T-2053-85
Apple Computer Inc. (Plaintiff)
v.
Minitronics of Canada Limited, carrying on busi
ness as Minitronics Computers Centres, Angel Li
Lam, Jan Edmond, O.S. Micro Systems Inc.,
Lami Yee Lam, David Kuo Tai Wang, Jack Liu,
Trident Technology Inc., carrying on business as
Trident, Wai Lin Eng, Pacific Rim Electronics
Imports Inc., carrying on business as Pacific Rim
Electronics Inc., Stan Kozdrowski, Stanley G.
Kozdrowski, Gentek Marketing Inc., carrying on
business as Gentek Computers Inc. and as Gentek
Computers, Mitchell Freedman, Jeff Freedman,
Brian Mintz, 546665 Ontario Limited, carrying
on business as Viva Computers, Pulse Computers
Inc., Pulse, Pulse Computers, Ordinateur Micro-
com Computers, Key Creative Consultants: Rich-
ard Douglas Williams, Mary Edythe Baker, K.
Scott Baker, Ron Wicksey, Martin P. Kane,
carrying on business as Compusound Systems of
Canada, Metropolitan Separate School Board
(Defendants)
INDEXED AS: APPLE COMPUTER, INC. V. MINITRONICS OF
CANADA LTD.
Trial Division, Strayer J.—Vancouver, October 27
to 30 and November 2 to 6, 1987; Ottawa, Janu-
ary 12, 1988.
Practice — Contempt of court — Interim and interlocutory
injunctions issued against defendants to restrain infringement
of plaintiff's copyright and trademark in Apple Ile computer
programmes — Enjoined parties' knowledge of order — Under
R. 355, contempt may be found where contemnor made aware
of order even if not served with copy — In view of counsel's
responsibility to Court, knowledge of order by lawyer for party
in Federal Court civil matter sufficient for subsequent pros
ecution of client for contempt.
Constitutional law — Charter of Rights — Enforcement
Show cause motion in contempt of court proceedings for
breach of court order in copyright infringement action
Admissibility of documents obtained indirectly as result of
Anton Piller order — Neither Charter nor Bill of Rights
violated in obtaining documents — Even if Charter violated,
inappropriate to invoke 'fruit of forbidden tree" to refuse to
admit evidence under Charter s. 24(2).
In an action for copyright and trademark infringement, the
plaintiff obtained first an interim, then an interlocutory injunc
tion to prevent the defendants from carrying on infringing
activities pending trial. Pursuant to an Anton Piller order
issued in another action commenced by the plaintiff Apple
against many of the same defendants concerning essentially the
same subject-matters, the plaintiff was authorized to search
certain premises of the defendants to gather evidence. Evidence
of breaches of the earlier injunctions was found.
This is a proceeding under Rule 355 by which the defendants
were required by a show cause order to appear and to demon
strate why they should not be condemned for contempt of court
for breach of the injunctions or for interfering with the orderly
administration of justice and impairing the authority or dignity
of the Court.
The defendants argue that they did not have adequate notice
of the injunctions, that the injunctions were unclear or ambig
uous, and that the activities in which they engaged did not
violate the actual terms of the injunction.
Held, certain of the defendants are guilty of contempt of
Court.
The present proceedings are under Rule 355, dealing with
contempt of court generally. Since this procedure is an alterna
tive to committal under Rule 2500, the requirement that a copy
of the order allegedly violated be personally served on the
defendants under Rules 1903 and 1905 does not apply. There
can be contempt for breach of order of the Court where the
contemnor has been made aware of the order even if not served
with a copy of it. In the present case, the respondents must have
known of these orders, both because of the conduct of their
counsel in the proceedings and from evidence of their own
conduct. Here, it is inconceivable that counsel launched an
appeal from one order and subsequently consented to another
order without ever having any instructions from his clients.
Otherwise, it might be appropriate to consider responsibility of
counsel vis-Ã -vis the orderly administration of justice and the
impairment of the authority of the Court. And in the case of
Bhatnager, the Federal Court of Appeal held that knowledge of
the order by, or proof of its service on, the lawyer for a party in
a civil matter in the Federal Court is sufficient to fix that party
with knowledge of the order for the purposes of a subsequent
prosecution for contempt of court.
The individual defendants Lam, Liu and Wu and the two
corporations they control, O.S. Micro Systems Inc. and Comtex
Micro System Inc., are guilty of contempt for having acted in
such a way as to interfere with the orderly administration of
justice and to impair the authority or dignity of the Court and
to render nugatory an injunction or order of this Court. The
respondents against whom the injunctions were issued—OS.
Micro Systems Inc., Lam and Liu—are also guilty of contempt
for having disobeyed an injunction issued against them.
Although the injunctions erroneously substituted a "4" for a
"3" at the beginning of the relevant registration number, that
was not fatal to the plaintiff's allegation of copyright infringe
ment. In Baxter Travenol Laboratories of Canada Ltd. et al. v.
Cutter (Canada), Ltd., the Supreme Court of Canada over
looked a similar error, an erroneous description of the plaintiff,
saying that it was a clerical mistake only which could not have
misled the defendant.
There was some question as to what constituted the "record"
for the purposes of this motion under Rule 319(2). The
"record" on a show cause motion includes those elements of the
file relevant to the issues before the court for determination,
and documents on the court file, such as an admission of service
by the solicitor of record, may be assumed to be what they
purport to be unless proven to the contrary.
Problems with respect to the presentation of expert testimony
suggest that in cases of this nature, consideration should be
given in advance to the possibility of an order under Rule 327
directing the trial of such issues with directions concerning
pre-trial procedure and the conduct of the trial.
Certain documents obtained indirectly as a result of the
Anton Piller order are admissible. In the present case, the order
had already been given and the defendants had not moved to
set it aside or appeal it in the following six months. The
material obtained by it directly and indirectly was now before
the Court. This was not a "search or seizure" in the meaning of
section 8 of the Charter and in any event it was carried out
pursuant to a court order and in a reasonable way. Even if
there had been a violation of the Charter, this would not be an
appropriate case to apply subsection 24(2) of the Charter so as
to deny admission of the evidence as "fruit of the forbidden
tree". Admission of the evidence would not bring the adminis
tration of justice into disrepute.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix II, s.
2(d).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.), ss. 8, 11(c), 13, 24.
Criminal Code, R.S.C. 1970, c. C-34.
Federal Court Rules, C.R.C., c. 663, RR. 319(1),(2),
355, 482, 1903, 1905, 2500.
Industrial Design Act, R.S.C. 1970, c. I-8.
Trade Marks Act, R.S.C. 1970, c. T-10, ss. 2, 4, 6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bhatnager v. Canada (Minister of Employment and
Immigration), [1988] 1 F.C. 171 (C.A.), reversing
[1986] 2 F.C. 3 (T.D.); Baxter Travenol Laboratories of
Canada Ltd. et al. v. Cutter (Canada), Ltd., [1983] 2
S.C.R. 388; 75 C.P.R. (2d) 1; Regina v. Altseimer
(1982), 38 O.R. (2d) 783 (C.A.).
