Jonathan Bryce Grayson Bell

The court determined the costs for seven different motions in a complex commercial action involving Mareva injunctions and proprietary claims.

Applying the principles from Boucher and Rule 57.01, the court awarded partial indemnity costs to the successful parties on each motion, balancing divided success and the reasonableness of the amounts claimed.

In total, the plaintiffs were ordered to pay net costs to various defendants, while some defendants were ordered to pay costs to the plaintiffs for motions where the plaintiffs were successful.

The Divisional Court remitted a matter back to the Superior Court to determine whether disclosing the identities of third-party funders paying the living expenses of the Aljabri defendants posed a risk to their personal safety.

The defendants adduced unchallenged evidence that the Saudi regime had previously targeted the family and associates of the lead defendant following a 2017 palace coup.

The court found a material risk that disclosure to the plaintiffs could lead to the information reaching the Saudi government, jeopardizing the funders' safety.

The court ordered that the identities remain disclosed on a counsels' eyes only basis and not be provided to the plaintiffs.

The plaintiffs brought a motion seeking a declaration that the defendant waived litigation privilege over a 'Proffer' document provided to the Attorney General of Canada for national security vetting under s. 38 of the Canada Evidence Act.

The court held that while the document was created for the dominant purpose of litigation, the defendant's stated intention of using it to promote trial efficiency constituted a waiver of privilege vis-à-vis the trial judge.

The court ordered the unredacted Proffer to be provided to the judge and established a comprehensive trial protocol, including the appointment of amicus curiae and advance vetting of sensitive evidence, to balance national security concerns with trial fairness.

Both the moving parties and the responding parties sought leave to appeal a decision of the Superior Court of Justice.

The Divisional Court dismissed the moving parties' motion for leave to appeal on the basis that the issue was moot in the context of the case.

The responding parties' motion for leave to appeal was granted, with costs to be determined by the panel hearing the appeal.

The decision grants the motion of Saad Khalid S. Al Jabri for leave to issue a commission and letters of request to obtain evidence from witnesses outside Ontario for use at trial.

The court finds that the anticipated evidence of the proposed witnesses is material to issues in the action, and that the request is bona fide.

The ruling addresses the test for issuing commissions and letters of request, emphasizing the importance of a fair and full trial, and applies the test to several categories of proposed witnesses, including alleged co-conspirators, foreign officials, and counterterrorism experts.

The decision concerns a motion by Saad Aljabri and related parties for leave to issue a counterclaim in a complex civil action.

The court dismissed the motion, finding that the proposed counterclaim for abuse of process and conspiracy was statute-barred under Ontario law, and that the applicants failed to prove that Saudi law applied or that any exception to the limitation period existed.

The court also found that the proposed claims for declaratory relief against additional parties were not supported by a tenable cause of action.

The risk of prejudice to the plaintiffs, including loss of the scheduled trial date and increased costs, further supported dismissal.

The decision addresses a motion by Saad Aljabri, Mohammed Aljabri, and various corporate defendants to vary Mareva orders freezing their worldwide assets, seeking the release of frozen funds to pay legal fees.

The court grants the motion for all moving parties except Dreams International Advisory Services Ltd., finding that the Mareva Defendants have shown they lack access to other assets or reliable third-party funding, and that a variation is necessary to ensure a fair trial.

The court dismisses the motion by Dreams, finding insufficient evidence that it lacks access to other funds.

The decision reviews the legal test for varying Mareva orders and applies a balancing of interests, including the merits of the case, the complexity of the litigation, and the conduct of the parties.

Chicago Title Insurance Company brought a motion to disqualify the law firm Gardiner Roberts LLP from representing Anthony Maniaci in an indemnity application.

Chicago Title argued that Gardiner Roberts had a conflict of interest because the firm also represented Thomas Donnelly, a lawyer who had previously provided coverage opinions to Chicago Title and was threatened with a negligence claim by them.

