Jonathan G. Bell

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 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 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.

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 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 (Moving Parties) sought an order for the issuance of two letters of request to judicial authorities in the Kingdom of Saudi Arabia to compel the examination of two witnesses, Yasir O. Al-Rumayyan and Fahad Nasser Alarfaj.

The Moving Parties argued these witnesses had relevant evidence for their motion to set aside Mareva orders, particularly regarding alleged contradictory positions taken by the plaintiffs (controlled by Saudi Arabia's Public Investment Fund) in this action versus unrelated U.S. litigation (LIV Golf Litigation) concerning PIF's independence from the KSA government.

The motion was unopposed by the plaintiffs.

The court found the proposed witnesses had prima facie relevant evidence and that the requirements under Rules 39.03 and 34.07(2) for examining non-parties and issuing letters of request for witnesses outside Canada were met.

The order for letters of request was granted.

The Court of Appeal for Ontario issued supplementary reasons regarding the remedy and costs following its prior decision (2023 ONCA 139) which declared s. 37.10.1(2) of the Election Finances Act unconstitutional.

The appellants sought to invalidate additional provisions, including the definition of "political advertising," s. 37.0.1, s. 37.10.1(3)-(3.1), and s. 37.10.2.

The court declined this request, finding these provisions were not inextricably linked to the previously invalidated section and were not independently shown to infringe section 3 of the Canadian Charter of Rights and Freedoms.

The court also noted that the election period spending limits (s. 37.10.1(1)) were not challenged and remain in force.

No disposition was made as to costs, as the parties had reached an agreement.

This appeal concerned the constitutional validity of Ontario's third-party election spending limits, specifically the extension of the pre-writ restricted period from 6 to 12 months without increasing the spending cap.

The appellants argued this infringed the informational component of the right to vote under s. 3 of the Charter, which is not subject to the notwithstanding clause (s. 33).

The Court of Appeal found that while s. 33 was properly invoked, the extended spending restrictions were not "carefully tailored" and did not permit a "modest informational campaign," thereby infringing the s. 3 right to meaningful participation in the electoral process.

The infringement was not justified under s. 1 of the Charter.

The court declared the impugned provision invalid and suspended the declaration for 12 months.

This is an appeal from a motion judge's decision to assume jurisdiction over foreign defendants in a complex international fraud and conspiracy case.

The respondents (original plaintiffs) alleged that a Toronto resident orchestrated a scheme to misappropriate billions of dollars from Saudi Arabian corporations and dissipate them globally, with the assistance of family members and various corporate entities.

The appellants (foreign defendants) challenged Ontario's jurisdiction, arguing a lack of real and substantial connection.

The motion judge found jurisdiction based on contracts made in Ontario (including a gift deed central to the alleged scheme), property located in Ontario, and the tort of conspiracy being committed in Ontario.

The Court of Appeal upheld the motion judge's decision, finding no palpable and overriding factual errors or legal errors in applying the Van Breda test for jurisdiction, and dismissed the appeal.

The defendant, Dr. Saad, sought a declaratory order that evidence he would provide in support of a renewed motion to stay the action would be inadmissible in a pending contempt proceeding against him, relying on the s. 13 Charter right against self-incrimination.

The Plaintiffs opposed, arguing the evidence was not compelled and the proceedings were not "other proceedings." The court dismissed Dr. Saad's motion, holding that his evidence on the stay motion was not statutorily compelled, and therefore s. 13 of the Charter was not engaged.

The court clarified that the proper time to seek use immunity would be at the contempt hearing itself.

This endorsement addresses the costs arising from a second Charter challenge to Ontario's election advertising spending restrictions (Bill 307), which the Attorney General successfully defended.

The Attorney General sought $580,652.54 in costs.

The Applicants argued against a costs award, citing the public importance of constitutional litigation and access to justice, and challenged the quantum of costs.

The court rejected the Applicants' access to justice argument, noting their financial capacity, and found the Attorney General's choice of external counsel and the work performed to be reasonable.

The court awarded the Attorney General $500,000 in all-inclusive costs, apportioned among the Applicant groups.

The moving party defendants brought a motion to dismiss or permanently stay the action against them, arguing the Ontario Superior Court lacked jurisdiction.

The plaintiffs alleged a massive international fraudulent scheme involving the misappropriation of $3.5 billion USD, with funds allegedly traced to the moving parties.

The court applied the Van Breda test and found a real and substantial connection to Ontario based on contracts formed in the province, property located in Ontario, and the necessity of hearing the claim as a whole in a single jurisdiction.

The motion was dismissed with costs awarded to the plaintiffs.