DISTINGUISHED:
Clairol International Corp. et al v. Thomas Supply &
Equipment Co. Ltd. et al, [1968] 2 Ex.C.R. 552; 38 Fox
Pat. C. 176; Bombardier Ltd. v. British Petroleum Co.
Ltd., [1973] F.C. 480; 10 C.P.R. (2d) 21 (C.A.); Rank
Film Distributors Ltd v Video Information Centre,
[1981] 2 All ER 76 (H.L.); Amway of Canada Ltd. v.
Canada, [1987] 2 F.C. 524; (1986), 34 D.L.R. (4th) 201
(C.A.), leave to appeal refused: [1987] 2 S.C.R. v.
CONSIDERED:
Selection Testing Consultations International Ltd. v.
Humanex International Inc., [1987] 2 F.C. 405; (1987),
9 F.T.R. 72 (T.D.); Baxter Travenol Laboratories of
Canada, Limited v. Cutter (Canada), Ltd., [1986] 1 F.C.
497; (1984), 1 C.P.R. (3d) 433 (T.D.).
REFERRED TO:
Beloit Canada Ltée/Ltd. et al. v. Valmet Oy (1986), 11
C.P.R. (3d) 470 (F.C.T.D.); Moose Mountain Lumber
and Hardware Co. v. Paradis (1910), 14 W.L.R. 20
(Sask. S.C. (full Court)); Churchman v Joint Shop
Stewards' Committee of the Workers of the Port of
London, [1972] 3 All ER 603 (C.A.); Glazer v. Union
Contractors Ltd. & Thornton (1960), 129 Can. C.C. 150
(B.C.C.A.); Canada Metal Co. Ltd. et al. v. Canadian
Broadcasting Corp. et al. (No. 2) (1974), 48 D.L.R. (3d)
641 (Ont. H.C.), affirmed (1975), 11 O.R. (2d) 167
(C.A.); Apple Computer, Inc. v. Mackintosh Computers
Ltd., [ 1987] 3 F.C. 452; 14 C.P.R. (3d) 1 (T.D.); Baylin-
er Marine Corp. v. Dorai Boats Ltd., [1986] 3 F.C. 421;
10 C.P.R. (3d) 289 (C.A.); Oshawa Group Ltd. v. Crea
tive Resources Co. Ltd. (1982), 61 C.P.R. (2d) 29
(F.C.A.); Leaf Confections Ltd. v. Maple Leaf Gardens
Ltd. (1986), 12 C.P.R. (3d) 511 (F.C.T.D.); Ziegler v.
Hunter, [1984] 2 F.C. 608; (1983), 81 C.P.R. (2d) 1
(C.A.); Thomson Newspapers Ltd. et al. v. Director of
Investigation & Research et al. (1986), 34 D.L.R. (4th)
413 (Ont. C.A.); Rex v. Steinberg, [1931] O.R. 222
(App. Div.), confirmed [1931] S.C.R. 421; R. v. Mac-
Leod, [1968] 2 C.C.C. 365 (P.E.I.S.C.); Pratte v. Maher
and The Queen, [1965] 1 C.C.C. 77 (Que. Q.B.); Re
Tilco Plastics Ltd. v. Skurjat et al., [1967] 1 C.C.C. 131
(Ont. H.C.); Corbett v. The Queen, [1975] 2 S.C.R. 275;
(1973), 42 D.L.R. (3d) 142.
AUTHORS CITED
Borrie, Sir Gordon and Lowe, Nigel Borrie and Lowe's
Law of Contempt, 2nd ed. London: Butterworths, 1983.
Miller, C.J. Contempt of Court, London: Elek Books
Limited, 1976.
COUNSEL:
Ivor M. Hughes, Joseph I. Etigson and
Alfred S. Schorr for plaintiff.
Gerald K. Martin for Minitronics of Canada
Limited and Angel Li Lam.
D. A. Zack and R. H. C. MacFarlane for
0.S. Micro Systems Inc. etc. and Pacific Rim
Electronics Imports Inc.
SOLICITORS:
Ivor M. Hughes, Concord, Ontario, for
plaintiff.
Fitzsimmons, MacFarlane, Toronto, for
Minitronics of Canada Limited, O.S. Micro
Systems Inc. etc. and Pacific Rim Electronics
Imports Inc.
Day, Wilson, Campbell, Toronto, for Met
ropolitan Separate School Board.
Peirce, McNeely, Associates, Toronto, for
546665 Ontario Limited.
Henry, Brown, Green & Siegel, Toronto, for
Gentek Marketing Inc.
The following are the reasons for order ren
dered in English by
STRAYER J.: This is a proceeding under Rule
355 [Federal Court Rules, C.RC., c. 663] by
which the respondents [defendants] were required
by a show cause order to appear to hear proof
against them with respect to an alleged contempt
of court and to offer any defence that they might
have. The respondents named in the show cause
order include some of the defendants in the within
action, and another person and other companies
who are not defendants in that action. Those
respondents who are defendants are O.S. Micro
Systems Inc., Lami Lam, Jack Liu, Angel Li Lam
and Minitronics of Canada Limited. The respond
ents who are not parties to this action include
Comtex Micro System Inc., Jack Wu, Comtex
Imports Co. Ltd., Concord Trading Ltd., and Our
Star International Trading Co. Ltd. Concord
Trading Ltd. was not represented before me and it
was agreed on all sides that the British Columbia
company which officially bears this name has
nothing to do with this case, although it appears
that some of the defendants have used the same
name for the purposes of their business. No order
will be made against Concord.
At the beginning of the show cause hearing
counsel appeared for Minitronics of Canada Lim
ited and Angel Li Lam and advised me that his
clients pleaded guilty to the allegations of con
tempt of court. A letter was submitted to the
Court from Angel Li Lam for himself and on
behalf of Minitronics, of which he is an officer and
director, admitting to certain breaches of an
injunction issued by this Court on November 14,
1985. He admitted to being aware of the injunc
tion and that his actions constituted possible
breaches of the injunction. He accepted responsi
bility for his actions and apologized without reser
vation to the Court and to the plaintiff. After
hearing argument on the subject I reserved my
decision with respect to the appropriate punish
ment and with respect to costs in relation to these
two respondents. As will be noted below, I will
continue to reserve my decisions on these matters
pending certain other developments.
History of the Litigation
A statement of claim was filed in this action on
September 25, 1985. In it the plaintiff (the appli
cant in this motion) alleged that the various
defendants were engaged in importing, assembling,
distributing, selling, etc., and—in the case of one
defendant—purchasing, certain computers. They
were alleged to infringe the plaintiff's rights
because, inter alia: the said computers allegedly
incorporated programs of the plaintiff which are
the subject of copyright; such computers use the
design of the case of the plaintiff's computer and
thus infringe an unregistered copyright of the
plaintiff in the drawings thereof; and such comput
ers bear symbols which are confusing with the
plaintiffs logo, thus infringing the plaintiffs trade
mark.
