Sakab Saudi Holding Company v. Saad Khalid S Al Jabri, 2023 ONSC 2488
CITATION: Sakab Saudi Holding Company v. Saad Khalid S Al Jabri, 2023 ONSC 2488
DIVISIONAL COURT FILE NO.: 936/21
DATE: 20230425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sweeny R.S.J., D.L. Corbett and Nishikawa JJ.
BETWEEN:
SAKAB SAUDI HOLDING COMPANY,
Munaf Mohamed, Amanda McLachlan,
ALPHA STAR AVIATION SERVICES
Jonathan Bell and Douglas Fenton, for the
COMPANY, ENMA AL ARED REAL
Respondents / Cross-Appellants
ESTATE INVESTMENT AND
DEVELOPMENT COMPANY, KAFA’AT
BUSINESS SOLUTIONS COMPANY,
SECURITY CONTROL COMPANY,
ARMOUR SECURITY INDUSTRIAL
MANUFACTURING COMPANY, SAUDI
TECHNOLOGY & SECURITY
COMPREHENSIVE CONTROL
COMPANY, TECHNOLOGY CONTROL
COMPANY, NEW DAWN
CONTRACTING COMPANY and SKY
PRIME INVESTMENT COMPANY
Respondents / Cross-Appellants
– and –
SAAD KHALID S AL JABRI, DREAMS
Stuart Svonkin, Sean Pierce and John Adair,
INTERNATIONAL ADVISORY
for Dr Saad Aljabri
SERVICES LTD., 1147848 B.C. LTD.,
NEW EAST (US) INC., NEW EAST 804
Andrew Max, Emily Young and Emily Fraser,
805 LLC, NEW EAST BACK BAY LLC,
for Mohammed Aljabri
NEW EAST DC LLC, JAALIK
CONTRACTING LTD., NADYAH
SULAIMAN A AL JABBARI, personally
and as litigation guardian for SULAIMAN
SAAD KHALID AL JABRI, KHALID
SAAD KHALID AL JABRI, MOHAMMED
SAAD KH AL JABRI, NAIF SAAD KH AL
JABRI, HISSAH SAAD KH AL JABRI,
SALEH SAAD KHALID AL JABRI,
CANADIAN GROWTH INVESTMENTS
LIMITED, GRYPHON SECURE INC.,
INFOSEC GLOBAL INC., QFIVE
GLOBAL INVESTMENT INC., GOLDEN
VALLEY MANAGEMENT LTD., NEW
SOUTH EAST PTE LTD., TEN LEAVES
MANAGEMENT LTD., 2767143
ONTARIO INC., NAGY MOUSTAFA,
HSBC TRUSTEE (C.I.) LIMITED in its
capacity as Trustee of the Black Stallion
Trust, HSBC PRIVATE BANKING
NOMINEE 3 (JERSEY) LIMITED in its
capacity as a Nominee Shareholder of Black
Stallion Investments Limited, BLACK
STALLION INVESTMENTS LIMITED,
NEW EAST FAMILY FOUNDATION,
NEW EAST INTERNATIONAL LIMITED,
NEW SOUTH EAST ESTABLISHMENT,
NCOM INC. and 2701644 ONTARIO INC.
HEARD by ZOOM at Toronto:
Defendants (Appellant / Cross-Respondent)
June 2, 2022
REASONS FOR DECISION
D.L. Corbett J.
[1] This appeal concerns information and documents compelled under a Mareva order and whether they can be used in a contempt motion arising from alleged breaches of the Mareva order.
Background
[2] Dr Saad Aljabri is alleged to be a former high-ranking official of the Kingdom of Saudi Arabia. Mohammed Aljabri is Dr Saad’s son.
[3] The plaintiffs are companies established and funded by the Kingdom of Saudi Arabia.
[4] On January 22, 2021, the plaintiffs commenced this action, in which they allege that Dr Saad defrauded them of about $3.5 billion.
[5] On January 22, 2021, Gilmore J. of the Commercial Court granted a without notice Mareva order freezing all of Dr Saad’s worldwide assets, including assets held by third parties on behalf of him. Gilmore J. found that the record before her established a strong prima facie case of fraud against Dr Saad. The order required Dr Saad to provide a sworn asset declaration within ten days and to submit to cross examination on that affidavit within a further ten days. The order states that Dr Saad can be “imprisoned, fined, or have his assets seized” if he fails to comply with the order. By further order of Gilmore J. dated March 11, 2021, the Mareva order was continued “until further variation or order of the court.” (2021 ONSC 1772, para. 171(a))
[6] Dr Saad delivered two sworn asset declarations in February 2021 and was cross-examined on those declarations on February 11, 2021 and August 3-5, 2021. Dr Saad continued to provide written answers to cross-examination questions up to August 12, 2021. Dr Saad argues that his asset declarations and his written and oral cross-examination answers were compelled from him pursuant to the Mareva order [the “Compelled Evidence”].
