2019 FC, 2019 FC 1389

Date: 20191115 Docket: T-1887-17 Citation: 2019 FC 1389 Ottawa, Ontario, November 15, 2019 PRESENT: The Honourable Mr. Justice Roy BETWEEN:LOUIS VUITTON MALLETIER S.A.; LOUIS VUITTON CANADA, INC.; CELINE; CHRISTIAN DIOR COUTURE, S.A.;GIVENCHY S.A.PlaintiffsandAUDREY WANG AKA NINI WANG AKA NI YANG; JOHN DOE AKA “MICHAEL”, CANADA ROYAL IMPORT & EXPORTCO.

LTD.; COLLECTIVELY DOING BUSINESS AS NI FASHION, NIYANGBAZZA AND NI BAZZA, AND LIAN TONGCOURIER SERVICEDefendants AMENDED JUDGMENT AND REASONS [1] The plaintiffs issued a statement of claim against the defendants on December 6, 2017, alleging a number of infringements of theTrade-marks Act, R.S.C., 1985, c T-13 [the Act] and the Copyright Act, R.S.C., 1985, c C-42. The matter before the Court concerns amotion seeking an order pursuant to rule 216 of the Federal Courts Rules, SOR/98-106, for a

summary trial on all of the issues raised inthe pleadings. [2] Such a

summary trial is conducted on the basis of the record assembled by the parties which must contain all of the evidence onwhich the parties rely. The applicants’ motion record runs for close to 4,200 pages while the defendants’ motion record consists ofupwards of 900 pages. [3] None of the numerous affiants for the applicants/plaintiffs was cross-examined on their affidavit, except one, and no order pursuantto rule 216(3) was sought. Accordingly, no viva voce evidence was heard. If there is sufficient evidence for adjudication, the Court maygrant judgment either generally or on an issue.

The Court was urged by the plaintiffs to adjudicate on all the issues, including damages,as they did not intend to offer different evidence if the Court were to direct "“a trial to determine the amount to which the moving party isentitled”" (rule 216(7)). [4] I will review the pleadings to ascertain what is at stake. I will then present the evidence before the Court, both from the perspectiveof the applicants/plaintiffs and the defendants. Once a better understanding of the evidence has been ascertained, I will consider morefully whether the motion for

summary trial is the appropriate vehicle to adjudicate on the matter before the Court. If so, I will then seekto adjudicate on the issues that are ripe for adjudication. However, before delving into the issues, it might be useful to address, as apreliminary issue, what, from a procedural standpoint, is before the Court because of amendments to the pleadings which were granted atthe hearing of this case. I. Preliminary Issue [5] There have been a number of proceedings in association with the original statement of claim.

The same day it was served on thedefendants (December 13, 2017), an Anton Piller Order, executed at the residence of Ms. Wang and Mr. Yang (the "“Wang residence”"or" “the residence”") and at the store located at the Parker Place Mall in Richmond, BC, was served. A number of items were seized atboth locations. The following day, on December 14, 2017, a Mareva injunction (to prevent dissipation of assets) was granted.Furthermore, a contempt hearing was held on December 19, 2017 (concerning an incident involving Ms.

Wang who refused to surrenderher mobile telephone in spite of a specific order to that effect in the Anton Piller Order, while the Anton Piller Order was executed at thestore). The Anton Piller Order and the Mareva injunction, which this Court refused to dismiss (2018 FC 1198), were continued until finaljudgment. [6] Statements of defence were eventually filed: July 20, 2018 for the defendants, Ms. Wang and Mr. Yang, and August 13, 2018, forCanada Royal Import & Export Co. Ltd. [7] The plaintiffs sought to amend their statement of claim shortly before the trial was to commence.

The Court issued on January 30,2019 an oral order for the purpose of granting the amendment.

As is well known, the Court enjoys a significant measure of discretion as"“the general rule is that an amendment should be allowed at any stage of an action for the purpose of determining the real questions incontroversy between the parties, provided, notably, that the allowance would not result in an injustice to the other party not capable ofbeing compensated by an award of costs and that it would serve the interests of justice”" (Canderel Ltd. v Canada, (FCA), [1994] 1 FC 3, at p. 10). [8] The defendants did not object to the amendments.

The proposed amendments did not go to the heart of the case: the defendants arealleged to have sold counterfeit merchandise (Louis Vuitton Trade-marks, Celine Trade-marks, Dior Trade-marks, Givenchy Trade-marks) and to have used some Louis Vuitton Copyrighted Works. The amended statement of claim names the second defendant,Mr. Yang, whose identity was not known at the time the original statement of claim was served and filed. It also adds three trade-marks,two now found at

schedule B to this judgment (Celine Trade-marks) and one now found at

schedule D to this judgment (Givenchy

Trade-marks). The additional trade-marks are those underlined in schedules B and D. [ 9 ] Thus, these amendments were incorporated in the Amended Statement of Claim served and filed on January 31, 2019. The Court proceeded on that basis. II. The allegations [ 10 ] It is not disputed that the plaintiffs own the trade-marks as presented in schedules A, B, C and D to this judgment, and the validity of the trade-marks is not litigated in this case. [ 11 ] The applicants/plaintiffs each assert that their trade-marks have established a well-known reputation and goodwill in Canada.

Each contends that the defendants have imported, offered for sale and sold counterfeit merchandise which bear their trade-marks, or some of them:

a) Louis Vuitton Trade-marks: The allegation is that the Trade-mark violations date back to February 1, 2009 and include not only counterfeit merchandise (referred to as the " “counterfeit Louis Vuitton merchandise” " ), but also merchandise bearing trade-marks likely to be confusingly similar to the Louis Vuitton Trade-marks (referred to as the " “infringing Louis Vuitton merchandise” " ) ;

b) Celine Trade-marks: the allegation is that the Trade-mark violations involve counterfeit Celine merchandise bearing the Celine Trade-marks;

c) Dior Trade-marks: the allegation is that the Trade-mark violations involve counterfeit Dior merchandise bearing the Dior Trade- mark;

d) Givenchy Trade-marks: the allegation is that the Trade-mark violations involve counterfeit Givenchy merchandise bearing the Givenchy Trade-marks. [ 12 ] The execution of the Anton Piller Order generated allegedly the seizure of:

a) Counterfeit and infringing Louis Vuitton merchandise, together with counterfeit packaging bearing the Louis Vuitton Trade- marks, were allegedly seized at the Wang residence, in Ms. Wang vehicle (as authorized in the Anton Piller Order) and at the Parker Place premises, considered as being the principal store operated by the defendants;

b) Counterfeit Dior merchandise, bearing the Dior trade-marks, were allegedly seized at the Wang residence and at the Parker Place store. [ 13 ] The applicants/plaintiffs allege that since 2009, the alleged importation of counterfeit merchandise has happened every two weeks. The allegation is made on the basis of statements made by Ms. Wang to investigators retained by the applicants/plaintiffs operating undercover.

They also contend that documents seized and preserved will help demonstrate such importation every two weeks. [ 14 ] As for the activities conducted by the defendants which may constitute instances of infringements, the applicants/plaintiffs allege a total of 36 instances relating to the importation, offer for sale and sale of counterfeit merchandise. The following list is taken from the notice of motion, as it frames the contours of the evidence to be led at trial with a view to establishing each instance on a balance of probabilities: (

a) On February 1, 2009, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Cloverdale Flea Market; (

b) On March 15, 2009, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Cloverdale Flea Market; (

c) On April 26, 2009, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Cloverdale Flea Market; (

d) On April 8, 2010 offering for sale Counterfeit Louis Vuitton Merchandise at the Parker Place Store, including by way of actual merchandise (taken from a drawer behind a curtained area) and showing Louise Vuitton catalogues for items to be ordered; (

e) On January 9, 2015, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store, including by way of actual merchandise and online and through the use of physical Louis Vuitton catalogues for items to be ordered; (

f) In February and March, 2015, advertising for sale Counterfeit Louis Vuitton Merchandise online at <921nini.blog.163.com> (the " “defendants’ website” " ); (

g) On April 2, 2015, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store; (

h) On April 20, 2015, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store; (

i) On May 13, 2015, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store; (

j) On June 15, 2015, advertising for sale through the defendants’ WeChat Account, each of Counterfeit Louis Vuitton Merchandise, Counterfeit Celine Merchandise and Counterfeit Dior Merchandise; (

k) Also on June 15, 2015, offering for sale Counterfeit Louis Vuitton Merchandise at the Parker Place Store, including by way of actual merchandise and showing a Louis Vuitton catalogue for items to be ordered; (

l) On July 15, 2015, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store;