The plaintiff then applied for an interim inter
locutory injunction against the defendants to pre
vent them from carrying on such activity pending
trial. This application was argued before Walsh J.
on October 29, 1985 and several of the defendants,
including O.S. Micro Systems Inc., Lami Yee
Lam, and Jack Liu were represented by counsel.
On November 14, 1985 [(1985), 7 C.P.R. (3d)
104], Walsh J. issued an interim injunction, to
continue until final disposition of the plaintiff's
application for an interlocutory injunction, prohib
iting the defendants from:
(a) importing, distributing, assembling, manufacturing, adver
tising, offering for sale, demonstrating and selling computers
and computer components,
i) which contain a copy or substantial copy of the literary
works Apple Ile Programme, and Enhanced Apple IIe Pro
gramme, being the Plaintiffs copyrighted works which are
the subject matter of Canadian Copyright Registrations
444,381 and 444,382 respectively, or alternatively,
ii) which contain contrivances by means of which the said
copyrighted works may be mechanically performed or
delivered.
(b) importing, distributing assembling, manufacturing, adver
tising, offering for sale, demonstrating and selling computers
which apear to be or in fact are copies in three dimensions of
the Plaintiffs two dimensional drawings and plans for the cases
of its Apple II, Apple Ile, and Enhanced Apple IIe computers
or a substantial part thereof.
(c) importing, distributing, assembling, manufacturing, adver
tising, offering for sale, demonstrating and selling computers
having applied thereto a trade mark which is confusing with the
trade mark "Apple Logo and Design" forming the subject
matter of Canadian Trade Mark Registration 264,154; ...
According to the Court file, the registry sent a
copy of this order to Robert MacFarlane, counsel
for, inter alia, Minitronics, Angel Li Lam, 0.S.
Micro Systems Inc., Lami Yee Lam, and Jack Liu,
by registered mail on November 15, 1985. Also
there is on file a copy of the order with an
acknowledgement of its service on Mr. MacFar-
lane dated December 2, 1985. (While Mr. Mac-
Farlane at the hearing protested that this acknowl
edgement was given solely by his secretary, it was
made in the name of his firm who were the
solicitors of record and I believe must be viewed as
a proper admission of service in the absence of
proof to the contrary).
Certain of the defendants, including O.S. Micro
Systems Inc., Lami Yee Lam, and Jack Liu
appealed that order. They were represented by Mr.
MacFarlane. On November 29, 1985 the Federal
Court of Appeal [(1985), 8 C.P.R. (3d) 431]
dismissed the appeal. Subsequently, on April 21,
1986 Giles A.S.P. continued an interlocutory
injunction in the same terms, until trial or other
disposition of this action, against, inter alla, the
defendants who are respondents in the present
proceedings. I was advised by counsel that the
injunction in these terms was continued with the
consent of counsel for the relevant defendants.
On March 26, 1987 Rouleau J., on an ex parte
application by the plaintiff Apple, issued an Anton
Piller order in another action (T-664-87) com
menced by it against certain of the same, plus
other, defendants authorizing the plaintiff to
search certain premises of the defendants to gather
evidence for that other action concerning essen
tially the same subject-matter. It was understood
when the order was granted that this search would
also involve possible evidence of breaches of the
earlier injunction. This order was executed on
March 31, 1987 at the premises of the respondent
Comtex Micro System Inc. in Vancouver. Several
dozen computers and other materials were seized
at that time. Unfortunately, the computers and
other materials so seized, apart from a few docu
ments, were destroyed in a fire at the warehouse of
the Vancouver Sheriff and were thus not available
as evidence at the hearing before me.
On June 15, 1987 the Associate Chief Justice
granted a show cause order under Rule 355 order
ing the respondents named above to appear to
show cause why they should not be condemned for
contempt of this Court for breach of the said
injunctions or for
... acting in such a way as to interfere with the orderly
administration of justice and to impair the authority or dignity
of the Court and to render nugatory any injunction or Order of
this Court.
On June 29, 1987 Teitelbaum J. ordered that this
show cause hearing take place in Vancouver com
mencing October 27, 1987. He also ordered
... that all material, including affidavit evidence in support of
the application will be served and filed not later than the 25th
day of September 1987 and any reply material not later than
the 13th day of October 1987.
No further affidavit material was in fact filed after
that date prior to the hearing. There was a pre-
trial conference before the Associate Chief Justice
in Toronto on September 14, 1987 but no order or
minutes emerged from that conference to guide
the conduct of the hearing. It was apparently
understood that viva voce evidence would be pre
sented at the hearing.
At the hearing before me, the respondents essen
tially relied on the following defences: that they
did not have adequate notice of the injunctions,
that the injunctions were unclear or ambiguous,
and that any importation, assembly, sale, etc. of
computers in which they were engaged did not
violate the actual terms of the injunction.
Knowledge and Responsibility of Respondents
Counsel for the respondents argued that these
proceedings involve the possibility of committal to
prison of the individual respondents. Therefore by
Rules 1903 and 1905 there must be proof that
such respondents were served personally with a
copy of the orders allegedly violated, and that on
such orders there should have been an endorse
ment that if the person served disobeyed the order
he would be liable to "process of execution to
compel him to obey it" as specified in Rule
1905(4). I do not accept this argument. The
present proceedings are under Rule 355 dealing
with contempt of court generally. Rule 355(5)
states that the procedure set out in Rule 355 is an
alternative to committal under Rule 2500. Rules
1903 and 1905 are included in Part VII of the
Federal Court Rules as is Rule 2500 and it
appears to me that the requirements of Rule 1905
with respect to notice relate to a proceeding for
committal under Rule 2500.' In my view this is so
even where the alleged contempt consists of breach
of an injunction and clearly it is so where the
alleged contempt is that of acting so as to interfere
with the orderly administration of justice and to
impair the authority of the Court and to render
nugatory the injunction or order. 2 Courts operat
ing under other rules have indicated that there can
be contempt for breach of an order of the Court
where the contemnor has been made aware of the
order even if not served with a copy of it' and I
believe that is the proper approach to the interpre
tation of Rule 355.
I am satisfied beyond a reasonable doubt that
the respondents here were well aware of the exist
ence of these Court orders even though they were
not served with copies. It is clear that service of
the order is only one method of proof of knowledge
of respondents in a show cause proceeding. 4 In the
present case, I have reached the conclusion that
the respondents must have known of these orders,
both because of the conduct of their counsel in the
proceedings and from evidence of their own
conduct.