[7] On August 27, 2021, the plaintiffs brought a motion for a finding that Dr Saad is in contempt of court as a result of alleged breaches of the Mareva order. The central allegation in the contempt motion is that the appellants used assets frozen by the Mareva order to pay for Dr Saad’s legal and living expenses. The plaintiffs rely on some of the Compelled Evidence in support of their contempt allegations.
[8] In September 2021, the appellants both brought motions, including a motion to strike the Compelled Evidence from the plaintiff’s motion record in the contempt motion. Dr Saad relies upon his right against self-incrimination, his right to silence, and his right to fundamental justice under ss. 7, 11(c) and 13 of the Canadian Charter of Rights and Freedoms (the “Charter”).
[9] The plaintiffs then brought a motion seeking orders: (i) requiring Dr Saad to answer undertakings and produce documents while the contempt motion was outstanding; (ii) compelling Dr Saad to produce his lawyers’ trust accounts; and (iii) ruling that such evidence (the “Prospective Evidence”) is “fully admissible” in the contempt motion.
[10] The Compelled Evidence motion and the Prospective Evidence motion were both argued before Cavanagh J. on October 21-22, 2021, who released his decision on November 19, 2021 (2021 ONSC 7681).[^1]
[11] In summary, Justice Cavanagh made an order:
a. finding that admitting the Compelled Evidence in the contempt motion would not violate Dr Saad’s rights under s. 13 of the Charter (Decision, para. 79);
b. finding that admitting the Compelled Evidence in the contempt motion would not violate Dr Saad’s rights under s. 11(c) of the Charter (Decision, para. 91);
c. finding that admitting the Compelled Evidence in the contempt motion would not violate Dr Saad’s rights under s. 7 of the Charter (Decision, para. 104);
d. finding that neither appellant can be compelled to provide further evidence to the plaintiffs for use in the contempt motion, including (i) answers provided after commencement of the contempt motion to undertakings given before commencement of the contempt motion, and (ii) production sought after commencement of the contempt motion.
Jurisdiction and Standard of Review
[12] The motion judge’s order is interlocutory. Appeal from it lies to this court, with leave, pursuant to s.19(1)(b) of the Courts of Justice Act.[^2] This court granted leave to appeal (2022 ONSC 150, para. 2 [Lederer, Matheson and Copeland JJ.]) and specified four questions on appeal, which are set out later in these reasons.
[13] The standard of review is correctness on questions of law and palpable and overriding error on questions of fact. Mixed questions of fact and law are reviewable on a deferential standard except that any “extricable errors of law” are reviewable on a correctness standard.[^3]
Background
[14] The Mareva order had the effect of freezing the appellants’ worldwide assets. While such an order is an extraordinary remedy, it is available in an appropriate case, and it leaves persons subject to the order in a position where they must seek authorization from the court to spend money, even to fund their basic living expenses and legal costs. The allegation in the contempt motion is that the appellants have breached the Mareva order to pay Dr Saad’s living expenses and to fund legal expenses in this and other litigation. From the outset, the respondents were clear that they were seeking to bring the appellants into compliance with the Mareva order and were not seeking imprisonment as a remedy for the alleged contempt. To quote from the respondents’ factum,
[t]he Plaintiffs’ goal is simply to stop the ongoing contempt by requiring [the Appellants] to apply to the Superior Court for permission to use frozen funds to pay for living and legal expenses.[^4]
[15] In retrospect, the plaintiffs might wish that they had moved for remedies for “non-compliance” with the Mareva order, rather than findings of contempt. However, with respect, the principles that apply to the court’s ability to control its own process and enforce its own orders should not turn on the way in which a compliance motion is framed. The Mareva order was made after the Commercial Court found a strong prima facie case of fraud on an enormous scale. The court must and does have flexible tools and inherent jurisdiction to control its own process to see to enforcement of its orders. These tools include compelling a party to demonstrate compliance with the court’s orders. The tools used by the court in a particular case to secure compliance with its orders may impact on the remedies available for non-compliance that is discovered. This issue ought to be dealt with practically, by the parties and by the court. Here, the evident nature of the contempt motion is coercive rather than punitive and it is focused on securing compliance rather than punishing past non-compliance.
[16] The court below has discretion as to how to manage the overall case – including scoping the contempt motion and managing it so that it does not derail the main proceeding. The main claim is for fraud. The Mareva order was intended to facilitate the court’s ability to do justice to the fraud claims at the end of the case. The contempt motion was designed to obtain compliance with the Mareva order. It surely should be clear that the contempt motion should not be transformed into the main cause and impede ongoing performance of the Mareva order and the underlying proceedings. I return to this point – and its practical implications in this case – at the end of these reasons.
Summary and Disposition
[17] I would state and answer the four questions on appeal as follows:
(1) Did the motion judge err in holding that the Compelled Evidence is admissible in the contempt motion, despite s. 7 of the Charter?