(

m) On August 23, 2016, offering for sale and selling Counterfeit Louis Vuitton Merchandise, both to the investigator and another customer, at the Parker Place Store; (

n) In January, 2017, offering for sale Counterfeit Louis Vuitton Merchandise, Counterfeit Dior Merchandise and Counterfeit Givenchy Merchandise; (

o) On January 31, 2017, offering for sale and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store; (

p) In March and April, 2017, advertising for sale Counterfeit Louis Vuitton Merchandise through the Defendants’ WeChat Account; (

q) On May 12, 2017, offering for sale (from underneath the counter) and selling Counterfeit Louis Vuitton Merchandise at the Parker Place Store; (

r) On June 7, 2017, advertising for sale Counterfeit Louis Vuitton Merchandise through the Defendants’ WeChat Account; (

s) On July 11, 2017, offering for sale Counterfeit Louis Vuitton Merchandise at the Richmond Night Market; (

t) On August 11, 2017, offering for sale Counterfeit Louis Vuitton Merchandise at the Parker Place Store; (

u) On September 15, 2017, offering for sale and selling Counterfeit Louis Vuitton Merchandise (stored in plastic bags) at the Richmond Night Market; (

v) On October 29, 2017, advertising for sale through the Defendants’ WeChat Account, each of Counterfeit Celine Merchandise, Counterfeit Dior Merchandise and Counterfeit Givenchy Merchandise; (

w) On November 25, 2017, offering 'for sale Counterfeit Dior Merchandise, Counterfeit Givenchy Merchandise and Counterfeit Celine Merchandise via messaging on the Defendants’ WeChat Account; (

x) On December 4, 2017, advertising for sale Counterfeit Louis Vuitton Merchandise on the Defendants’ Website; (

y) On December 13, 2017, being in possession of significant quantities of Counterfeit Louis Vuitton Merchandise and Counterfeit Dior Merchandise, including associated counterfeit packaging, intended for sale by the Defendants, stored at both the Parker Place Store and the Wang Residence; and (

z) On December 13, 2017, having imported Counterfeit Louis Vuitton and Dior Merchandise, delivered to the Wang Residence. It is noteworthy that there is no evidence of instances of infringement between May 2010 and December 2014, yet the plaintiffs, through some interpolation, sought damages during that period on the basis of an allegation of an inventory turn-over every two weeks.

As I indicated during the hearing, this is not an inference that can be made for a period during which there is a lack of evidence of any level of business activity that could help support such an inference, assuming of course that an inventory turn-over, over and above shipments of merchandise received on a regular basis, can be justified in the circumstances of this case in view of the evidence. [ 15 ] These occurrences, if proven, give rise to violations of various provisions of the Trade-marks Act and the Copyright Act . They are: (

a) S. 19 of the Trade-marks Act : exclusive rights of the four applicants/plaintiffs to their trade-marks; (

b) S. 20 of the Trade-marks Act : for each of the four applicants/plaintiffs, the use made by the defendants is said to be likely to cause the public to believe or infer that the defendants’ wares originate from and are authorized by the four owners of their trade- marks; as such they are deemed to have infringed the exclusive rights in their marks; (

c) S. 22 of the Trade-marks Act : the use made by the defendants of the trade-marks of the four applicants/plaintiffs is likely to depreciate the value of the goodwill attached to the trade-marks; (

d) S. 7(

b) of the Trade-marks Act : the defendants are accused of having called public attention to their goods and business in a manner likely to cause confusion in Canada with the goods and business of the four plaintiffs; (

e) S. 7(

c) of the Trade-marks Act : the defendants have passed off their goods as and for those of the four plaintiffs; (

f) S. 7(

d) Trade-marks Act : the defendants used in association with goods and services a description which is false in a material way and is of a nature to mislead the public concerning the character, quality and composition of those goods and services; (

g) S. 52 of the Competition Act , R.S.C., 1985, c C-34 : false and misleading material representations to the public were made by the defendants for the purpose of directly or indirectly promoting the supply or use of their goods and business interests; (

h) Sections 3 , 27 and 38.1 of the Copyright Act by infringing the Copyrighted Works owned by Louis Vuitton. III. The parties [ 16 ] The plaintiffs involved in this litigation are well known and their corporate existence is not disputed. The plaintiffs are: Louis Vuitton Malletier S.A. is a " “société anonyme” " existing under the laws of France; Louis Vuitton Canada Inc is a subsidiary of Louis Vuitton Malletier S.A. incorporated under the laws of Canada;

Celine, Dior and Givenchy are all " “sociétés anonymes” " existing under the laws of France. As for the defendants, they are: Audrey Wang, aka Nini Wang, aka Ni Yang, a person who is a director of Canada Royal Import & Export Co. Ltd., and carried business at the Parker Place Mall (principal place of business), the Cloverdale Flea Market and the Richmond Night Market; Jun Yang, aka Michael Yang, is the spouse of Ms. Wang and he carries business in the same location as his wife, although he argued not to be involved to a great extent in the business activities; Canada Royal Import and Export Co.

Ltd is a company existing under the laws of British Columbia. The style of cause refers to the defendants as collectively doing business as Ni Fashion, Niyangbazza and Ni Bazza, and Lian Tong Courier Service. For greater certainty, it must be understood that these are not entities constituting defendants. [ 17 ] The four plaintiffs are well known manufacturers of high-end luxury products and they own trade-marks that have been registered in Canada. The trade-marks (see schedules A, B, C,

D) are used to identify their products in Canada. The plaintiffs maintain strict quality controls; they have created, developed, manufactured, advertised and marketed their products at great cost in order to convey the highest standards and utmost quality. They have all established a well-known reputation and goodwill: that goodwill is of very high value and of fundamental importance to their overall business. [ 18 ] Louis Vuitton owns the copyright in Canada in what is described as " “Multicolored Monogram-White Print” " and " “Multicolored Monogram-Black Print” " .

It has the exclusive right to produce and reproduce the artistic works, in whole or in substantive part. [ 19 ] It is alleged that the defendants conducted business out of three locations (Parker Place Mall, Cloverdale Flea Market and Richmond Night Market) as well as websites associated with the domain names <picasaweb.google.com/nifahion08> and <921nini.blog.163.com/album/#m=0&p=1>. Moreover, the defendants are alleged to infringe through the social media platform WeChat, using the nickname " “NI BAZZA” " and WeChat ID " “niyangbazza” " . IV.

Summary trial [ 20 ] The first issue that must be addressed is whether or not it is appropriate to proceed with a

summary trial in accordance with rule 216 of the Rules of the Federal Courts . The parties agree that if the Court is unable to find the facts necessary to decide the issue, it must decline to rule on the issue. They also agree that if it is unjust to give judgment, the Court must also decline to do so. Indeed, rule 216(6) says that much: " Judgment generally or on issue " " Jugement sur l’ensemble des questions ou sur une question en particulier " "

(6) If the Court is satisfied that there is sufficient evidence for adjudication, regardless of the amounts involved, the complexities of the issues and the existence of conflicting evidence, the Court may grant judgment either generally or on an issue, unless the Court is of the opinion that it would be unjust to decide the issues on the motion.

" " (6) " " Si la Cour est convaincue de la suffisance de la preuve pour trancher l’affaire, indépendamment des sommes en cause, de la complexité des questions en litige et de l’existence d’une preuve contradictoire, elle peut rendre un jugement sur l’ensemble des questions ou sur une question en particulier à moins qu’elle ne soit d’avis qu’il serait injuste de trancher les questions en litige dans le cadre de la requête. " [ 21 ]

Summary trials are possible in trade-mark cases. In the context of a motion for

summary trial involving trade-mark infringements ( Chanel S. de R.L., Chanel Limited and Chanel Inc. v Lam Chan Kee Company Limited et al , 2015 FC 1091 [ Lam Chan Kee ]), the Federal Court of Appeal ( 2016 FCA 111 ) observed: [16] Here, the trial judge committed no reviewable error in finding that it was unnecessary to hold a trial and hear evidence in order to assess the appellant’s credibility.

There was ample basis for the judge to have rejected the appellant’s version of events and to have found that there was no need for a full trial to be held in light of the convincing proof of infringement offered by the respondents’ affiants and the paucity of the appellant’s evidence. It is not simply because a defendant raises an unbelievable defence of denial in response to a motion for

summary trial that the motion must be dismissed. Cases like the present, involving ongoing sales of counterfeit goods by a defendant that seeks to put forward a specious defence, are particularly well-suited to being decided by way of

summary trial. Thus, the decision of the trial judge to proceed by way of

summary trial discloses no reviewable error. The plaintiffs are right to point out that there have been numerous instances where courts have been able to satisfy the requirements for a

summary trial in trade-mark infringement cases. That does not imply, however, that every such case is appropriate as a procedural vehicle. [ 22 ] In the case at bar, there is sufficient evidence for adjudication and it is not unjust to adjudicate on the basis of the written record, although it is quite extensive. In fact, the extensive written record allows the Court to be satisfied it has the evidence sufficient to adjudicate. The instances of infringement alleged by the plaintiffs are based on the evidence in affidavits, together with numerous photographs and other documentary evidence.