Chicago Title asserted that Gardiner Roberts possessed confidential and privileged information through its representation of Donnelly that could be misused.

The court granted the motion, holding that the integrity of the judicial system required the removal of Gardiner Roberts as counsel of record due to the significant risk of conflict and the potential for lawyers involved in the coverage advice to become witnesses.

This decision addresses a motion by the plaintiffs for production and directions regarding claims of privilege over thousands of documents and answers to questions refused on discovery in a complex, multi-party commercial litigation.

The court reviews the legal principles governing solicitor-client privilege, litigation privilege, and common interest privilege, and applies them to various categories of documents and questions.

The court provides detailed directions on the production of documents, the sufficiency of evidence to support privilege claims, and the process for resolving ongoing disputes about privilege.

The appellants appealed a motion judge's decision dismissing their motion to compel the production of law firm trust ledgers and unredacted bank statements from the respondents.

The underlying action involves allegations of a massive international civil fraud.

The Divisional Court upheld the motion judge's finding that the law firm trust ledgers were presumptively privileged and that the appellants failed to rebut the presumption.

The Court also agreed that the 'future crimes and fraud' exception to solicitor-client privilege did not apply to civil fraud.

However, the Court allowed the appeal in part, finding that the motion judge erred in presuming privilege over redacted entries in non-law firm bank statements without requiring the respondents to prove the privilege claim.

The issue of the unredacted bank statements was remitted to the motion judge.

The plaintiffs brought a motion seeking a declaration that a document ("the Proffer") provided by the defendant to the Attorney General for Canada (AGC) under s. 38 of the Canada Evidence Act was not subject to privilege or that any such privilege had been waived, and an order for its production.

The defendant asserted litigation privilege.

The court found that the Proffer was created for the dominant purpose of preparing for litigation, making it presumptively protected by litigation privilege.

The court further held that the disclosure of the Proffer to the AGC, being a statutory compulsion, did not constitute a voluntary waiver of privilege, nor did fairness and consistency require waiver.

The plaintiffs' motion was dismissed.

The Court of Appeal for Ontario heard an appeal and cross-appeal stemming from a wrongful dismissal judgment.

The appellant, Davide Giacomodonato, appealed the damages award, contending the trial judge erred by applying the second employment contract instead of the first.

The court dismissed his appeal, affirming the trial judge's finding of fresh consideration for the second contract, including a $40,000 payment and additional vacation time.

The respondents, PearTree Securities Inc. and PearTree Financial Services Ltd., cross-appealed the costs award.

Their motion for leave to appeal costs was dismissed, as the court found no error in principle in the trial judge's discretionary costs award, which was justified by the respondents' litigation conduct.

This is a costs endorsement following the dismissal of the plaintiffs' contempt motion against two defendants, Saad Aljabri and Mohammed Aljabri.

The plaintiffs had sought a contempt order for alleged breaches of a Mareva Order, with potential sanctions including striking defences and default judgments for billions of dollars.

The defendants, as successful parties, sought substantial indemnity costs.

The court declined to award substantial indemnity costs, finding the plaintiffs' conduct was not reprehensible, scandalous, or outrageous, nor did they pursue the motion for an improper tactical advantage.

The court awarded partial indemnity costs to the defendants for the contempt motion.

Additionally, the court fixed costs for several preliminary motions, with mixed success for the parties, rejecting a "distributive costs" approach for the contempt motion itself but fixing costs for each preliminary motion separately.

The plaintiffs moved to compel the defendants, Saad Aljabri and Mohammed Aljabri, to produce law firm trust ledgers and to answer certain questions from examinations.

The court held that trust ledgers are presumptively protected by solicitor-client privilege and that the plaintiffs failed to rebut this presumption.

The court further concluded that the "crime/fraud" exception to solicitor-client privilege does not apply to civil wrongs, including civil fraud, following the principle of horizontal stare decisis.

