HIS HIGHNESS PRINCE KARIM AGA KHAN Appellant v. NAGIB TAJDIN, ALNAZ JIWA, JOHN DOE, 2014 FCA 6

Date: 20140115 Docket: A-156-13 Citation: 2014 FCA 6 CORAM: GAUTHIER J.A. TRUDEL J.A. MAINVILLE J.A. BETWEEN: HIS HIGHNESS PRINCE KARIM AGA KHAN Appellant and NAGIB TAJDIN, ALNAZ JIWA, JOHN DOE and DOE CO. and all other persons or entities unknown to the Plaintiff who are reproducing, publishing, promoting and/or authorizing the reproduction and promotion of the Infringing Materials Respondents Heard at Montréal, Quebec, on January 15, 2014. Judgment delivered from the Bench at Montréal, Quebec, on January 15, 2014. REASONS FOR JUDGMENT OF THE COURT BY: TRUDEL J.A. Date: 20140115 Docket: A-156-13 Citation: 2014 FCA 6 CORAM: GAUTHIER J.A. TRUDEL J.A. MAINVILLE J.A.

BETWEEN: HIS HIGHNESS PRINCE KARIM AGA KHAN Appellant andNAGIB TAJDIN, ALNAZ JIWA, JOHN DOE and DOE CO. and all other persons or entities unknown to the Plaintiff who are reproducing,publishing, promoting and/or authorizing the reproduction and promotion of the InfringingMaterials Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Montréal, Quebec, on January 15, 2014).

TRUDEL J.A. [1] This is an appeal of an order rendered by Justice Tremblay-Lamer on April 24, 2013, in which she granted the respondents’motion in part and set aside an order of Prothonotary Milczynski dated October 29, 2012 (T-514-10). Prothonotary Milczynski hadordered the respondents to produce certain documents and to answer a number of questions they had previously refused to answer on anexamination for discovery. Justice Tremblay-Lamer set aside the Prothonotary’s order with the exception that she still required therespondents to answer one question. [2] In Z.I. Pompey Industrie v.

ECU-Line N.V., 2003 SCC 27, the Supreme Court held that: 18 Discretionary orders of prothonotaries ought to be disturbed by a motions judge only where (

a) they are clearly wrong, in the sensethat the exercise of discretion was based upon a wrong principle or a misapprehension of the facts, or (

b) in making them, theprothonotary improperly exercised his or her discretion on a question vital to the final issue of the case: Canada v. Aqua-GemInvestments Ltd., (FCA), [1993] 2 F.C. 425 (C.A.), per MacGuigan J.A., at pp. 462-63. An appellate court mayinterfere with the decision of a motions judge where the motions judge had no grounds to interfere with the prothonotary's decision or, inthe event such grounds existed, if the decision of the motions judge was arrived at on a wrong basis or was plainly wrong: Jian ShengCo. v.

Great Tempo S.A., (FCA), [1998] 3 F.C. 418 (C.A.), per Décary J.A., at pp. 427-28, leave to appeal refused,[1998] 3 S.C.R. vi. [3] We are all of the view that Justice Tremblay-Lamer had no grounds to interfere with the Prothonotary’s order who was hereappointed as a Referee by the Chief Justice of the Federal Court for the purpose of quantifying the profits realized by the respondentsas a result of a finding of copyright infringement made against them by Justice Harrington of the Federal Court (2011 FC 14, aff'd 2012FCA 12). [4] Justice Tremblay-Lamer justified her intervention on the statement made by the respondents that they had alreadysatisfactorily answered the questions.

Moreover, the Judge found that the matter should be brought to a conclusion forthwith in view ofthe limited financial scope of the debate and the extent of resources allocated to this litigation. None of the reasons given by the Judgecould justify her intervention on the basis of the applicable standard of review. There was no basis on which the Judge could proceed ona de novo basis. [5] If, as decided by the Judge, the questions ordered answered had in effect been answered by the respondents, there was nobasis for allowing the appeal and quashing the Prothonotary's order.

At best, the respondents' submission to her rendered their ownappeal moot and such appeal should have consequently been dismissed. [6] As a result, this appeal will be allowed and the order of the Federal Court will be set aside. This is not a case for costs andconsequently the parties will assume their own costs throughout.

Moreover, in view of the nature of this appeal, the fact that therespondents are now represented by counsel who has provided documents to counsel for the appellant since the Prothonotary’s order, thematter is sent back to Prothonotary Milczynski for new determination on the questions still at issue. These questions are numbered atparagraphs 4, 5, 6, 7 and 10 of her October 29, 2012 order. "Johanne Trudel" J.A.

FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-156-13 (APPEAL FROM AN ORDER OF JUSTICE TREMBLAY-LAMER OF THE FEDERAL COURT, DATED APRIL 24, 2013, DOCKET NO. T-514-10) STYLE OF CAUSE: HIS HIGHNESS PRINCE KARIM AGA KHAN v. NAGIB TAJDIN, ALNAZ JIWA, JOHN DOE AND DOE CO. ET AL PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: January 15, 2014 REASONS FOR JUDGMENT OF THE COURT BY: GAUTHIER J.A. TRUDEL J.A. MAINVILLE J.A. DELIVERED FROM THE BENCH BY: TRUDEL J.A. APPEARANCES : Brian W.

Gray Andres Garin For The APPELLANT Jean-Philippe Gervais For The RespondentS SOLICITORS OF RECORD : Norton Rose Fulbright Canada LLP Toronto, Ontario For The APPELLANT Jean-Philippe Gervais Montréal, Quebec For The RespondentS