' Beloit Canada LtéelLtd. et al. v. Valmet Oy (1986), 11
C.P.R. (3d) 470 (F.C.T.D.), at p. 476. It has been held in this
Court that Rule 2500 cannot be used in cases such as the
present where a finding of contempt has not yet been made:
Selection Testing Consultations International Ltd. v. Humanex
International Inc., [1987] 2 F.C. 405; (1987), 9 F.T.R. 72
(T.D.).
2 See Baxter Travenol Laboratories of Canada, Limited v.
Cutter (Canada), Ltd., [1986] 1 F.C. 497; (1984), I C.P.R.
(3d) 433 (T.D.) where persons were held liable for contempt of
court where they had merely been informed of the existence of
reasons for the issuance of an injunction, with respect to acts
committed even before the injunction was issued: clearly there
was neither service of an order nor notice under Rule 1905
prior to the issue of the order, yet there was liability for
contempt.
3 See, e.g., Moose Mountain Lumber and Hardware Co. v.
Paradis (1910), 14 W.L.R. 20 (Sask. S.C. (full Court)) at pp.
22, 23; Churchman v Joint Shop Stewards' Committee of the
Workers of the Port of London, [ 1972] 3 All ER 603 (C.A.), at
p. 606; Glazer v. Union Contractors Ltd. & Thornton (1960),
129 Can. C.C. 150 (B.C.C.A.); Canada Metal Co. Ltd. et al. v.
Canadian Broadcasting Corp. et al. (No. 2) (1974), 48 D.L.R.
(3d) 641 (Ont. H.C.), aff'd (1975), 11 O.R. (2d) 167 (C.A.).
Miller, Contempt of Court (London, 1976), at p. 243.
With respect to the conduct of counsel, there
can be no doubt that Mr. MacFarlane was aware
of these orders. Having appeared in the first pro
ceeding before Walsh J. for an interim interlocuto
ry injunction, he subsequently acknowledged ser
vice of a copy of the ensuing order. He acted as
counsel for, inter alia, O.S. Micro Systems Inc.,
Lami Yee Lam, and Jack Liu on an appeal from
that order. Subsequently, at the time of the con
tinuation of the interlocutory injunction by Giles
A.S.P., on April 21, 1986, it is common ground
that the continuation was with the consent of
counsel. While it has been held that the mere
knowledge by a lawyer of an order having been
issued against his client is not necessarily sufficient
to establish knowledge by the client for purposes of
contempt, in the circumstances of this case it is
inconceivable that counsel launched an appeal
from one order and subsequently consented to
another order without ever having any instructions
from his clients. Obtaining of such instructions
would clearly involve the clients being aware of the
orders made or to be made against them. I am not
prepared to believe that Mr. MacFarlane would
have acted without instructions from his clients in
these matters. Certainly no evidence was presented
of such an extraordinary situation. Indeed if court
orders were to be subject to frustration by such
failure of communication between solicitor and
client over such a long period of time it could be
necessary, in a proper case, to consider the respon
sibility of counsel vis-Ã -vis the orderly administra
tion of justice and the impairment of the authority
of the Court.' I must conclude then that those of
the present respondents represented by Mr. Mac-
Farlane in the earlier proceedings, namely O.S.
Micro Systems Inc., Lami Yee Lam, and Jack Liu,
were informed not only of the fact of the orders
having been issued but of the details of those
orders.
5 See e.g. Miller, ibid., at p. 226; Borrie and Lowe's Law of
Contempt (London, 1983) at p. 304.
Since the hearing of this matter, and the draft
ing of the foregoing, I have had the advantage of
reading the reasons of the Federal Court of Appeal
in Bhatnager v. Canada (Minister of Employment
and Immigration). 6 The Court in reversing my
decision' held that knowledge of the order by, or
proof of its service on, the lawyer for a party in a
civil matter in the Federal Court is sufficient to fix
that party with knowledge of the order for pur
poses of a subsequent prosecution for contempt of
court. In other words, the requirements of service
in a civil case suffice for imposing quasi-criminal
responsibility for contempt on a party to the
action. That case differed from the present case in
that there was no basis there for me to infer from
the circumstances actual knowledge by two federal
ministers of an order made against them: only a
limited interval intervened between the order and
its violation as the order was issued on August 15,
1985 and compliance was in the circumstances
required by August 26; and there was no appeal or
consent order where communication by the solici
tor with the client could be presumed. Yet the
Court of Appeal based its presumption of notice of
the order on the fact that the solicitor of record for
the ministers was aware of it. While in the present
case I am satisfied that such knowledge can be
presumed from the particular facts here, relying
on the Bhatnager decision I can in any event base
such a finding of knowledge by O.S. Micro Sys
tems, Lami Yee Lam, and Jack Liu on the simple
fact that their counsel was served with the orders
and was otherwise aware of the appeal and the
continuation of the interlocutory injunction.
This conclusion is in any event corroborated by
evidence concerning the conduct of these respon
dents plus that of the other respondents in the
present proceedings with whom they were associat
ed. It must first be observed that the evidence
shows that the allegedly contumacious conduct
was carried on essentially by three individual
respondents, Lami Yee Lam, Jack Liu, and Jack
e [1988] 1 F.C. 171.
7 [1986] 2 F.C. 3 (T.D.).
Wu, together with the companies O.S. Micro Sys
tems Inc., and Comtex Micro System Inc. I am
satisfied that the corporations in question were
under the control of one or more of these individu
al respondents. There was ample evidence from
those who dealt with or worked for O.S. and
Comtex Micro System Inc. that these three
individuals appeared to be jointly operating these
businesses and were fully involved with their
activities. It was not disputed that during the
relevant period the two directors of O.S. Micro
Systems Inc. were Lami Yee Lam and Jack Liu;
and the directors of Comtex Micro System Inc.
were Lami Yee Lam, Jack Liu, and Jack Wu. The
evidence was far from clear on the role of Comtex
Imports Co. Ltd. and none of the individual
respondents are listed as directors of that com
pany. Nor was it clear what distinct role, if any,
Our Star International Trading Co. Ltd. played
although Lami Yee Lam was a director of that
company. As noted earlier, Concord Trading Ltd.
as such is irrelevant to these proceedings.
From the foregoing I am satisfied that the
knowledge and conduct of the three respondents
Lam, Liu, and Wu, and those they supervised,
provide the essential evidence relevant to the
knowledge of the corporate respondents O.S. and
Comtex Micro System Inc. The evidence satisfies
me that all of them were aware of the injunctions
and were even aware that an injunction application
was pending in the autumn of 1985. Robert Harris
who was employed by these gentlemen, first on
behalf of O.S. Micro Systems commencing in
August, 1985 and later on behalf of Comtex until
the fall of 1986, testified that he overheard Lam,
Liu, and Wu discussing with a Mr. Strachan in
mid-October, 1985 the fact that they had been
served with the notice of an application for an
injunction. At that time O.S. had somewhere be
tween 10 and 100 allegedly infringing computers
on hand, according to Mr. Harris, and a shipment
of another 200 was on the way from Taiwan. It
was decided during this discussion that the existing
inventory plus the new shipment would be invoiced
to Concord before there was a decision on the
injunction, while O.S. would retain possession.
