit filed by the Aga Khan, spiritual leader of the world’s 15 million Ismaili community.
The two-day hearing was punctuated with quiet laughter as Justice Harrington asked searching questions during statements by self-represented defendants Alnaz Jiwa and Nagib Tajdin who were sued by the Aga Khan for publishing and selling an unauthorized book containing messages of the Aga Khan to his community.
The Aga Khan is seeking punitive and exemplary damages from the two who claim they obtained divine permission to publish the books.
The court-room was filled with Ismaili supporters of the Aga Khan. Also present at the hearing were Mohamed Manji, president of the Ismaili Council for Canada and top Ontario Ismaili leader Karim Sunderji along with a lawyer from the Aga Khan’s Paris headquarters who was here to monitor the proceedings and was introduced to the court.
Justice Harrington was hearing pleas during a two-day session for summary judgment filed by both sides.
The Aga Khan was represented by his Toronto lawyer Brian Gray who was assisted by Allyson Whyte Nowak of the Ogilvy Renault law firm.
Gray spoke for approximately 90 minutes and summarized the efforts made by the Aga Khan to stop the defendants from copying his works.
Among the points made by Gray were the following:
* He recounted meetings between the Aga Khan’s emissary Dr. Shafik Sachedina, along with two letters written by the Aga Khan to the defendants as well as correspondence from the Aga Khan’s brother to defendant Tajdin.
* Gray recounted the fact that the Aga Khan’s efforts to stop the infringement were greeted with allegations by the defendants that the Ismaili leader’s signature had been forged as well as allegations made against the Aga Khan’s secretary that she had participated in a conspiracy with a usurper.
* The defendants rejection of the letters as forgeries prompted the Aga Khan to sign an affirmation stating that he was the plaintiff in the action against Jiwa and Tajdin. The affidavit was signed by the Aga Khan in front of a notary public and a top American lawyer.
* Gray stated that despite having obtained a court order to compel the Aga Khan to appear for a sworn cross examination, Tajdin failed to ask questions and also failed to submit into the court records the transcript of the cross examination.
When Jiwa got up to speak, Justice Harrington said that while he did not know much about the Ismaili faith, he would know as a Catholic that he’d have no authority to seek to speak to the Pope if he received instructions from the head of the Catholic Church in Canada.
“Who am I to demand that I will accept such instruction only if it comes directly from the Pope?,” asked Justice Harrington who graduated with a law degree from McGill University in 1968.
Mr. Justice Harrington received a Bachelor of Laws from McGill University in 1968. He was admitted to the Barreau du Québec in 1969, and to the Law Society of Upper Canada in 1978.
At the time of his appointment, he was a partner with Borden Ladner Gervais, formerly known as McMaster Meighen, in Montréal. He practised mainly in maritime law, but also did work in insurance law and alternate dispute resolutions.
Mr. Justice Harrington was President of the Canadian Maritime Law Association, as well as Vice-president and Director of the Association of Maritime Arbitrators of Canada. He has also been Treasurer of the Barreau de Montréal and Chair of the Association of Average Adjusters of Canada.
Jiwa relied on his claim that the defendants had consent to publish the book and sell it because of a religious event during 1992.
The two defendants say that they got permission by placing the book on top of a plate of food offerings presented to the Aga Khan during a ceremony known as mehmani. The ceremony is a symbolic presentation of offerings to the Ismaili Imam.
The offering was presented by a third party and the Aga Khan placed his hand on the plate of offerings and blessed the presenter.
While there was no conversation about the publication of any book, the two claim that the fact the Aga Khan put his hand on top of the book, meant that they had obtained permission to print and sell the Aga Khan’s works.
The judge at one time during Jiwa’s submission responded that to conclude that the Imam by placing his hand on the book had given a clear consent to publish his Farmans was “far fetched”.
Among several points made by Justice Harrington was the question of the botched cross examination of the Aga Khan during which Tajdin said he was confused and did not know what to say. However, the record of the conversation is not part of the evidence because Tajdin has declined to file it.
Justice Harrington stated that during the discovery process, the defendants could have asked questions to resolve their outstanding issues such as whether the Aga Khan was the plaintiff, whether he had signed the Boston Affidavit and whether he had signed the letters that had been questioned as forgeries by the pair of defendants.
He explained several times to Jiwa that the purpose of discovery was to get admissions that could be used in court, but they failed to ask those questions and he couldn’t comprehend why.
Justice Harrington also asked Jiwa if he was sure that it was the Aga Khan who had attended the Oct. 15 discovery and Jiwa answered in the affirmative.
Tajdin spent much of his time discussing the question of obedience to the spiritual leader and argued the book was presented as a gift to the spiritual leader by a friend of his during the religious ceremony in 1992.
The judge asked Tajdin the same question he had asked Jiwa – about the absence of a transcript of the discovery in court evidence.
Tajdin responded that he did not file the transcript because most of the discussion occurred off the record.
He also told the Judge that his farman book projects had cost him a lot and he had even borrowed against his life insurance policy to fund the project. The judge remarked the cost of production was not relevant to the issue of copyright.
Justice Harrington reserved judgment in the case.
– The court hearing was covered by a citizen reporter and was edited by Salim Jiwa.