Most of the affidavits presented by the plaintiffs were not made the subject of cross- examination, thus allowing the Court to draw inferences without having to consider the credibility of witnesses other than through

internal contradictions in their testimony. None were detected. As we shall see, that evidence has great probative value given the convincing proof of infringement relative to the limited evidence offered by the defendants and the obvious implausibility of it. As for the one witness who was cross-examined, Ms. Christine Li Zhou evidence is corroborated with respect to some essential elements by the evidence of another witness, Lisa Reid, whose evidence was accepted in its entirety as she was not cross-examined. [ 23 ] The defendants make two submissions regarding the availability of

summary trial proceedings. First, they claim that the Mareva injunction executed in this case limited their resources. It is not clear how a trial that would take much longer and require very likely more resources than a

summary trial would assist in the context of limited resources. As the Supreme Court noted in Hryniak v Mauldin , 2014 SCC 7 , [2014] 1 SCR 87 [ Hryniak ], the length of civil trials is becoming the enemy of the access to justice because, among many factors, the cost of holding trials becomes prohibitive: [1] … Ensuring access to justice is the greatest challenge to the rule of law in Canada today. Trials have become increasingly expensive and protracted. Most Canadians cannot afford to sue when they are wronged or defend themselves when they are sued, and cannot afford to go to trial.

Without an effective and accessible means of enforcing rights, the rule of law is threatened. Without public adjudication of civil cases, the development of the common law is stunted. [2] Increasingly, there is recognition that a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system. This shift entails simplifying pretrial procedures and moving the emphasis away from the conventional trial in favour of proportional procedures tailored to the needs of the particular case.

The balance between procedure and access struck by our justice system must come to reflect modern reality and recognize that new models of adjudication can be fair and just. [3]

Summary judgment motions provide one such opportunity. Following the Civil Justice Reform Project:

Summary of Findings and Recommendations (2007) (the Osborne Report), Ontario amended the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 ( Ontario Rules or Rules ) to increase access to justice. This appeal, and its companion, Bruno Appliance and Furniture, Inc. v. Hryniak , 2014 SCC 8 , [2014] 1 S.C.R. 126, address the proper

interpretation of the amended Rule 20 (summary judgment motion). Moreover, in this case, submissions in writing were produced on behalf of the corporate defendant by counsel. The submissions in writing of the other two defendants were largely taken verbatim from the submissions of the corporate defendant. The corporate defendant’s counsel was present, together with an associate, throughout the

summary trial and, later on, for the damages phase of the case for which counsel produced supplemental written representations. He argued the case for his client. More importantly, the evidence has been fulsome and the defendants have been given every opportunity to present their case. More expenses were not warranted in view of the record presented to the Court. [ 24 ] The second submission relates to the one witness who was submitted to a cross-examination, one Christine Li Zhou. In fact, she was cross-examined extensively by counsel who was representing the corporate defendant as well as Ms.

Wang at the time of the cross- examination. Ms. Wang benefited from the cross-examination of counsel and she was able to cross-examine Ms. Li Zhou. The cross- examination lasted more than four hours during which Ms. Li Zhou was asked by counsel and Ms. Wang 512 questions. The second submissions is limited to the view taken by the defendants that Ms. Zhou’s deposition contains inconsistencies and unverifiable assertions. These are in the nature of arguments to be part of submissions on the weight to be given to a testimony. This does not affect the ability to achieve a fair and just adjudication.

The Supreme Court devised the following test in Hryniak , at paragraph 4 : [4] … a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. [ 25 ] It will not be every intellectual property case that would be appropriate for having a

summary trial. In the case at bar the plaintiffs’ theory of the case is relatively straight forward, and the evidence that they marshalled was not overly complex. It is, by and large, evidence of alleged instances of infringement. The complexity comes from the abundance of evidence given the theory of the case of the defendants who claims not being involved in selling counterfeit merchandise. As we shall see, it is a hard argument to make in the face of considerable evidence that was not even challenged through cross-examination. The defendants participated fully in the process, with the assistance of counsel. The motion for

summary trial is an appropriate procedural vehicle in view of the evidence and the issues raised. I have not been persuaded by the defendants that a

summary trial is not appropriate in the circumstances of this case. It constitutes a means to achieve a just result through a fair process of adjudication, being more expeditious and less expensive than going to trial. V. The evidence [ 26 ] The evidence for the plaintiffs in this case comes in the form of affidavits of 17 persons, most of whom were involved in the investigation and the execution of court orders. Except for one investigator who was cross-examined, no other affiant was submitted to cross-examination by the defendants.

Together, they were involved in a rather large number of instances, 36 in total, that are alleged to be instances of infringement. The Court has reviewed each and every one of those affidavits as well as the abundant documentary evidence. A. Ms. Jana Checa Chong [ 27 ] The investigators’ affidavits were supplemented by the affidavit of Ms. Jana Checa Chong, a senior Intellectual Property counsel for Louis Vuitton North America, operating out of New York.

Since plaintiffs Dior S.A., Celine and Givenchy S.A. are all part of a group of companies which include Louis Vuitton Malletier S.A. and Louis Vuitton Canada, Inc (LVMH Moët Hennessy Louis Vuitton SE), Ms. Checa Chong was able to testify concerning the products of the four plaintiffs in order to identify authentic and counterfeit merchandise. In other words the witness can distinguish between authorized products which bear the marks of the four plaintiffs and unauthorized

merchandise bearing those marks. [ 28 ] Thus, she testifies that she reviewed the affidavits of the six investigators and confirms that the counterfeit exhibits are all counterfeit items.

In order to do so, she identifies features that allow her to conclude that merchandise is counterfeit: The materials and craftsmanship of the products shown in the Counterfeit Exhibits are not consistent with those of genuine Louis Vuitton products; The packaging is not consistent with that of genuine Louis Vuitton products; The care cards are not consistent genuine Louis Vuitton products; The interior lining is not consistent with that of genuine Louis Vuitton products; The hardware is not consistent with that of genuine Louis Vuitton products; The production code is not consistent with that of genuine Louis Vuitton products. [ 29 ] The witness also testified about merchandise seized as part of the execution of the Anton Piller Order on December 13 and merchandise delivered to the Wang residence during the execution of the Anton Piller Order.

The items delivered to the residence are found to be " “not genuine” " : the witness lists the products’ characteristics that made her reach the conclusion. As for the items seized through the execution of the Anton Piller Order, the witness states that the quality of photographs of items she received was not always sufficient to allow her to conclude. Accordingly, 21 items were shipped to her in New York. They are mostly Louis Vuitton items. The physical inspection made her conclude that 19 of the 21 items were not genuine, while two were. They are two Louis Vuitton bags.

The fact that she concluded that some items were genuine enhances her credibility. At any rate, she was not even cross-examined by the defendants. [ 30 ] Ms. Checa Chong examined the " “packaging photographs” " taken from the seizure conducted during the execution of the Anton Piller Order. They are packaging, labelling, hand ware and other similar items. She concluded that they too are not genuine. The same is said of catalogues seized at the same time. In her view, the photographs of the catalogues depict counterfeit catalogues.

She said at paragraph 61 of her affidavit that " “(t)he catalogues show in the “catalogue photographs” are not authorized, printed, manufactured or distributed by or on behalf of Louis Vuitton, and show advertisement of items bearing one or more of the LOUIS VUITTON trademarks” " .

This of course is evidence of how significant an operation is run by the defendants that they would have in their possession not only counterfeit items as well as counterfeit packaging, but they also had counterfeit catalogues of products. [ 31 ] The activities depicted in the investigators’ affidavits and in relation to the various counterfeit items seized as part of the execution of the Anton Piller Order " “may lead the public to believe that the counterfeit merchandise sold by the Defendants are authentic [plaintiffs’ products] or have ben authorized, approved or manufactured by [the plaintiffs], and are likely to lead to confusion between the Defendants’ goods and the goods and business of [the plaintiffs]” " (affidavit of Jana Checa Chong, para 63). [ 32 ] The witness also offers evidence about the damage done to the brands through the offer for sale of counterfeit merchandise.