This clearly indicates a knowledge of an impend
ing injunction. About the same time Harris was
told by either Lam or Liu that the applicant was
trying to obtain an injunction against them. He
was told by one of the three principals in January,
1986 that an injunction had been issued. Certain
procedures were also changed after the service of
the notice of motion for the injunction: staff were
instructed to refer to the machines in question by a
different model number and were told not to sell
them except to dealers whom they knew and with
whom they had dealt before. The evidence of
Harris was corroborated in certain respects by
other witnesses. Mr. Gumley, a computer dealer
who purchased from the respondents, was advised
by Lami Lam in approximately March, 1986 that
there was an injunction which prevented them
from selling the computer of the type put in as
Exhibit P6 at the hearing. Pat Costello, a private
investigator employed by the applicant, was told
by a salesman at O.S. Micro Systems in Decem-
ber, 1985 that the latter was prevented by an
injunction from selling Apple-type computers.
These facts are only consistent with the respon
dents having knowledge of the original injunction.
They were obliged to assume that that injunction
continued until terminated or until the trial, nei
ther of which events has ever happened.
Contumacious Acts
I am satisfied beyond a reasonable doubt that
the individual respondents, Lami Yee Lam, Jack
Liu, and Jack Wu, and the two corporations they
control, O.S. Micro Systems Inc., and Comtex
Micro System Inc., are guilty of contempt. I
believe they all acted in such a way as to interfere
with the orderly administration of justice and to
impair the authority or dignity of the Court and to
render nugatory an injunction or order of this
Court. This is sufficient to fix them with liability
for contempt although I also have concluded that
the respondents against whom the injunctions were
issued, namely O.S. Micro Systems Inc., Lami
Yee Lam, and Jack Liu, are also guilty of con
tempt for having disobeyed an injunction issued
against them.
Without going into many details, the evidence
shows that prior to the first injunction O.S. Micro
Systems Inc. and the individual respondents were
selling computers imported from Taiwan which
were sold with the model numbers 0S23, and
0S23D, the latter having a detached keyboard. It
was in respect of these computers that the injunc
tion was sought and obtained. Thereafter the
respondents continued to sell the same computers,
but under such names as 128k and the 128k data.
A version of the latter was the 128k data detach
able. Exhibit P-49 which had been purchased from
O.S. Micro Systems before the injunction, evi
dence of which had been put before Walsh J. when
he issued that injunction, and Exhibits P-6 and
P-52 purchased from Comtex, a successor corpo
rate instrument used by Lam, Liu, and Wu to
continue selling such computers, are all of the
0S23 or 128k variety with built-in keyboards.
Exhibits P-2 and P-3 were identified as of the type
sold by O.S. Micro Systems and Comtex as the
0523D or its successor, the 128k data detachable
(P-2) with separate keyboard (P-3). Unlike the
other computers put in as exhibits, P-2 and P-3
were not themselves clearly proven to have been
sold by O.S. Micro Systems or Comtex although
they were identified many times as identical to
computers sold by those companies. That several
hundred of these various computers were imported
by O.S. and Comtex (some in the name of Con
cord) after the first injunction was issued, and
distributed by them to dealers continuing well into
1987, was amply evidenced by invoices from the
factory to the importers and from O.S. and
Comtex to dealers to whom they acted as distribu
tors. This evidence was also corroborated by vari
ous inventories of stock of Comtex at relevant
times. Evidence as to such sales generally was
given by Robert Harris, the former employee of
O.S. and Comtex, and was confirmed by a Reggie
Ho who joined Comtex in June, 1986 and is still
with them. Confirmation of particular sales of
significant numbers of such computers was also
provided by various of the dealers supplied by O.S.
and Comtex. The change from operating under the
name of O.S. to that of Comtex did not, in my
view, alter anything. While the injunction was
issued against O.S. and not Comtex, and against
Lam and Liu but not Wu, as noted above the
directors of Comtex Micro System Inc. are Lam,
Liu and Wu. Because of their continuing close
association in the operation of what was essentially
the same enterprise with a new corporate name,
knowledge of the injunction and its breach, and
participation in that breach, must be attributed to
both companies and to all three respondents.
While the sale of these Apple-compatible com
puters which had commenced before the issue of
the injunction continued thereafter, important
questions remain as to whether the computers in
question were such as to be covered by the original
injunction issued by Walsh J. and continued by
Giles A.S.P. The respondents contend that the
computers they imported and sold were not cov
ered by the injunction, because: they did not con
tain the prohibited program described in the
injunctions; the cases of the computers sold were
not proven to be copies of the "applicant's two-
dimensional drawings" as referred to in the injunc
tions; and there was no infringement of the trade
mark "Apple Logo and Design" of the plaintiff
because the symbols used by the respondents on
their machines were dissimilar to that logo and, in
any event, were not used as trade marks. These
contentions must be examined in turn.
(1) Breach of copyright in program—As I
understand it, the applicant's program alleged to
have been infringed is an enhanced Apple IIe
operating system program known as the Apple
Enhanced Program which is the subject-matter of
Canadian Copyright 344,382. This program is
contained in ROM chips mounted on the mother
board of the computer in which they are employed.
While ROM chips are manufactured containing
such programs, a functional equivalent for such
chips can be made by copying them by a process of
burning the same program into an EPROM chip.
The respondents contend that while they sold com
puters which were Apple-compatible and which
would be made operable by the insertion of such
chips, they did not sell computers containing such
chips. Further they say that the injunction misde-
scribed the registered copyright of whose infringe
ment the applicant complains.
I am satisfied beyond a reasonable doubt that,
in respect of at least many of the sales of the
Apple-compatible computers referred to above, the
respondents sold them with infringing chips. There
is evidence with respect to at least two computers
purchased from Comtex while the injunction was
in effect, namely Exhibits P-6 and P-52. Both of
these were tested by Robert Martin, the expert
witness called by the applicant, and he found these
computers to contain infringing chips. The evi
dence showed that the computers had been bought
from Comtex in this condition. The witness Harris,
the respondents' former employee, testified that
computers of the P-6 and P-52 variety and of the
P-2 variety continued to be sold after the injunc
tions with ROM or equivalent chips included. He
said he never saw one sold without such chips. He
said that Comtex purchased blank EPROMs in
quantity and most of these were sold with an
Apple program on them. He said further that
computers were tested before being delivered, and
to test them it was necessary that such a chip be in
place. While admittedly Harris is a disgruntled
former employee who lost his job with Comtex, his
evidence was generally corroborated by others.
Three dealers, Mr. Tee, Mr. Gumley, and Mr.
Brett all testified that they were supplied such
computers by O.S. or Comtex during the period
when the injunctions were in force, and that such
computers contained ROM or EPROM chips. Mr.
