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2012-05-14 Refusals Hearing in Copyright Lawsuit

As reported to us by an observer who attended the hearing (Hearings are open to the public)

From the Docket, we can see that "Oral directions received from the Court: Martha Milczynski, Prothonotary dated 25-APR-2012 directing that "Upon the commencement of the hearing of the Plaintiff's motion held April 24, 2012, and hearing the submissions of the parties, the hearing of the Plaintiff's motion shall continue at 10:00 on May 14, 2012 upon the Plaintiff delivering a revised undertakings and refusals chart by Friday, April 27, 2012 and the Defendants serving and filing their responses by May 10, 2012. The motion filed by the Defendant, Nagib Tajdin and that of the Defendant, Alnaz Jiwa, shall be held in abeyance pending the disposition of Plaintiff's refusals motion."

What this means is that Gray's Motion is heard first. The Referee is temporarily suspending the hearing of both the replies of Tajdin and of Jiwa. Tajdin asked for a Stay of the Motion up to the time the matter in Appeal is heard. The matter in appeal ask the Court to appoint a new referee or to set guidelines for the present Referee.

In his Cross-Motion which was not heard Tajdin was asking for an Order as follow:

(i) for Staying the Reference pending decision of the Appeal on Justice Russel's Order dated October 26th, 2011 and on Docket number A_421_11;

(ii) an Order of Confidentiality and an Order that an independent agent be appointed to investigate the printing of the books and to report to the named plaintiff's counsel, the court and confirm how many books were published by this defendant and how much was the cost of the publication, costs of which to be paid by Tajdin; and

(iii) an Order to restrict the remaining reference to strictly financial analysis to the specific exclusion of the names of people who bought the books.

Tajdin had also asked that the Referee tells Brian Gray, the copyright lawyer from Norton Rose, to keep all information confidential from Sachedina and Manji who according to him are directing Gray. Tajdin said that in his opinion Gray had difficulties understanding the meaning of "deemed undertaking" as he was not keeping confidential any information. The Referee told Tajdin that he was making serious allegations but tajdin stood by what he said.

In his replying Affidavit, Tajdin had made serious allegation of misconduct against Brian Gray, the copyright lawyer of Norton Rose with several Exhibits attached to his affidavit.

Alnaz had asked dismissal of Gray's motion because he was not asking to deduct any expenses or buying cost and was willing to pay all of his revenues as profit to the Imam.

Alnaz' Motion was not heard, Tajdin's cross-motion was not heard. Only Gray's Motion was heard.

On 14th May the hearing of Gray's Motion was completed and Prothonotary Milczynski, the Referee said to Gray that as she had not taken any notes, Gray should prepare for her a draft order.

Gray had said he will not be asking any documents for expenses that are not claimed against revenues by the Defendants and therefore Tajdin gave in the unredacted confirmation from the printing press on the cost and number of books printed. But as usual, Gray was not dealing in good faith. As soon as he got the unredacted printing information, he asked for more, for all the names of Ismailis who bought the Golden Edition through the goldenkiz email account and on the Paypall list, bank statements etc... all this knowing that the Referee has not read the Affidavit of Tajdin, his cross-motion, and Alnaz Jiwa's Motion for Summary Judgment.

Alnaz had proposed to give all of the potential revenue that would be generated if he has sold all the 96 books and had received them free. he did not claim any deduction for his purchase expenses nor for the free books he gave to Itreb (18 books) and the free books given to family and friends.

Alnaz was ordered to give all of the unredacted emails and all the names of those to whom he gave or sold books. All this after His Highness had confirmed since 15 October 2010 that he knew that Alnaz was not involved in publication with Nagib.

In the past Tajdin has proposed to Gray to say how much he wanted him to pay to the Imam and Tajdin would double the amount and pay because paying any amount to the Imam was not an issue. But Gray refused. reference is only for monetary issues so what exactly were the instructions received by Gray from Manji and Sachedina? .

It looks like the purpose of the Reference is not anymore to seek profit but has gone through a metamorphosis and is now aimed at continuing harassing the Defendants and all those who supported the Farman book.

Justice Harrington in his Judgment never allowed this but Gray under Sachedina's instruction has hijacked the reference process and tried to turn it into a sweet vendetta. Basically, Justice Russell had wrongly assumed that the Referee will protect the Defendants from Gray's abuse of the Court System.

At some point on 14th May 2012, though, mid-way during the hearing, the Referee told Gray that these were small amounts left and she could give us a mediator to finish the reference but Gray said no, he did not accept a mediator. His clients ("s") had asked him to go to the bottom of it. She did not pursue this avenue but said she may come back with this proposal later.

And obviously the first thing Gray may have done is to share the confidential information with Manji and Sachedina.

The Appeal is now compromised as it looks like it may not be that useful in that the Referee pushed for the hearing of that which was already the subject matter of the Appeal and for which she was clearly in conflict of interests to hear the matter. At her credit, one should say that she ordered that the documents could remain redacted up to the time the Appeal is decided.

Gray convinced everyone that for once he was going to act ethically, so he got the unredacted printing information from Tajdin. But immediately after getting his hands on the documents, he changed his mind and said that he wants now to get names and other info, therefore continuing harassing the defendants and needlessly prolonging this reference.

To be followed...

Motions, Affidavits and Refusals and Undertakings lists are linked below.

Plaintiff_s_Notice_of_Motion_Re__Refusals_pdf.PDF3.2 MB
2012-04-23-Affidavit-nagib-tajdin-T-514-10.pdf412.66 KB
2012-05-09-answers-undertakings-alnaz.pdf21.25 KB
2012-05-09-reply-alnaz-jiwa-refusals.pdf38.09 KB
2011-09-16-Nagib-Affidavit.pdf393.92 KB
Responding Affidavit.pdf685.26 KB
2012-04-24cross-motion.pdf3.23 MB
Exhibit 1.pdf29.76 KB
Exhibit 2.pdf90.04 KB
Exhibit 3.pdf465.77 KB
Exhibit 4.pdf89.25 KB
Exhibit 5.pdf93.06 KB
Exhibit 6.pdf38.11 KB
Exhibit 7.pdf62.44 KB
Exhibit 8.pdf221.44 KB
Exhibit 9.pdf75.08 KB
Exhibit 10.pdf426.37 KB
Exhibit 11.pdf159.13 KB
Exhibit 12.pdf58.84 KB
Exhibit 13.pdf71.53 KB

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