Tejani v. Nintendo of America Inc.

The appeal is dismissed because the Motions Judge's credibility-based factual findings and application of the established legal test for Anton Piller orders were not clearly wrong, and therefore the grant and execution of the orders were upheld.

Source-derived case information.

Citation: 2001 FCA 395
Parties: Appellant: Alnashir Tejani; Appellant: Ghanwa Elmerhebi; Appellant: Global Fashion & Toys Ltd.; Appellant: Toys in Motion; Appellant: Bathroom City Enterprises Ltd.; Respondent: Nintendo of America Inc.; Respondent: Nintendo of Canada Ltd.; Respondent: The Walt Disney Company; Respondent: Viacom Ha! Holding Company; Respondent: Time Warner Entertainment Company, L.P.
Court: Federal Court of Appeal
Jurisdiction: Canada
Judgment Date: 14 December 2001
Procedural Posture: Civil Appeal / Appeal Judgment Reviewing Motions Judge Order
Outcome: appeal dismissed
Legal Topics: Anton Piller Orders, Interim Relief, Credibility Findings, Costs
Source Language: en

Civil Procedure Intellectual Property Remedies Anton Piller Orders Interim Relief Credibility Findings Costs

Source-derived case record

Summary, issues, holding and outcome

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Legal principles 2 Authorities cited 3 Party arguments 2 Amounts and remedies 2

Parties

Alnashir Tejani

Appellant

Ghanwa Elmerhebi

Appellant

Global Fashion & Toys Ltd.

Appellant

Toys in Motion

Appellant

Bathroom City Enterprises Ltd.

Appellant

Nintendo of America Inc.

Respondent

Nintendo of Canada Ltd.

Respondent

The Walt Disney Company

Respondent

Viacom Ha! Holding Company

Respondent

Time Warner Entertainment Company, L.P.

Respondent

Procedural Posture

Civil Appeal / Appeal Judgment Reviewing Motions Judge Order

Legal Issues

1 Whether the Motions Judge erred in granting and executing Anton Piller orders
2 Whether the Motions Judge's factual and credibility findings were clearly wrong
3 Whether the legal test from Adobe Systems v. KLJ was properly applied

Ratio Decidendi

Court Disposition

appeal dismissed

Orders

Appeal dismissed
Party and party costs of $15,000.00 plus disbursements of $3,000.00 payable forthwith

Full Case Text

Judgment text and source record

1 paragraphs

Tejani v. Nintendo of America Inc. Court (s) Database Federal Court of Appeal Decisions Date 2001-12-14 Neutral citation 2001 FCA 395 File numbers A-251-00 Decision Content Date: 20011214 Docket: A-251-00 Neutral citation: 2001 FCA 395 CORAM: ROTHSTEIN J.A. NOËL J.A. MALONE J.A. BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and NINTENDO OF AMERICA INC. and NINTENDO OF CANADA LTD. Respondents and BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and THE WALT DISNEY COMPANY AND OTHERS Respondents BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and TIME WARNER ENTERTAINMENT COMPANY, L.P. Respondent BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and VIACOM HA; HOLDING COMPANY AND OTHERS Respondents Heard at Vancouver, British Columbia, on December 13, 2001. Judgment delivered at Vancouver, British Columbia, on December14, 2001. REASONS FOR JUDGMENT BY: MALONE J.A. CONCURRED IN BY: ROTHSTEIN J.A. NOËL J.A. Date: 20011214 Docket: A-251-00 Neutral citation: 2001 FCA 395 CORAM: ROTHSTEIN J.A. NOËL J.A. MALONE J.A. BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and NINTENDO OF AMERICA INC. and NINTENDO OF CANADA LTD. Respondents and BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and THE WALT DISNEY COMPANY AND OTHERS Respondents and BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and TIME WARNER ENTERTAINMENT COMPANY, L.P. Respondent and BETWEEN: ALNASHIR TEJANI, GHANWA ELMERHEBI, GLOBAL FASHION & TOYS LTD., TOYS IN MOTION and BATHROOM CITY ENTERPRISES LTD. Appellants and VIACOM HA! HOLDING COMPANY AND OTHERS Respondents REASONS FOR JUDGMENT (Delivered from the Bench at Vancouver, Thursday, December 13, 2001) MALONE J.A. [1] We are satisfied that the Motions Judge gave sufficient weight to all the relevant circumstances when on April 14, 2000 she upheld the grant and execution of the four Anton Piller orders now under review. [2] The decision of the Motions Judge was based on her credibility findings and her factual conclusions based on a detailed review of the filed affidavits and cross-examination thereon. While the appellants have suggested that there are certain factual errors in her interpretation of the evidence, we are unable to say that the Motions Judge's conclusions are clearly wrong so as to justify interference by this Court (Stein v. Kathy "K" (1976) 2 S.C.R. 802 at page 806 (S.C.C.)). [3] The Motions Judge's legal analysis followed the test for the issuance of Anton Piller orders as established by Richard A.C.J. (as he then was) in Adobe Systems Inc. v. KLJ Computer Solutions Inc. [1999] 3 F.C. 621. We have been unable to discern any error in the application of the legal principles therein to the facts of this case as determined by the Motions Judge. [4] We would dismiss the appeal with lump sum party and party costs of $15,000.00 plus disbursements of $3,000.00 payable forthwith. The respondents are to apportion the costs and disbursements among themselves in accordance with their oral representations in open court. (Sgd.) "B. Malone" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-251-00 STYLE OF CAUSE: Alnashir Tejani et al. v. Nintendo of America and others PLACE OF HEARING: Vancouver, BC DATE OF HEARING: December 13, 2001 REASONS FOR JUDGMENT : MALONE J.A. CONCURRED IN BY: ROTHSTEIN, NOËL JJ.A. DATED: December 14, 2001 APPEARANCES: Alnashir Tejani and Ghanwa Elmerhebi ON THEIR OWN BEHALF Keith Bowman FOR THE APPELLANT (Bathroom City Enterprises Ltd.) Georgina Starkman FOR THE RESPONDENT (Walt Disney & Viacom Ha!) Lou Brzezinski FOR THE RESPONDENT (Nintendo) David Wotherspoon FOR THE RESPONDENT (Time Warner) SOLICITORS OF RECORD: Keith Bowman FOR THE APPELLANT Vancouver BC (Bathroom City Enterprises) Kestenberg Siegal Lipkus FOR THE RESPONDENT Toronto ON Walt Disney & Viacom Ha! Blaney McMurty FOR THE RESPONDENT Toronto ON Nintendo Fasken Martineau DuMoulin FOR THE RESPONDENT Vancouver BC Time Warner

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