Consumers who purchase, or who would be inclined to purchase the plaintiffs’ products will no longer do so in view of the availability of counterfeit products in the market place. In support of that common sense observation, the witness even produces a report commissioned by the Business Action to Stop Counterfeiting and Piracy, of the International Chamber of Commerce, and the International Trademark Association.

The Report, which is close to 60 pages long, seeks to establish " “the “enormous” drain that counterfeit and pirated products have on the global economy, affecting billions in the legitimate economic activity, dislocating hundreds of thousands of legitimate jobs and exposing consumers to dangerous and ineffective products” " (affidavit of Jana Checa Chong, para 66). In fact, the report projects astronomical numbers. The report commissioned in 2015 " “forecast that the value of trade in counterfeit and pirated goods could reach $991 billion by 2022” " (page 54).

Even if one were to discount the figures as being somewhat inflated as they assume growth rates, there is no doubt that counterfeiting and piracy are significant problems. B. The investigators [ 33 ] The plaintiffs offered the evidence of six investigators who testified as to their involvement with the defendants, each documenting instances of infringement of the trade-marks of the plaintiffs. These witnesses are Brian Lambie, Lisa Low, Jasper Smith, Lisa Reid, Rojen Nouri and Christine Li Zhou. Only the evidence of Christine Li Zhou was made the subject of contestation.

(1) Brian Lambie [ 34 ] As with respect to the other investigators, Brian Lambie asserts having been trained to identify counterfeit and authentic merchandise with respect to a number of brands, including Louis Vuitton. That was not challenged. He testifies that in late December 2008, Ms. Wang and Royal Import & Export Co., Ltd came to his attention as allegedly selling counterfeit merchandise at the Parker Place Mall and the Cloverdale Flea Market. Mr. Lambie observed Ms. Wang offering for sale counterfeit Louis Vuitton merchandise. He purchased one item for $35 on March 15, 2009 at the Cloverdale Flea Market.

On March 22, 2009, a cease and desist letter was served on Ms. Wang. The cease and desist letter was very explicit. I note that Mr. Lambie testified that while he was waiting for Ms. Wang to unload merchandise from her vehicle, an announcement over the PA system warned vendors not to sell counterfeit merchandise. Ms. Wang quickly disappeared only to come back 25 minutes later. [ 35 ] Upon being served with the cease and desist letter, Ms. Wang surrendered three shoes bearing the Chanel Trade-marks. No other counterfeit merchandise was at the stall at that time. [ 36 ] Mr. Lambie observed Ms.

Wang selling counterfeit merchandise one month after having been served with the cease and desist letter. On April 26, 2009, Ms. Wang was seen showing boxes, hidden in a bag under a table, at the Cloverdale Flea Market. The boxes

bore the Louis Vuitton Trade-marks. The investigator or other investigators observed on May 19, 2019 (Parker Place Mall), on June 20, 2009 (Richmond Night Market) and October 25, 2009 (Cloverdale Flea Market) Ms. Wang selling counterfeit merchandise; however the investigator cannot attest whether such merchandise bore Louis Vuitton Trade-marks. [ 37 ] The rest of Mr. Lambie’s affidavit describes surveillance conducted by him and other investigators showing clearly the involvement of Mr. Yang on the premises used by Ms. Wang at the Parker Place Mall and the Richmond Night Market on September 15 and 16, 2017.

(2) Lisa Low [ 38 ] Lisa Low attests that she is capable of differentiating counterfeit from authentic Louis Vuitton merchandise. She testifies that on February 1, 2009, she observed Ms. Wang offering for sale and selling purses, wallet, shoes, jewellery, sunglasses and jeans, some of which bore Louis Vuitton Trade-mark at the Cloverdale Flea Market. Based on her training and experience, she testifies that the Louis Vuitton merchandise offered for sale were counterfeit. The investigator purchased a Louis Vuitton wallet for $55. The purses on display were offered at prices ranging from $180 to $280. Ms.

Wang told the investigator that her products were of a " “higher quality” " ; she advised the investigator that she could order merchandise to purchase, " “anything with a style number” " . She even had a catalogue on the table (although it was not a Louis Vuitton catalogue). The photographs taken from screen captures of a video made by Ms. Low, of the person Lisa Low met on that occasion are those of the defendant, Ms. Wang. [ 39 ] A business card obtained from Ms. Wang identifies her as Audrey Wang, Managing Director of Canada Royal Import & Export Co.

Ltd, and refers to the telephone number she used, an email presented as " “w_nini@hotmail.com” " and two websites : " “921nini.blog.163.com/album” " and " “picasaweb.google.com/nifashion08” "

(3) Jasper Smith [ 40 ] Jasper Smith is another private investigator who has been trained to identify counterfeit and authentic Louis Vuitton merchandise. Mr. Smith was involved in the surveillance conducted on the two defendants on September 15 and 16, 2017. This constitutes corroboration of the testimony of Brian Lambie. Furthermore, he testified about a visit to the Parker Place store operated by the defendants done by another investigator, Lisa Leung, who worked for him at the time.

On April 8, 2009, that investigator met a person named " “Joyce” " who worked on a part time basis for the owner, a person named " “Audrey” " . No Louis Vuitton merchandise was on display at the store. But " “Joyce” " advised the investigator that there were two handbags she had, which she retrieved from a drawer behind a curtained area. Ms. Leung purchased the two bags for $390 and $420: photographs of the bags, as well as a receipt are appended to the affidavit. They are a brown monogram handbag and a white multicolor handbag.

Furthermore, " “Joyce” " showed the investigator 2009 and 2010 Louis Vuitton catalogues, stating that orders can be placed, with shipments being made every week from a manufacturer in China; an order could be filled in two weeks. She ordered one handbag which arrived on April 27 and was picked up on April 30, 2009. [ 41 ] Mr. Smith also testified on surveillance he conducted in September 2017. The surveillance produced observations by the investigator of activities of Ms. Wang and Mr. Yang transporting a large vinyl bag. They drove to the Richmond Night Market, but only Ms.

Wang left the Night Market to go back to the Parker Place Mall. Ms. Wang then left the Parker Place Mall with two bags to go back to the Night Market. A few hours later, both Ms. Wang and her husband left together to go back to the Wang residence. This suggests that Mr. Yang was left by himself at the Richmond Night Market for a few hours. [ 42 ] The day after (Sept. 16), Ms. Wang and Mr. Yang left their residence together in one car to go to the Parker Place Mall, carrying a large bag, which was removed by Mr. Yang once at the Mall. Later that day, M. Wang and Mr.

Yang were seen driving to the Richmond Night Market, with a smaller bag having been put into the trunk of the car. Late that night, they left the Night Market together. [ 43 ] This surveillance of Ms. Wang and Mr. Yang tends to show the joint activities of the two defendants.

(4) Lisa Reid [ 44 ] Lisa Reid is another investigator who was involved in this investigation. She was trained in the recognition of counterfeit merchandise bearing the plaintiffs’ trade-marks. She attended the Parker Place Mall store on January 9, 2015, where she met with Ms. Wang. Ms. Reid perused some large magazines that included Louis Vuitton merchandise, together with a digital magazine. Returning shortly thereafter, the investigator purchased a Louis Vuitton handbag and a Louis Vuitton wallet for a total amount of $350.

The investigator was then shown a box containing numerous items, including Louis Vuitton items. All of these were counterfeit merchandise according to the investigator. Upon leaving the store, Audrey Wang provided the investigator with her business card which clearly identifies her. It is the same business card as that given to investigator Lisa Low six years earlier, in February 2009. [ 45 ] The investigation continued. In February and March 2015, the investigator testifies about online offerings of counterfeit Louis Vuitton merchandise. The websites were associated with domain names appearing on Ms.

Wang’s business card. Contact was kept with Ms. Wang who invited through an exchange of text messages Ms. Reid to come into her store to order products. During a visit on April 2, 2015, the investigator placed an order, using a Louis Vuitton catalogue. A purse was purchased on site for $235. As confirmed by Ms. Checa Chong, the item is a counterfeit. The investigator placed an order for a Louis Vuitton catalogue and four Louis Vuitton items (total of $1,450). Ms. Wang provided Ms. Reid with a handwritten note where were written her personal and business WeChat account ( " “niyangbazza” " ).

During the April 2 visit, Ms. Reid conveyed to Ms. Wang her intention of setting up her own store. She was advised by Ms. Wang that she and her partner were in the process of opening a " “backroom store” " , to be located inside a restaurant in Seattle, for Chinese women who generally prefer to shop in private. [ 46 ] During another visit, on April 20, 2015, Ms. Wang showed a new counterfeit handbag, just arrived, and the investigator placed a cash deposit for the prior order; a receipt for that transaction was produced.