Tee and Mr. Gumley had received all Apple-com
patible computers complete with chips, while most
of those received by Mr. Brett had ROM or
EPROM chips. That such chips were being sup
plied by Comtex is further corroborated by the
fact that on the day when the search and seizure
was carried out at its premises pursuant to the
Anton Piller order, namely on March 31, 1987, the
applicant's expert Mr. Martin tested chips and
boards found in the premises. He found none
usable in these machines which did not have the
Apple program in them.
Even if some of these computers were sold by
O.S. or Comtex without a ROM or EPROM chip
containing the relevant Apple program, the evi
dence suggests that this was done with the expec
tation that the dealer or end user would insert an
infringing chip. In such circumstances the
respondents would also be guilty of acting in a way
to impair the authority of the Court and render
nugatory its order.'
While some of this evidence is circumstantial it
is consistent only with the guilt of the respondents.
I was not impressed by the main witness called on
their behalf to refute it. This witness was Reggie
Ho who has been an employee of the respondents
since June, 1986. In the first place it is clear that
he could not testify as to what had happened prior
to the time he started working there which was
some seven months after the injunction was issued.
He insisted that all Apple-compatible computers
were sold without ROM or EPROM chips con
taining the program which is the subject of the
copyright in question. Yet he was unable to give
any evidence of his personal knowledge of other
non-infringing chips which would make such com
puters operational. When asked why dealers would
acquire all of these computers which would be
non-functional without infringing chips, he could
only suggest that they were purchased for parts for
other computers. This appears to me so unlikely as
e Apple Computer, Inc. v. Mackintosh Computers Ltd.,
[1987] 3 F.C. 452, at pp. 470-474; 14 C.P.R. (3d) 1 (T.D.) at
pp. 14-17 and cases referred to therein.
to put into serious question any of Mr. Ho's evi
dence. His explanation as to why there were
numerous infringing chips on the premises on the
day of the raid was that these might have been
there since before the injunctions or might have
been returned by dealers or could have been in
computers brought in for servicing. I find his
evidence highly improbable as an explanation for
all of these sales or for the presence of so many
infringing chips on the premises.
With respect to the alleged misdescription of the
copyright allegedly infringed, the respondents
point out that while the injunctions enjoined the
copying of the "Enhanced Apple Ile Program",
they described this program as "the Plaintiff's
copyrighted works which are the subject-matter of
Canadian copyright registrations ... 444,382". It
is common ground that the copyright in question is
number 344,382. In other words a "4" was wrong
ly substituted for a "3" at the beginning of the
relevant registration number so that on its face the
injunction appears to apply to protect a copyright
which has nothing to do with the matter in hand.
While the number was properly stated in para
graph 33 of the statement of claim, it was errone
ously stated at least twice in the prayer for relief.
That error was unfortunately carried forward in
the formal order prepared for the signature of
Walsh J. and the injunction in this form was
continued by Giles A.S.P. This error remains
unexplained and appears to me to be inexplicable.
The question remains as to whether it should be
fatal to the applicant's allegation of copyright
infringement. I respectfully accept that the correct
approach in these matters was indicated by the
Supreme -Court of Canada in Baxter Travenol
Laboratories of Canada Ltd. et al. v. Cutter
(Canada), Ltd. 9 where, in reference to an errone
ous description of the plaintiff in the reasons for
judgment it said that this was "a clerical mistake
only, which could not have misled Cutter" (Cutter
being the defendant). I am satisfied that the
respondents were not misled by this typographical
error in the injunction and knew full well which
program of the applicant it was prohibited from
infringing. To put the respondents' case at its
highest, they might theoretically have found
ambiguity in the reference in the injunction to the
"Enhanced Apple IIe Program" as being the
subject-matter of copyright registration 444,382.
That their bewilderment could have lasted very
long, considering that they had already unsuccess
fully contested a motion in which they could have
had no doubt as to which copyright was in issue, is
barely credible. Further, it was open to them to
seek clarification in the reasons given by Walsh J.
in which at page 14 he refers to the Apple
Enhanced Program as being subject to copyright
registration 344,382. I am satisfied that the
respondents could have had no reasonable doubt as
to the program whose infringement was enjoined
by the order of Walsh J. They cannot be excused
from complying with an order on such a technical
ity, deplorable though the error might be.
I therefore find that the respondents did infringe
copyright 344,382, and may be properly found
guilty of contempt of court in respect thereto.
(2) Breach of Copyright in Design of Case—
The respondents contend in respect of this matter
that although the injunctions prohibited them
from importing, selling, etc., computers
which appear to be or in fact are copies in three dimensions of
the applicant's two-dimensional drawings and plans for the
cases of its Apple II, Apple lle, and Enhanced Apple IIe
computers or a substantial part thereof ....
there was no evidence presented at the show cause
hearing of the two-dimensional drawings and plans
referred to.
9 [1983] 2 S.C.R. 388, at p. 390; 75 C.P.R. (2d) 1, at p. 3.
It is true that no drawing or plan was put in
evidence before me. However, it is not my role to
adjudicate once again the matters decided by
Walsh J. when he issued the original injunction.
Again, there can be no reasonable doubt among
the parties as to what was meant by the wording of
the injunction, particularly having regard to the
evidence before Walsh J. and the reasons given by
him for his order. It was common ground that he
had before him photographs of the computer
which became Exhibit P-49 in the contempt hear
ing, together with expert evidence which satisfied
him that there was a prima facie case that the
applicant's design for the case had been infringed
by the defendants in importing and selling comput
ers such as P-49. It was on that basis that the
injunction was issued and the defendants in that
proceeding could have been under no illusion as to
what design was prohibited. They and their associ
ates who are among the respondents in the present
proceeding must be taken to have shared this
information. In the contempt hearing before me
two further computers, P-6 and P-52, were put in
as evidence and were proven to have been pur
chased from Comtex during the existence of the
injunctions. I have compared those two computers
with P-49, evidence as to which formed the basis
for the order by Walsh J. Careful visual examina
tion of them satisfies me that they "appear to be"
copies of the same design incorporated in P-49,
albeit that the keyboards are somewhat different
for functional reasons. In this latter respect, the
injunction equally prohibits copies of "a substan
tial part" of the design or plans of the applicant. I
am therefore satisfied that the injunction is suf
ficiently clear and that the respondents have com
mitted contempt of court in respect of it with the
sale of computers enclosed in such a case.
I should simply note that Walsh J. in finding a
prima fade case of breach of copyright proceeded
on the basis of the then current jurisprudence to
the effect that such drawings could be the subject
of copyright and not within the Industrial Design
Act, R.S.C. 1970, c. I-8. To the extent that the
decision of the Federal Court of Appeal in Bay-
liner Marine Corp. v. Dorai Boats Ltd. 10 might
now suggest a different conclusion, this is irrele
vant as the respondents were obliged to obey the
injunction as issued.
