In a new ruling, the Federal Court of Appeal dismissed Alnaz Jiwa’s challenge of a Federal Court ruling that granted summary judgment in favour of the Aga Khan last year. Jiwa appealed the ruling along with Montreal businessman Nagib Tajdin.
The dispute centred on Jiwa and Tajdin’s reprintings of the Ismaili spiritual leader’s religious teachings (see “Lawyer sued by Aga Khan keeping the faith”). They claimed the Aga Khan consented to the publications during a ceremony in Montreal in 1992. The Aga Khan disagreed with that interpretation, and ultimately Federal Court Justice Sean Harrington declared that the pair had infringed the spiritual leader’s copyright and granted a permanent injunction precluding the publication of the book Farmans 1957-2009 as well as accompanying MP3 audio bookmarks.
The pair claimed Harrington made 19 errors by, among other things, failing to properly apply the test to determine whether there was a genuine issue for trial and proceeding as though he were the trial judge; relying on inadmissible hearsay evidence; drawing inferences without the necessary facts; and concluding that the Aga Khan never consented to the publication.
The consent issue boiled down largely to the events in 1992 at which a third person, Karim Alibhay, presented the book on a plate to the Aga Khan. Tajdin, according to the ruling, took that exchange as consent to the publication. But as Federal Court of Appeal Justice Johanne Gauthier noted in the latest ruling, the book presented to the Aga Khan didn’t indicate who had printed it. At the same time, there was no evidence that the spiritual leader knew Alibhay was acting on Jiwa and Tajdin’s behalf.
“There is no evidence that the Aga Khan knew or ought to have known that this book was not simply a compilation printed for the personal use of the Alibhay family, of which three members were presented to the Aga Khan,” Gauthier concluded.
In addition, Gauthier, writing on behalf of a unanimous court, rejected the appellants’ claims related to the defence of laches/detrimental reliance. As a result, the court dismissed the appeal with costs.