[ 47 ] Another visit to the Parker Place Mall premises occurred on May 13, 2015, during which two more Louis Vuitton handbags were purchased. Moreover, the Louis Vuitton catalogue purchased on a prior occasion was delivered that day. Ms. Checa Chong confirmed that the bags were counterfeit. [ 48 ] Ms. Reid continued to pose as someone interested in setting up her own store. Ms. Reid testified that on July 15, 2015, Ms. Wang offered her some advice: 14. On July 15, 2015, I again attended the Parker Place Premises with Agent Gagnon. Ms. Wang asked us about how our “stores” were coming along. Agent Gagnon asked Ms.

Wang if it was better to set up a backroom and sell the counterfeit products from the backroom. Ms. Wang quickly replied that “you do not need a backroom, all you need is a display with some real products on it to show the customers that you have authentic products”. Ms Wang further stated “you can always trust Vietnamese and Chinese people as they will cause no trouble for you and they will always buy product and spend their money”.

She stated that she has been doing this for a long time without any trouble, by simply placing a few authentic items in a display cabinet and then introducing the counterfeit items once she feels there is no threat with the person visiting the store. [Affidavit of Lisa Reid, para 14.] Mr. Wang offered to be acting as a wholesaler for Ms. Reid. Ms. Reid also purchased a purse on that occasion for $300. The purse was confirmed by Ms. Checa Chong as being a counterfeit. [ 49 ] The investigator had opened her own WeChat account following her visit of April 2, 2015 during which Ms.

Wang gave a handwritten note where she wrote " “#WeChat niyangbazza” " . The witness testified at paragraph 18 of her affidavit: 18. In April 2015, I also opened a WeChat account, and located numerous counterfeit items for sale through the WeChat account niyangbazza, including Louis Vuitton. In an update on the niyangbazza WeChat account as of June 15, 2015, at least the following brands were for sale: Louis Vuitton, Celine and Dior.

(5) Rojen Nouri [ 50 ] Rojen Nouri, another trained investigator, testified through her affidavit about a number of instances of infringements. On June 15, 2015, she attended the defendants’ store located at the Parker Place Mall. She met there an individual who identified herself as " “Audrey Wang” " . The witness testified that she observed four bags bearing the Louis Vuitton trade-marks. Ms. Wang indicated that it was possible to order Louis Vuitton merchandise through a catalogue that was shown to her: shipments are arriving each week. [ 51 ] On August 7 and August 18, 2016, Ms.

Nouri attended the Parker Place Mall store. It was closed. On August 22, she called the telephone number written on a sign on the store’s door, the same number given to Lisa Reid on the handwritten note where Ms. Wang made reference to " “niyangbazza” " in relation to a WeChat account. A person identifying herself as " “Audrey Wang” " answered. She indicated that the stock was low but there were catalogues available for Ms. Nouri to consult. The day after, Ms. Wang called to advise that a new shipment has just arrived. Ms. Nouri attended the store shortly thereafter.

She saw merchandise branded as " “Louis Vuitton” " , but also " “Chanel” " , " “Chloé” " , " “Hermès” " and " “Gucci” " . The shipment appeared to be fairly large, with at least 5 bags and wallets for each brand. While on location, the witness saw a man picking up a bag bearing Louis Vuitton trade-marks. [ 52 ] On July 11, 2017, close to a year later, Ms. Nouri saw Ms. Wang at the Richmond Night Market selling merchandise bearing the Louis Vuitton Trade-marks. As a variation on the same theme, Ms. Nouri attended the booth operated by Ms. Wang at the Richmond Night Market on September 15, 2017.

However, the person minding the store was an Asian man who identified himself as " “Michael” " . When Ms. Nouri inquired about items, " “Michael” " removed two Louis Vuitton items from a vinyl bag that was in the booth; there were other items in the vinyl bag, but they were not identified. The Louis Vuitton items were being offered for sale at $120. The witness purchased a Louis Vuitton wallet for $90 from " “Michael” " .

Given her experience and training, the witness testified that the Louis Vuitton items offered for sale and sold were counterfeit. [ 53 ] None of these five witnesses involved in these 17 alleged instances of infringement were cross-examined. In my view, there is no reason to conclude that their testimony is anything but truthful. The only evidence from the defendants is limited to a general denial that they continued to sell counterfeit merchandise after the cease and desist letter of 2009. The specific comments made by Ms.

Wang about the testimony of Lisa Low, Brian Lambie and Rojen Nouri amount to very little, if anything. Ms. Wang does not remember the encounter with Lisa Low; Ms. Wang has not attended the Cloverdale Flea Market for " “at least last 7 to 8 years” " (affidavit of Audrey Wang, para 65 ). This was in response to the affidavit of Brian Lambie who testified about his encounter with Ms. Wang in March 2009 and his observations in April 2009 at the Cloverdale Flea Market. Ms. Wang’s affidavit is dated October 25, 2018. It is not clear what the purpose is to make such statement. Mr.

Lambie testified that a cease and desist letter, which was unambiguous, was delivered to Ms. Wang on March 22, 2009 at her stall at the Cloverdale Flea Market. He returned on April 26, 2009. If Ms. Wang was not at the Cloverdale Flea Market on those two occasions, then some of her comments in her affidavit are rather bizarre. For instance, she says that she did not sell any Louis Vuitton merchandise at her stall at the Cloverdale Flea Market in 2009 and 2010. Evidently, she had a stall at the flea market. Even more surprising is her response to an incident on March 22, 2009 when Mr.

Lambie related that came over the PA system a warning to vendors not to sell counterfeit merchandise. Mr. Lambie says that Ms. Wang disappeared for 25 minutes. It is surprising that Ms. Wang acknowledges her presence at the Cloverdale Flea Market by seeking to provide an explanation for her sudden departure from her stall for some 25 minutes. It is clear that these statements do not affect in any way the evidence of Mr. Lambie. A less charitable

interpretation about the statement at paragraph 65 of Ms. Wang’s affidavit would be that it is misleading. Ms Wang was operating a stall at the Cloverdale Flea Market in 2009; Ms. Wang stressed, in response to the Nouri affidavit, that shipments did not arrive every week. In the circumstances of this case,

this is completely inconsequential as Ms. Nouri testified about alleged specific offerings for sale and selling of counterfeit merchandise. [ 54 ] I note that there was not even an attempt by the defendants to take issue with the evidence of Lisa Reid and Jasper Smith. It should be remembered that it is Ms. Reid who gave evidence about Ms. Wang giving her a handwritten note connecting her WeChat account with " “niyangbazza” " . [ 55 ] As a result, the Court finds that rule 216(4) applies fully in this case.

It reads: " Adverse inference " " Conclusions défavorables " " " " 4) The Court may draw an adverse inference if a party fails to cross-examine on an affidavit or to file responding or rebuttal evidence. " " (4) " " La Cour peut tirer des conclusions défavorables du fait qu’une

partie ne procède pas au contre-interrogatoire du déclarant d’un affidavit ou ne dépose pas de preuve contradictoire. " The evidence of these five witnesses is unassailable. The instances of infringement are proven to the Court’s satisfaction.

(6) Christine Li Zhou [ 56 ] The testimony of Christine Li Zhou, contrary to that of the other main witnesses, was challenged. She testified about 14 alleged instances of infringement. It appears from the evidence that she befriended Ms. Wang or, at the very least, that her fluency in Cantonese and Mandarin may have had a positive impact on the good relationship that developed between the two. [ 57 ] Christine Li Zhou was not an experienced investigator. She is a paralegal with university education.

Nevertheless she had been trained to differentiate counterfeit and authentic merchandise, including merchandise that bears the Louis Vuitton Trade-marks.

Her involvement in this investigation begins in January 2017. [ 58 ] On January 7, 2017, she noted that was offered for sale, at the Parker Place Mall store, the defendants’ merchandise that could be counterfeit products; it included merchandise presented as genuine Louis Vuitton, Givenchy and Dior products. [ 59 ] Having noted that the defendants’ store located in the Parker Place Mall was often closed, she entered the number posted on the door into her contacts on her phone. Ms. Li Zhou has her own WeChat account.

When she opened her WeChat application, " “a WeChat profile came up for that phone number [the phone number posted on the store’s door], with the “nickname” NI BAZZA and WeChat ID: niyangbazza” " (affidavit of Christine Li Zhou, para 5). The affiant goes on to describe what WeChat is: 5. … WeChat is a predominantly Chinese social media platform, somewhat similar to a combination of Facebook, Pinterest and online sales platforms like eBay and Alibaba. It is a software application platform that operates predominanetly [sic] on smart phones, though it is available for use via the internet as well.