3. Infringement of Trade Mark—The key
boards of each of the computers put before me as
exhibits include two keys bearing symbols which
appear to consist of a circle with a bent line
proceeding from the top centre point of the cir
cumference which, when taken with the circle
below it, certainly gives the impression of being
the stem of a round fruit. One of these symbols has
an "open" circle, that is, with just the circumfer
ence outlined in black; the other is "closed" or
solid, the circle being completely black. Counsel
for the respondents admitted that all of the com
puters like Exhibit P-6 sold by the respondents had
such symbols on them. Mr. Martin, the applicant's
expert, who was present at the time of the raid on
the Comtex premises, said that the two computers
which he examined there had such symbols and
that representatives of the respondents said that all
the other computers which were packed in boxes
on the premises were similar.
According to the evidence, Apple IIe keyboards
bear, on the corresponding keys, a form of the
Apple logo which is in the shape of an apple with a
stem and a bite removed from the side. On such
keyboards one key has the symbol simply outlined
whereas the other one is solidly coloured in the
same colour as that outline.
The injunction as quoted above prohibited the
respondents from selling, etc. computers
having applied thereto a trademark which is confusing with the
trademark "Apple Logo and Design" forming the subject-
matter of Canadian trademark registration 264,154... .
The respondents contend that the symbol on their
computers is not confusing with Apple's logo and,
10 [1986] 3 F.C. 421; 10 C.P.R. (3d) 289.
moreover, it is not applied to their computers as a
trade mark.
On the question of whether the respondents'
symbol is confusing, I have applied the accepted
test of the "first impression" " and I have conclud
ed that it is confusing. While the respondents
contend that their symbols, being circular, would
not be confused with the natural apple-shape with
a bite out of the side as used in the applicant's
logo, I believe that the average person, seeing the
respondents' computer separate from the computer
of the applicant, could easily be misled into think
ing that the respondents were using the Apple
logo. This could in turn lead them to think that
such a computer was also made by Apple. At page
6 of his reasons for the injunction, Walsh J. con
cluded that the use of "some circular device with
or without a stem" on such keys of the keyboard
"would most likely be an infringement" of the
applicant's trademark, and the injunction was
issued to implement that decision. I have equally
concluded that the respondents' symbol is confus
ing.
As noted above, the respondents further contend
that even if their symbol is confusing with the
applicant's trademark it is not being used as a
trademark within the meaning of sections 2 and 4
of the Trade Marks Act, R.S.C. 1970, c. T-10 and
therefore there cannot be confusion as described in
section 6 of that Act. To support this argument,
counsel relied on two cases 12 in which marks, when
used on material or packages of someone other
than the owner of the mark, were held not to be
used as trade marks. In my view those cases are
irrelevant as they clearly dealt with situations
where the trade mark of another was reproduced
on a package for purposes of showing how the
packager's product might be used in connection
with the product of the owner of that trade mark.
1 See e.g., Oshawa Group Ltd. v. Creative Resources Co.
Ltd. (1982), 61 C.P.R. (2d) 29 (F.C.A.), at pp. 36-37; Leaf
Confections Ltd. v. Maple Leaf Gardens Ltd. (1986), 12
C.P.R. (3d) 511 (F.C.T.D.), at p. 521.
12 Clairol International Corp. et al v. Thomas Supply &
Equipment Co. Ltd. et al, [1968] 2 Ex.C.R. 552; 38 Fox
Pat. C. 176; Bombardier Ltd. v. British Petroleum Co. Ltd.,
[1973] F.C. 480; 10 C.P.R. (2d) 21 (C.A.).
In each case it was obvious from the context that
the other's trade mark was not being applied to a
package to indicate the source of that package. In
the present case these circumstances do not exist.
The respondents' symbol, which I find to be con
fusing with the logo of the applicant, is used on
two keys of the keyboard of their computers in
exactly the same way that Apple uses its logo on
its keyboards, and the natural inference which a
member of the public would draw is that the
respondents' computers are somehow from the
same source as those of Apple.
I therefore conclude that the respondents have
breached, or contributed to the breach of, this part
of the injunction as well.
Some Procedural and Evidentiary Issues
In case this matter should go farther, it may be
useful to note some of the problems in this area
which will appear more fully in the transcript of
the proceedings.
Counsel for the respondents took certain objec
tions to me looking at the Court file in respect of
matters such as service or admission of service of
the injunction. As this matter was proceeded with
by way of motion, Rule 319(2) applied and it
provides:
Rule 319. .. .
(2) A motion shall be supported by affidavit as to all the
facts on which the motion is based that do not appear from the
record .... (Emphasis added.)
There is no definition of "record" in the rules in
this context nor have I been able to find any in the
jurisprudence. I am satisfied that the "record" on
a show cause motion includes those elements of the
file relevant to the issues before the Court for
determination; and that documents on the Court
file may be assumed to be what they purport to be
unless proven to the contrary. This does not mean
that their contents must be automatically taken as
proven, of course, but where the contents purport
to be an admission of service by the solicitor of
record this can be taken as proof of that fact in the
absence of proof to the contrary.
The hearing of this matter proceeded as on a
motion as there had been no order for it to be
heard as a trial. By consent of the parties, evidence
was allowed to be taken viva voce as permitted by
Rule 319(4). A problem arose with respect to the
presentation of an expert's testimony, namely that
of Robert Martin called on behalf of the applicant.
It not being a trial, Rule 482 with respect to the
requirement that a statement of the proposed evi
dence of an expert be filed and served at least ten
days in advance of its presentation did not apply.
Counsel for the respondents objected to the lack of
such statement. In order to ensure fairness to the
respondents in a manner consistent with the
requirements of Rule 482 I ruled that insofar as
the expert's evidence as to his testing of computer
components had already been disclosed in the
affidavits previously filed by the applicant in ear
lier proceedings connected with the injunctions
and the Anton Piller order, such evidence could be
presented by Mr. Martin. To the extent that such
information had not been previously communicat
ed, I ruled that it could not be introduced as
evidence. Mr. Martin was thereby limited in his
evidence in chief. However, counsel for the
respondents cross-examined Mr. Martin on areas
with respect to which I had held that he could not
give evidence in chief. This having happened, I
allowed counsel for the applicant to reexamine
with respect to those areas opened up by counsel
for the respondents on cross-examination. All of
this suggests that in cases of this nature consider
ation should be given in advance to the possibility
of an order under Rule 327 directing the trial of
such issues with directions concerning pre-trial
procedure and the conduct of the trial. 13
An important issue was raised concerning the
admissibility of certain documents obtained in
directly as the result of the Anton Piller order. The
Anton Piller order required inter alia that the
respondents Lam, Liu and Wu in action T-664-87
advise the applicant's solicitors, if requested, of the
location of documentary evidence relevant to the
business affairs of them and their companies.