Consequently, the motion to compel production of trust ledgers was dismissed.

The motion to compel Mohammed Aljabri to answer undertakings and other questions was allowed, subject to redactions for privileged information in bank statements.

The plaintiffs, a group of private companies, brought a motion seeking to find Dr. Saad Aljabri and his son, Mohammed Aljabri, in contempt of court for allegedly breaching a Mareva Order.

The plaintiffs claimed the defendants used assets frozen under the Mareva Order to pay for legal and living expenses, arguing that a purported gift of assets from Dr. Aljabri to Mohammed before the order was a fiction.

The defendants contended that the Mareva Order did not clearly apply to the gifted assets and that the gift was valid.

The court dismissed the plaintiffs' motion, finding that they failed to prove beyond a reasonable doubt that the Mareva Order clearly and unequivocally applied to the purportedly gifted assets, or that Dr. Aljabri retained an interest in or control over them.

The court emphasized the high standard of proof (beyond a reasonable doubt) required for civil contempt and that findings from prior civil proceedings (e.g., 'badges of fraud' on a balance of probabilities) do not shift the burden of proof in quasi-criminal contempt proceedings.

The plaintiffs, purchasers of pre-construction homes, sued the developer, its directors, its lender, and the subsequent purchaser of the development after their agreements of purchase and sale were terminated and their deposits retained.

Several groups of defendants brought motions to strike the statements of claim under Rule 21.01(1)(b) and Rule 25.11.

The court found the pleadings to be deficient, confusing, and lacking material facts.

Many claims, including conspiracy, interference with economic relations, and inducing breach of contract, were struck with leave to amend.

Claims for unjust enrichment and claims against the individual directors of the subsequent purchaser were struck without leave to amend.

Claims against the former directors of the developer under the Assignments and Preferences Act and for oppression were allowed to proceed.

This motion concerned a request for a stay pending appeal of a judgment secured by Lithium Royalty Corporation (LRC) after a bifurcated liability hearing in a breach of contract action.

The moving parties (Orion entities) sought a full stay of the underlying action and their appeal.

The court dismissed the motion for a full stay of the underlying action but granted a partial stay against two specific respondents, Bellatrix Ltd. and Orion Mine Finance (Master) Fund I LP, preventing enforcement actions without leave, due to the apparent strength of their appeals regarding corporate separateness.

The court also ordered a stay of the appeal itself (COA-23-CV-1029) pending the conclusion of the underlying trial to promote judicial efficiency and avoid multiplicity of proceedings.

The plaintiff, Davide Giacomodonato, sought costs after successfully prosecuting his wrongful dismissal claim and defending a counterclaim brought by his former employer, PearTree Securities Inc. and PearTree Financial Services Ltd. The court awarded the plaintiff costs on a partial indemnity basis, fixed at $830,761.75, inclusive of disbursements and HST.

The court found that PearTree's counterclaim was meritless and tactical, and that PearTree engaged in inappropriate conduct, including late disclosure of documents, which unnecessarily increased the costs of the proceeding.

PearTree's Rule 49 offer was not given significant weight as the plaintiff achieved a better result.

The plaintiff, an investment banker, sued his former employer for wrongful dismissal and unpaid compensation.

The employer counterclaimed, alleging the plaintiff breached non-competition and non-solicitation clauses by joining a competitor.

The court found that the parties entered into two successive binding employment contracts.

The court made specific findings on how the plaintiff's variable compensation should be calculated under the second contract.

The court awarded the plaintiff $10,000 in punitive damages because the employer improperly withheld amounts admittedly owed to him.

The employer's counterclaim was dismissed in its entirety, as the restrictive covenants were found to be overly broad, unreasonable, and unenforceable.

The defendants brought a motion for leave to appeal an order of King J. dated February 1, 2023.

The Divisional Court dismissed the motion for leave to appeal and awarded costs to the plaintiff in the amount of $5,000.