It is used for many different purposes, one of which is to facilitate the offer for sale and sale of merchandise. 6. The WeChat platform uses a “nickname” that appears on a user’s profile page and all postings, with the WeChat ID appearing on the profile page. Through my exchanges with Ms. Yang, as described herein, her “nickname” appeared originally as NI BAZZA and subsequently as BAZZA, both as associated with the WeChat ID: niyangbazza (“Ni Bazza”). [ 60 ] On January 31, 2017, Ms. Li Zhou attended the Parker Place premises.

She asked if the person working at the store was " “Ni Yang” " , based on the WeChat ID name ( " “niyangbazza” " ). The person nodded but indicated that she can be called " “Audrey” " . The witness testified that a conversation ensued. Ni Yang indicated her preference for doing business through WeChat as it can reach more customers and have an extensive catalogue. Ms. Yang confided that she had recently given birth to a child. The photographs taken that day show counterfeit merchandise, including Louis Vuitton merchandise.

The witness also testified that in January 2017, she observed merchandise offered for sale bearing the trade-marks of Louis Vuitton, Givenchy and Dior at the Parker Place Mall store. [ 61 ] On February 14, 2017, Ms. Li Zhou sent a " “friend request” " to the Ni Bazza profile, using her own " “WeChat handle” " which is linked to her own telephone number. The request was accepted and she was able to review the Ni Bazza postings, which revealed, according to the witness, a significant amount of Louis Vuitton products.

A screen capture made on February 17, 2017 shows what appears to be some advertisement for counterfeit Chanel merchandise as the message translate as " “Haha we invested 4000 + USD in buying the real product as a template. Soft lambskin, hardware, made 5 color tones, we made a big investment with this one. Burgundy color now available” " . [ 62 ] An initial contact was made with Ni Bazza (Ms. Yang/Audrey) on February 24, 2017.

The short exchange produced the confirmation that Ni Bazza’s store is located at " “Parker Place” " . [ 63 ] The affiant asserts that followed numerous exchanges through the Ni Bazza profile. In March and April 2017, the affiant passed by the store on several occasions: the store was closed with the sign on the door informing interested persons passing by of a return in 10 minutes, together with the same telephone number. Ms. Li Zhou stated that she perused Ni Bazza posts, noting postings for Louis Vuitton merchandise. In May 2017, Ms. Li Zhou made an appointment with Ni Bazza (the nickname) through WeChat.

The appointment was made for that evening, Ni Bazza insisting that the store would be opened for her. There is produced the screen capture of the exchange. The appointment happened as planned, with Ms. Yang arriving after the affiant. [ 64 ] Ms. Yang showed the affiant a number of handbags, including Louis Vuitton bags, pulled from under a counter underneath the cash register. Ms. Yang spoke about shipments arriving every two weeks from China; the shipments are with respect to specific orders requested from the WeChat catalogue. Ms. Li Zhou bought a Louis Vuitton purse for $350.

On that occasion scarves were also seen. As she was leaving, Ms. Li Zhou asked about Ms. Yang’s Chinese name, to which Ms. Yang is said to have responded something to the effect that is whatever it is on WeChat, but you can call me Audrey. A photograph of Ni Bazza/Ms. Yang/Audrey was taken on May 12

by the affiant. There is no doubt that it is a photograph of Ms. Wang, one of the defendants. [ 65 ] The appointment to visit the store on May 12 was confirmed through WeChat, with screen captures available to prove the existence of the exchange. The appointment happened that night. In other words, an appointment arranged through communications via WeChat produces the presence of Ms. Wang at the time and the place for the pre-arranged appointment. [ 66 ] Evidence concerning a Chanel handbag is relevant to the proceedings because it connects the WeChat account with Ms. Wang.

I reproduce in its entirety the evidence offered by Ms. Li Zhou: 13. In May 2, 2017, using an April 2017 posting on WeChat made by Ni Bazza for a Chanel handbag, I sent a WeChat message to Ni Bazza, again using my WeChat handle “christinez899”. In my message, I asked Ms. Yang if I could purchase that particular Chanel bag from her. Within a half hour, I received a voice mail from an individual, now known to me as Ms.

Yang, stating that the “bags are of the highest quality, the bags are custom made per order and sent from China”, that she already had two orders for the bag and that she offers the bag in either silver or gold trim. Attached hereto as Exhibit D is a screen capture, taken from my phone, of the April 19, 2017 postings that I used to commence inquiries with the Ni Bazza profile, along with a translation of the April 19, 2017 postings that was provided to me by Norton Rose Fulbright Canada LLP. The exchange was followed on May 17 by a WeChat voice message from Ms. Wang.

That message was produced by the witness on a CD. [ 67 ] During another encounter at the Parker Place Mall, on May 19, 2017, Ms. Yang confirmed receiving shipments every two weeks: they are to satisfy orders placed by customers. Ms. Yang also confirmed that bags are high quality fakes, being handmade and are replicas of genuine bags " “immediately in front of them as they craft the fakes” " (affidavit of Christine Li Zhou, para 22). [ 68 ] The exchange of WeChat messages continued concerning the Chanel bag ordered earlier. The exchange is about the projected date of arrival of the item and is in evidence.

It took place on June 11 and 12. An appointment was arranged for June 17 in order to pick up the Chanel bag. On June 17, Ms. Li Zhou met with Ms. Yang. There was a man at the store opening boxes and placing their contents out of sight, under the cash register or in drawers. [ 69 ] More evidence of the connexion between Ms. Li Zhou and Ms. Yang came on August 9, 2017, concerning the purchase of a Hermès bag. The exchange of messages seems to have been initiated by Ms. Li Zhou, but Ms.

Wang responded to it by adding that a new shipment had arrived. [ 70 ] On August 11, 2017, during yet another visit at the Parker Place premises (the affiant had purchased a counterfeit Hermès bag and she picked it up), Ms. Li Zhou was shown several Louis Vuitton wallets taken from plastic bags. During their conversation, Ms. Yang spoke about the grades of quality for goods, claiming that she sells the highest quality to Chinese customers, while Caucasian customers get the lower quality. [ 71 ] The affiant was asked by the plaintiffs to screen capture various postings from the Ni Bazza profile.

It is a good thing they did because Ms. Li Zhou could not find them the day the Anton Piller Order was executed.

They are: on June 7, 2017: there are upwards of 400 captures of Louis Vuitton products (exhibit Q to the Li Zhou affidavit); on October 29, 2017: there are 37 captures of Givenchy products (exhibit R to the Li Zhou affidavit); on October 29, 2017: there are 10 captures of Celine products (exhibit S to the Li Zhou affidavit); on October 29, 2017: there are 188 captures of Dior products(exhibit T to the Li Zhou affidavit). [ 72 ] On November 25, 2017, the affiant inquired about the availability of Dior, Givenchy and Celine products.

The availability would be better early in 2018, for Givenchy and Celine products, while a shipment of Dior products was expected shortly. However, it is unclear whether these products were already sold out. [ 73 ] On December 13, 2017, the day the Anton Piller Order was executed at the Wang residence and at the store located at the Parker Place Mall, the witness and Ms. Wang exchanged messages using the WeChat Ni Bazza profile and Ms. Li Zhou’s ID. The WeChat exchange was screen captured and is in evidence. Those were voice messages that appeared to ascertain when Ms. Wang would be at the store.

The exchange appears to have taken place to ascertain the presence of the defendant at the store before the Anton Piller Order was to be executed. These messages, as well as others, were not accessible when Ms.

Li Zhou attempted to access them in August 2018. [ 74 ] Furthermore, on that same day, December 13, 2017, but late at night, the witness attempted to gain access to the photos posted on WeChat in association with the Ni Bazza profile, to which reference is made at paragraph 71 of these reasons and which are found at exhibits Q, R, S, T to the Li Zhou affidavit (showing Louis Vuitton, Givenchy, Celine and Dior items). The images had disappeared from the WeChat profile. [ 75 ] Ms. Li Zhou deposed, in conclusion in her affidavit, that Ms. Yang/Wang spoke in terms of shipments every two weeks. Furthermore, Ms.

Yang/Wang told her on numerous occasions that shipments were unpacked by her husband, which she witnessed herself once. On cross-examination, the witness was asked how she knew that it was Ms. Wang’s husband whom the witness saw unpacking: the answer was simply that it is Ms. Wang who introduced him to the witness. That was not challenged further. [ 76 ] In all her interactions with Ms. Yang/Wang, Ms. Wang represented the merchandise she was offering for sale and selling as being copies. She never represented the merchandise as being in any way genuine.

