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2011-05-19 Stay of Order (Motion)

On April 4, 2011, a Motion for Stay had been filed by Defendants
2011-04-21 Defendants file Motion for Stay of the Order
See the article linked above.

On May 3, 2011, the Plaintiff's Counsel filed a response to the Stay motion.

2011-05-03 Plaintiff's Response to the Stay Motion
- It contained no new affidavit
- It attempted to portray the Appeal as frivolous
- It attempted to deny irreparable harm to defendants by claiming that they are lying.
- It claimed in the pleadings that the Aga Khan will safeguard all documents revealed in the reference, but without relying on any evidence/affidavit for this statement.

On May 9, 2011, Defendant Tajdin filed his reply to the Plaintiff's response.

Tajdin's Brief Reply to the Plaintiff's Response
- The reply was brief and mentioned facts and Law that were relevant.
- The reply ignored misrepresentations in the pleadings because, as they were not based on any evidence, they were unsubstantiated.

On May 19, 2011, Justice Mainville Gave an Order

2011-05-19 Order of Justice Mainville
2011-05-19 Reasons for the Order
- Justice Mainville did not recognize the Plaintiff's argument that the Appeal is frivolous.
- The Judge dwelled on the issue of irreparable harm, and decided to take the Plaintiff's pleadings as an undertaking from the Aga Khan that any documents would be protected.
- The Judge also put the onus on the Referee to limit the documents needed to the essential ones.
- The Judge believed the Plaintiff's misrepresentation about Tajdin lying about his travels, when there was no corroborating evidence.

On May 24, 2011, Tajdin wrote to Justice Mainville requesting a review

2011-05-24 Letter by Tajdin requesting a review
Re: A-59-11 Federal Court of Appeal
Judgment dated May 19, 2011

Dear Sirs:

Please bring this to the attention of Justice Mainville.

I am the main appellant in this appeal. I am self-represented and residing in Kenya. I am
writing in regards of the Judgment with respect to two specific orders.

It was my understanding that the court would not consider matters that are not in
evidence, and therefore I did not respond to the claims and false assumptions that were
only in counsel's pleadings and not in evidence.

I respectfully ask for reconsideration of the Stay on:
- The order with respect to submitting documents; and
- The order with respect to quantum of damages.

The following court's assumptions are based only on the pleadings and are not backed
by any facts:

a) That Tajdin lied about travels and would not suffer irreparable harm

- As I said in my affidavit [at para 64], I moved to Africa in late 2005. I then started
my business in 2006. The dates in the Golden Edition Index submitted in the Plaintiff's
evidence show that my longer travels to collect Farmans occurred when I resided in
Canada, and before I moved to Africa (India 1988, France 1989 and 2002, Tajikistan
2003, Pakistan 1981, 1988, 2000 and 2003, Syria 2001, USA 2002, Afghanistan 2003-
2004, Dubai 2004-2005.). Any travels I made to collect Farmans after I moved to Kenya
were mostly weekend trips - Madagascar (1 day in 2008), Uganda (1 day in 2007),
Tanzania (2 days in 2007), Ivory Coast (3 days 2008) and UK (3 days 2007)

- As I said in my affidavit for this Motion [paras 64-68], the reconstitution of records
based on old documents that span decades and that may or may not be found will
indeed be time consuming. Any lengthier current travel would require advance
preparation and incur tangible loss of business and customers, as well as rampant
security risks for my family and theft risks for my business. During three of the four trips
I made to Canada for this lawsuit last year (May, August, October, December 2011), I
had to close my bakery. I lost my customer base each time I tried to restart, and
because of those trips my business suffered extreme losses.

- As I said in my affidavit for this Motion [at paras 79, 80], avoidable appearances
for court procedures in Canada are also an unnecessary security risk. There are, on
record, multiple death threats against me on the Internet. All of these threats originate
from Canada, as can be seen from the IP number identified for those postings on the
Internet. These threats are real; for example, four people traveled from Toronto to
Ottawa on a “holy war” to assault me on Spark Street immediately after a hearing on the
same subject matter on 13 October 2010. One of these people, known by the name of
Mehboob Kamadia, even gave his business card to Counsel for Plaintiff in my presence
inside the courtroom at the end of that hearing.

b) That without his documents Tajdin will be like other Ismailis and would get
"Authorized" Farmans

- There is no evidence that other Ismailis actually get access to "authorized
Farmans" from any institutions for study. The record does show that it is the Ismailis'
duty to study Farmans and to apply them in their everyday lives. As I said in my affidavit
[at para 44 and 85], cross examination of Sachedina on record also shows that over
80% of Ismailis have NO access to Jamatkhanas or to Farmans from institutions.

- The record also shows that Institutions have not published any Farmans or
provided any Farmans to Ismailis for personal study in around 35 years. The record also
shows that Ismailis fulfill their duty by collecting and keeping personal collections of
Farmans in various countries and various languages from other sources. This has
helped keep Ismailism alive. I am only one of the many Ismailis who are currently
compiling, publishing and circulating compilations of Farmans, though I may be the one
with the most extensive collection.

- As I said in my affidavit for this Motion [at paras 11,29, 84, 86, 89], the record
shows that the Aga Khan's word in a Farman is a final order to Ismailis, and that He has
made Farmans that encourage individual Ismailis to study and share His Guidance, and
to listen to it at their leisure. There has never been any Farman of the Aga Khan to
Ismailis limiting them to obtaining Farmans only from the institutional sources nor any
process truly approved by the Aga Khan since 1986 in this regards. So depriving Tajdin
of his personal collection does indeed put him at a disadvantage in comparison to other
Ismailis.

c) That The Aga Khan will protect documents

- There is no direct evidence whatsoever from the Aga Khan on this subject, and
the record does show that Mr Sachedina is in fact liaising with Mr Gray, counsel for the
Plaintiff.

- As I said in my affidavit for this Motion [at paras 10, 44], the record also shows
that Sachedina has access to all correspondence to and from the Aga Khan's
Secretariat, and that he has vowed to ruin Tajdin in the eyes of the worldwide Ismaili
community well before the lawsuit was started.

- There is therefore no assurance that this part of the order will be followed.
I therefore respectfully request the Court to review and re-consider the decision in so far
as these two serious issues are concerned: remitting my personal copy of the
documents used to print the book and the travels for the alleged damage/profit quantum
calculation.

Respectfully yours,
_______________
Nagib Tajdin.
CC: Alnaz Jiwa
CC: Brian Gray

On May 31, Justice mainville refused a review

2011-05-31 Order refusing a Review
Justice Mainville simply referred to the Federal court rule that said that a review should have been requested by motion within 10 days of the original order and not by letter. This order came after the 10 days elapsed.

.....

All Comments on the case

AttachmentSize
2011-05-03-ResponseToStayMotion-BySolicitorsForPlaintiff.pdf824.03 KB
2011-05-25-Defendants Response - NT-filed.pdf221.79 KB
20110519-A-59-11 - A-60-11 Order-Stay-Refused.pdf53.64 KB
20110519-A-59-11 - A-60-11 Reasons-Stay-Refused.pdf83.34 KB
2011-05-24-Letter-to-Judge-Maiville-Order-Stay-v9-sent.pdf29.29 KB
20110531- A-59-11_ReviewRefused.pdf51.07 KB


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