According to the evidence, on the occasion of the
raid one of the solicitors for the applicant asked
about certain invoices which appeared to be miss
ing from the files at the premises raided, and was
told by Mr. Wu that customs officers had seized a
number of such documents. This was on March 31,
1987. It appears that counsel for the applicant
then tried to get access to these documents. Reve
nue Canada refused to give such access without
the consent of counsel for the respondents herein.
Respondents' counsel refused consent. Ultimately
counsel for the applicant applied to the County
Court of British Columbia, pursuant to provisions
in the Criminal Code [R.S.C. 1970, c. C-34], for
access to these documents and this was granted on
October 23, 1987. These documents were then
produced in Court by Inspector Galbraith, a senior
investigator with Revenue Canada. Counsel for the
respondents argued that such evidence should not
be admitted because its submission would be con
trary to provisions 8, 11(c), 13, and 24 of the
Charter [Canadian Charter of Rights and Free
doms, being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11
(U.K.)]. Reliance was also placed on paragraph
2(d) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III]. It was further argued that produc
tion of documents or discovery ought not to be
ordered in penal matters. It was argued that the
documentary evidence in question was the "fruit of
the forbidden tree": it had been obtained on the
basis of information gained in contravention of the
Charter of Rights and should therefore not be
admitted.
" See also the reasons of Rouleau J. in Selection Testing,
supra note I.
Briefly put, I rejected these contentions and held
the documents to be admissible. In the first place,
I distinguished this situation from cases where the
courts had expressed reluctance to issue orders of
discovery or production in penal cases. 14 In the
present case we were faced with the fact that an
order had already been given: the respondents had
not moved in the six and one-half months since its
execution to set aside that order nor had they
appealed it. The material obtained by it directly
and indirectly was now before the Court. I con
cluded that this was not a "search or seizure" in
the meaning of section 8 of the Charter 15 and in
any event it was carried out pursuant to court
order and in a reasonable way. Moreover, I held
that in accordance with the authorities, paragraph
11(c) and section 13 of the Charter applied only to
protect witnesses from being obliged to testify. 16
There was nothing of that sort here. Mr. Wu,
when he answered the question of counsel for the
applicant, was not a "witness": he was not under
oath and the evidence does not even indicate that
he felt obliged to answer. I concluded that para
graph 2(d) of the Canadian Bill of Rights pro
vided no greater protection in this respect than the
Charter." I further observed that even if there had
been a violation of the Charter, I would not think
this an appropriate case to apply subsection 24(2)
of the Charter so as to deny admission of the
evidence. This surely is not a situation where the
admission of such evidence "would bring the
administration of justice into disrepute": the evi
dence was obtained by virtue of a court order;
there was provision in that order for the respon
dents to move at any time to set it aside which
they did not do; there was no evidence of duress,
even psychological, being applied to Mr. Wu in
order to obtain the information from him as to the
14 E.g., Rank Film Distributors Ltd v Video Information
Centre, [1981] 2 All ER 76 (H.L.); Amway of Canada Ltd. v.
Canada, [1987] 2 F.C. 524, at pp. 531-532; (1986), 34 D.L.R.
(4th) 201 (C.A.), at page 206, leave to appeal refused by
S.C.C. December 3, 1987 [[1987] 2 S.C.R. v].
15 Ziegler v. Hunter, [1984] 2 F.C. 608; (1983), 81 C.P.R.
(2d) 1 (C.A.); Thomson Newspapers Ltd. et al. v. Director of
Investigation & Research et al. (1986), 34 D.L.R. (4th) 413
(Ont. C.A.).
16 Regina v. Altseimer (1982), 38 O.R. (2d) 783 (C.A.).
' 7 See Ziegler case, supra note 15, at pp. 636-637 F.C.; 23
C.P.R.
location of the documents in question; and those
documents were in turn obtained pursuant to
another court order and brought before me by a
public official, many months after the respondent
knew that the applicant was aware of the location
of these documents and was taking steps to obtain
them by legal means. This sequence of events can
hardly be viewed as bringing the administration of
justice into disrepute. Instead I concluded that
there were no Charter or Bill of Rights reasons for
refusing admission of the documents and that the
basic common law rule applied that once a party
has evidence, no matter how it has been obtained,
he is entitled to use it if it is relevant.
I should also make some observations on the
credibility of the witnesses. The credibility of Mr.
Harris, as a disgruntled former employee of the
respondents, was attacked by counsel for the
latter. While it is clear that Mr. Harris would have
some motives for giving evidence prejudicial to the
respondents, I am satisfied that his evidence was
truthful. He had a very clear recollection of details
and his testimony was not seriously weakened on
cross-examination. With respect to certain of the
dealers who testified on behalf of the applicant,
counsel for the respondents sought to show that
they had some financial interest in now favouring
Apple, the applicant. I found these witnesses to be
truthful and I am not at all persuaded that they
altered their evidence in order to find favour with
Apple. The principal witness for the respondents,
Mr. Ho, could not of course testify to events before
his arrival in June, 1986, some seven months after
the first injunction was issued. Further, the whole
of his evidence was seriously weakened in my view
by his explanation that the sales of Apple compat
ible computers without, as he said, ROM chips,
was for the purpose of providing repair parts to
dealers. That some hundreds of computers should
be sold for this purpose defies belief.
I have also given some weight to the fact that
none of the individual respondents gave evidence. I
believe there was a very substantial case for them
to answer and they did not do so. Although this is
a quasi-criminal matter I am entitled to take into
account their failure to testify 18 and I have done
so.
I might add that I have completely ignored the
evidence of Nelson Hsu and Gerald E. Yih as I
was unable to see any probative value in their
testimony in relation to the issues before me for
determination.
CONCLUSION
I therefore find that O.S. Micro Systems Inc.,
Lami Yee Lam, and Jack Liu are guilty of con
tempt of court through breach of the two injunc
tions, and that they as well as Comtex Micro
System Inc., and Jack Wu are guilty of contempt
for acting in such a way as to interfere with the
orderly administration of justice and to impair the
authority or dignity of the Court and to render
nugatory the orders of this Court by knowingly
participating in activities prohibited by the said
injunctions.
By agreement, the questions of penalties and
costs are to be spoken to by counsel before a
formal judgment is entered. I am postponing the
making of an order with respect to penalties and
costs in respect of Minitronics of Canada Limited
and Angel Li Lam as well until after that hearing
takes place.
18 See e.g. Rex v. Steinberg, [1931] O.R. 222 (App. Div.),
coed without reference to this point [1931] S.C.R. 421; R. v.
MacLeod, [1968] 2 C.C.C. 365 (P.E.I.S.C.); Pratte v. Maher
and The Queen, [1965] 1 C.C.C. 77 (Que. Q.B.); Re Tilco
Plastics Ltd. v. Skurjat et al., [1967] 1 C.C.C. 131 (Ont.
H.C.), at pp. 158-59; Corbett v. The Queen, [1975] 2 S.C.R.
275; (1973), 42 D.L.R. (3d) 142.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.