Finally, the witness identified specifically Ni Yang as being the defendant, Ms. Wang.

[ 77 ] The attempt at discrediting Ms. Christine Li Zhou was in my view completely unsuccessful. In essence, the defendants offer a complete denial of the evidence offered in this case. That of course includes the evidence of Ms. Li Zhou. However, the uncontradicted evidence of other witnesses establishes the involvement of the defendants in the selling and offering for sale of counterfeit merchandise. For instance Ms. Wang denies having used websites to sell counterfeit goods; she even claims not having used the website and blog for many years.

However, the same business card, with the addresses of a website and a blog, were given to investigator Low in 2009 and investigator Reid in 2015 who also received from Ms. Wang the handwritten note connecting WeChat with " “niyangbazza” " . Neither one of these investigators was cross-examined. It will be recalled that Ms. Li Zhou testified as to how she established her connection with " “niyangbazza” " . I reproduced at paragraph 59 of the Court’s reasons for judgment the evidence from Ms. Li Zhou’s affidavit.

This constitutes the same WeChat/ID " “niyangbazza” " appearing on the handwritten note given to Lisa Reid by Ms. Wang. It corroborates the evidence of Ms. Li Zhou. The said note not only referred to WeChat/niyangbazza, but also to the telephone number which appeared on the store’s door when Ms. Wang was not present. The contacts between her and Ms. Wang are substantiated by numerous screen captures of exchanges of messages that, among other things, confirm appointments, following which Ms. Wang actually shows up when and where agreed to. [ 78 ] Thus the general denial by the defendants that Ms.

Wang never used the WeChat names " “Ni Bazza” " or " “Bazza” " , nor the WeChat ID " “niyangbazza” " (Audrey Wang’s affidavit, para 34 ), rings rather hollow. Her claim that she has had a WeChat profile that is different from what is in evidence in this case is suspect and makes her denial less than believable. The evidence strongly points in the direction of Ms. Wang being associated to WeChat names and WeChat ID.

As for the denial about the use of the WeChat account for the purpose of advertising for sale Louis Vuitton, Givenchy, Dior and Celine merchandise, it bears repeating that Lisa Reid, whose testimony was not challenged, also testified about the use of WeChat concerning Louis Vuitton, Dior and Celine merchandise. Moreover, the Q, R, S, T exhibits to the Li Zhou affidavit are difficult to refute and have not been refuted. [ 79 ] The more than four hours of cross-examination of Ms. Li Zhou did not produce much in terms of revelations.

To be sure, the fact that she did not make or keep notes concerning various encounters with Ms. Wang during 2017 did not enhance her testimony. One would think that it is preferable to keep notes. However, having read the cross-examination on three occasions, I conclude that Ms. Li Zhou’s credibility was not affected significantly because of the lack of notes. It is to be noted that her account is largely corroborated by documentary evidence. C.

Evidence arising out of the execution of the Anton Piller Order [ 80 ] The plaintiffs allege that a number of instances of infringement arise out of the execution of the Anton Piller Order on December 13, 2017. There are four such allegations and they pertain to Louis Vuitton and Dior merchandise. [ 81 ] The Anton Piller Order was authorized by the Court on December 12, 2018, and gave authority to search and seize at two locations: the Wang residence and the store at the Parker Place Mall, together with the Wang vehicle. Here is a short

summary of what was found at the three locations. Will be found in

schedule E a fuller lists prepared by the plaintiffs of items preserved during the execution of the order: (

a) Parker Place store: goods, packaging, bags, labels, tags and authenticity cards bearing the plaintiffs’ trade-marks. Ledgers and notebooks that contain names, product names as well as dollar values, with notations suggesting sale of products bearing trade- marks of Louis Vuitton, Dior and Celine; (

b) Wang vehicle: in the trunk of the car were found what proved to be counterfeit Louis Vuitton goods and key chains bearing the Dior trade-marks, together with some notebooks; (

c) Wang residence: here again Louis Vuitton and Dior merchandise were found, as well as records. [ 82 ] During the execution of the Order was delivered a package to the Wang residence. It was presented as a " “Commercial invoice” " addressed to " “Ni Ni Wang” " . The package contained a variety of brand name merchandise, including counterfeit Louis Vuitton and Dior goods (bag and scarves). The items retained were documented through an impressive number of photographs. [ 83 ] The evidence of infringement on December 13, 2017 was with respect to Louis Vuitton and Dior merchandise.

The evidence presented comes from the affidavit of the two independent supervising solicitors, a bailiff on duty at the residence, Ms. Checa Chong and Amy Jobson who introduced into evidence a large quantity of documentary evidence. Concerning Dior and Louis Vuitton, the allegations are that (1) the defendants were in possession of counterfeit Dior and Louis Vuitton merchandise for sale and that (2) they had imported Louis Vuitton and counterfeit Dior merchandise, delivered to the Wang residence. I have concluded that only 3 of the four allegations are supported by sufficiently clear evidence.

The alleged infringement with respect to Dior that is rejected is that of the importation of Dior merchandise received in the package delivered to the residence. [ 84 ] Robert Lynch is a bailiff who was part of the team executing the Anton Piller Order at the Wang residence. While performing his duty under the Order, he answered the door as a package was being delivered. He opened the package. He reported on the contents of the package and provides photographs of the items received.

Many different brands were represented, including Louis Vuitton merchandise. [ 85 ] From the photographs of the contents of the package, the items presented as being products from Chanel, Hermès, Saint-Laurent, Manolo Blahnik, Gucci and Louis Vuitton are easily recognizable. [ 86 ] An independent supervising solicitor acting at the Wang residence, David Wotherspoon, produced his report which was filed into evidence. Like every witness other than Ms. Li Zhou, he was not cross-examined. He accepted the package which was identified as having been shipped from China.

A list of items seized at the residence is appended. The plaintiffs also bring to the Court’s attention the affidavit of Ms. Checa Chong who testifies about the contents of the package. She identifies specifically the Louis Vuitton merchandise found in the package (annex G to her affidavit) and confirms that they constitute counterfeit merchandise. [ 87 ] This uncontradicted evidence satisfies the Court that the Louis Vuitton merchandise was counterfeit merchandise and was delivered

to the residence. [ 88 ] On the other hand, the plaintiffs, using exactly the same evidence offered by Mr. Lynch, Mr. Wotherspoon and Ms. Checa Chong, claim that counterfeit Dior merchandise was delivered to the Wang residence on December 13, 2017. That is meant to constitute another specific instance of infringement. Although, as already found, the evidence is sufficient with respect to the Vuitton merchandise received at the residence and coming from China, it is not the case for the Dior plaintiff.

It is clear from the Wotherspoon evidence that the list of items seized at the residence does not differentiate between items which were at the residence and those delivered on December 13, 2017. That includes Dior merchandise, but does not differentiate between the merchandise seized on the premises and Dior merchandise allegedly included in the package received at the residence. It would therefore appear that the Dior plaintiff relies on the photographs found in the Lynch and Checa Chong affidavits. Both Mr. Lynch and Ms.

Checa Chong provide photographs of the items having been shipped from China: I have not been able to identify any Dior product out of the photographs, which are of poor quality, offered as evidence of Dior merchandise received from China that day.

It follows that the allegation concerning counterfeit Dior merchandise alleged to be a counterfeit Dior scarf received in a package delivered to the Wang residence on December 13, 2017 has not been proven on a balance of probabilities, which requires that the evidence be sufficiently clear, convincing and cogent. [ 89 ] As for merchandise seized during the execution of the Anton Piller Order at the Parker Place store, two allegations were made: being in possession for sale of counterfeit Dior merchandise and being in possession of significant quantities of counterfeit Louis Vuitton merchandise.

In both cases, the plaintiffs rely on the evidence of Paul Smith, the independent supervising solicitor for the Parker Place execution, Amy Jobson who introduced into evidence a large number of photographs representing, among others, Louis Vuitton and Dior items, and Ms. Checa Chong. [ 90 ] The evidence of Mr. Smith is his report following the execution of the Anton Piller Order at the store. The list of seized items is quite impressive (schedule E to this judgment). The evidence of Ms.

Checa Chong confirms that with respect to items which were such that she was unable to determine from photographs whether counterfeit or genuine, she confirmed that 19/21 items sent to her in New York were not genuine; the two genuine items were Louis Vuitton purses (it is to be recalled that the evidence of one investigator who posed as being interested in opening her one store, was to the effect that a retailer should have some genuine items). [ 91 ] In view of the large amount of merchandise seized (goods, packaging, bags, labels, tags, authenticity cards) at the store, it is established on the evidence that the defendants operated on a rather large scale. [ 92 ] Although in much smaller quantity, there are Dior items clearly identified as such.

They are all counterfeit. Accordingly these items seized as part of the Anton Piller Order on the premises of the defendants’ store are instances of infringement concerning Louis Vuitton and Dior. [ 93 ] Accordingly, out of the 36 allegations of instances of infringement, 35 must be considered further for the purpose of concluding whether they constitute instances of infringement. Is appended as

schedule F to the reasons for judgment a

summary of evidence of instances of infringement. I have identified as not proven with sufficiently clear and convincing evidence the alleged instance of infringement, on December 13, 2017, with an asterisk. D. Audrey Wang’s evidence [ 94 ] The plaintiffs in their written case present a litany of contradictions in the evidence of Ms. Wang in these proceedings. She testified at the contempt proceedings, at the defendants’ motion to set aside the Mareva injunction and there is her evidence in the

summary trial examination. They note in particular the evidence with respect to the Ni Bazza WeChat profile. In view of the importance taken in these proceedings of issues around the WeChat profile, I have reviewed in some details this issue to conclude that the evidence points in the direction adverse to the interests of the defendants. It is not necessary, for our purposes, to examine carefully the contradictions between the various versions offered by Ms. Wang.

It suffices that the various contradictions were left to stand. [ 95 ] The plaintiffs dedicate 35 paragraphs to various contradictions in the evidence offered by Ms. Wang over a rather short period of time, i.e. since the execution of the Anton Piller Order. I have reviewed the various affidavits and the cross-examinations and, indeed there are a large number of unexplained contradictions or unexplained " “evolutions” " of Ms. Wang’s testimony.

The plaintiffs’ factum, where the numerous contradictions are presented, was filed on December 21, 2018 while the factum of the various defendants, which have some not insignificant similarities, came three weeks later. There was ample time for the defendants to seek to dispel misunderstandings, or to provide a persuasive explanation in the three weeks that followed before the written representations were filed.

That did not happen. [ 96 ] Given the sheer volume of alleged contradictions made by the Plaintiffs, and very explicitly described, none is addressed in the facta presented on behalf of the corporate defendant and by Ms. Wang. Eleven pages and 35 paragraphs are dedicated to attacking the credibility of Ms. Wang, yet she has not sought to refute any of the allegations. The defendants simply ignore the issues. That is surprising. That would leave the Court with little to discard the allegations of significant contradictions. As reminded by the plaintiffs, my colleague Mr.

Justice Lafrenière, in dismissing the motion to set aside the Mareva injunction, on November 28, 2018, stated that " “Ms. Wang is at best a stranger to the truth” " at paragraph 26 of his reasons for judgment ( 2018 FC 1198 ). An explanation that never came was called for. Instead, ignoring the allegations tends to give even more weight to the words of my colleague. [ 97 ] A case in point is of course the WeChat profile. A significant piece of evidence is the handwritten note given to investigator Reid in 2015 which, if believed, would corroborate the testimony of Ms. Li Zhou in that it connects Ms.

Wang with the WeChat account and with the ID " “niyangbazza” " . Ms. Reid’s evidence stands as the defendants chose not to cross-examine her. I have already found that this is a linchpin in linking Ms. Wang with the WeChat ID. Ms. Wang may well have realized the importance of this piece of evidence because she first denied writing the handwritten note (it is rather brief) during her Mareva injunction cross-examination, then she admitted that the handwriting was hers (in the

summary trial examination) to then concoct a story that the note was for Ms. Reid to look elsewhere for merchandise she sought because they can be found on the internet. Implausible is not a word strong enough to describe that story in view of the sinuous route taken to get there and the propensity of Ms. Wang to generate and drum up business. The lack of precision of what would have been said to Ms. Reid on that occasion and the decision not to cross-examine Ms. Reid weaken even more

the new version to acknowledge finally having written the short note. The two stories cannot both be true: denying having written the note and having written the note to help a customer by directing her to a WeChat account which, perhaps by coincidence, has in its ID, the letters NI YANG. [ 98 ] Instead of addressing the contradictions put squarely before the Court in the plaintiffs’ written case, the plaintiffs ignore them to double down and continue to argue that they are not associated with that WeChat account. Ignoring evidence will not make it go away.

As the evidence shows, the connexion between the WeChat account and Ms. Wang, as testified to by Ms. Li Zhou, is supported by the fact that meetings arranged through WeChat, including meetings directly related to this case (but also concerning other brands), are actually taking place on May 12, 2017, in August 2017 and on the day the Anton Piller Order was executed. Each time, the appointments are arranged for meeting at the store with the user of the WeChat account and, each time, Ms. Wang/Yang is the person who shows up at the store (usually late) to receive Ms. Li Zhou. [ 99 ] In fact there is more. Ms.

Wang claims that there exists a different WeChat profile which is hers. The plaintiffs assert that during her

summary trial examination, she conceded that the evidence around the " “other profile” " was created after the execution of the Anton Piller Order, on December 13, 2017, the day Ms. Li Zhou further claims the images of counterfeit goods posted on the WeChat account were removed. " “Concession” " may be a strong word in the circumstances but, importantly, Ms. Wang never produced a single WeChat conversation from that other, and seemingly new, WeChat account. That called for an explanation, not ignoring the issue. Instead, Ms.

Wang lamely continued to argue that " “(t)he plaintiffs failed to produce substantive evidence that Ms. Wang is the WeChat account holder for the Infringing WeChat Profile” " ( Wang ’s factum, para 100 ). I disagree. Such is not the case. The evidence of investigators Reid and Li Zhou, on the contrary, is cogent as the evidence of one strengthens and corroborates the evidence of the other. [ 100 ] There were other surprising statements. Ms.

Wang claims that following the cease and desist letter served on her in 2009, in spite of the fact that she was not selling counterfeit merchandise, she ceased to sell the products in order to avoid conflict. This is a surprising statement. The cease and desist order was served on March 22, 2009. The investigator had bought the week before a counterfeit Louis Vuitton item. Furthermore, according to the affidavit of Brian Lambie, upon being served with the cease and desist letter, Ms. Wang surrendered three wallets and three shoes bearing the Chanel Trade-marks. It seems that Ms.

Wang knew on March 22, 2009 that she was selling counterfeit merchandise, although not merchandise of the plaintiffs. On April 26, 2009, with the cease and desist letter still fresh, she was seen showing customers boxes bearing Louis Vuitton Trade-marks, taken from a bag hidden under a table. M. Lambie was not cross-examined and his evidence stands. In that same vein, she claims that " “(s)ince 2009 Ms. Wang and the Company have sold non- luxury clothing brands” " (affidavit of Audrey Wang , para 28 , repeated in the factum of the corporate defendant at para 22 and the factum of Audrey Wang , at para 22 ).

That does not concord with the uncontradicted evidence of other investigators. [ 101 ] As seen in these reasons, the evidence is solid and unblemished. The only other arguments offered by the defendants relate to other instances of alleged infringement. The Court has already addressed the instances of infringement about which the other five investigators testified without their evidence being challenged. As for the evidence of Ms.

Li Zhou, her evidence concerning the Givenchy and Celine trade-marks is of course disputed because it relies on advertising for sale or offering for sale through the defendants’ WeChat account. Given the conclusion that the WeChat account was that used by Ms. Wang, the arguments fail. The Court is also satisfied on the balance of probabilities that Givenchy, Dior and Louis Vuitton items offered for sale in January 2017 at the Parker Place store were counterfeit Givenchy, Dior and Louis Vuitton merchandise, in view of the evidence presented by Ms.

Li Zhou and other evidence of grand scale selling of counterfeit merchandise. E. Evidence of Jun Yang, aka Michael Yang [ 102 ] Mr. Yang is the spouse of Audrey Wang, aka Nini Wang, aka Ni Ni Yang. He claims that he has no role or position in the corporate defendant. He claimed being a full time auto body mechanic. That too is surprising as he was not gainfully employed since his departure from a firm in July 2015. The rest of his evidence serves to support his wife’s evidence and the defendants’ argument that a

summary trial is inappropriate in the circumstances. [ 103 ] In fact Mr. Yang helped around the Parker Place store with unloading merchandise, including in the presence of Ms. Li Zhou, and, indeed he minded the store and sold a counterfeit item to one of the investigators. He appeared to be the person taking charge in his wife’s absence. In fact he was seen on numerous occasions loading and unloading merchandise, as he claimed that his wife had recently given birth (January 2016) and suffered f

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