Answer: No, the motion judge did not err. I would dismiss this ground of appeal, substantially for the reasons of the motion judge.
(2) Did the motion judge err in holding that the Compelled Evidence is admissible in the contempt motion because a civil contempt motion is not “other proceedings” within the meaning of s. 13 of the Charter?
Answer: No, the motion judge did not err. I would dismiss this ground of appeal substantially for the reasons of the motion judge.
(3) Did the motion judge err in holding that answers and documents provided after the contempt motion was brought, in response to undertakings given before the contempt motion was brought, are inadmissible in the contempt motion, pursuant to s. 7 of the Charter.
Answer: Yes, the motion judge erred in part in this ruling. The motion judge did not err in ordering answers to undertakings, but he should have deferred any evidentiary ruling on admissibility until the undertakings had been answered and the moving parties sought to rely on any of the answers to undertakings on the contempt motion.
(4) Did the motion judge err in holding that the appellants are not required to produce certain documents while the contempt motion is outstanding, and in adjourning the production motion until after the contempt motion has been decided on the basis that s. 7 of the Charter prevents the compulsory production of pre-existing documents for use on the contempt motion.[^5]
Answer: Yes, the motion judge erred in this ruling. The motion judge should not have deferred the production motion and he should have deferred any questions of admissibility of compelled documents until those documents were sought to be tendered in evidence on the contempt motion.
[18] I would add two other points, which inform my conclusions respecting issues 3 and 4. In the circumstances of this case, it was open to the court below to restrict the moving parties to a motion for “non-compliance” rather than “contempt” and to restrict the nature of the remedies to coercive rather than punitive remedies. This is well-trod ground, particularly in family law, where a contempt motion is a “last resort” for most alleged non-compliance. These are matters of discretion, based on the particular case and circumstances. Here, the issue presents as a straightforward one, in principle. The appellants are not permitted to use frozen assets to fund Dr Saad’s expenses – no matter how reasonable and necessary those expenses may be – without court approval. This issue arises frequently in cases involving Mareva orders. Where a party has not obtained such an order, the court should take a swift and practical route to compel the party to bring themselves into compliance by seeking court approval. I would take this point further. Proceedings in Commercial Court are case-managed. This issue can be explored in case management and it is in the discretion of a case management judge to direct a defendant to bring a motion for approval of use of frozen funds to fund living and legal expenses, or to explain how those expenses are being paid, if not from frozen funds. This could be directed early in the process, after the Mareva order is granted, on the sensible premise that the defendant has to pay his expenses somehow and he should be brought to understand, at an early opportunity, that he must seek approval from the court for so doing.
[19] Second, commencement of a contempt motion does not bring the civil proceedings to a halt. Not does it end the ability of the moving party to develop its factual record in support of the contempt allegations. Even where the focus of the contempt motion is punitive, rather than coercive, the moving party may seek the court’s aid in obtaining evidence where the responding party will not agree to provide that evidence. An order in the manner of an Anton Piller order and/or an order for third party production may be available where a responding party is entitled to refuse to provide documents or information on the basis of Charter protections of the right to silence and against self-incrimination, but where the court is also satisfied that there is a proper basis to grant an Anton Piller order, a third party production order, or some other relief to assist the plaintiffs to develop their factual record. In a criminal proceeding, by way of analogy, the prosecution is entitled to continue to investigate and to assemble evidence, including, where appropriate, obtaining search warrants and production orders against third parties.
Analysis
[20] The motion judge began his analysis by summarizing legal principles relating to contempt motions in civil actions.[^6] He identified the following principles derived from the jurisprudence:
a. The Rule of Law is dependent on the power of the court to enforce its process and to maintain its dignity and respect.[^7]
b. The contempt power is an ancient one, traceable back to the 12th century English common law.[^8]
c. The deliberate failure to obey a court order strikes at the very heart of the administration of justice.[^9]
d. Remedies for contempt of court are of particular importance in the enforcement of Mareva orders, where the order is made to protect against rogue behaviour flouting the court’s process.[^10]
e. A civil contempt motion is quasi-criminal in nature. Both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law.[^11]
f. Procedural protections afforded to an alleged contemnor faced with civil contempt include:
(1) the right to be provided with particularized allegations of the contempt;
(2) the right to a hearing;
(3) the right to be presumed innocent until such time as guilt is proved beyond a reasonable doubt;
(4) the right to make full answer and defence, including the right to retain and instruct counsel, the right to cross-examine witnesses, and the right to submit or call evidence; and
(5) the right not to be compelled to testify at the hearing.[^12]
g. The Charter applies to a civil prosecution for contempt of court.[^13]
[21] I see no legal error in this summary of principles. I would add to them the following additional observations. As has been said many times before, court orders are not “suggestions” or “guidelines”. They are orders. They must be obeyed. However, not every transgression of an order should be met with an allegation of contempt of court. The contempt power is but one arrow in the quiver of remedies available to the court when faced with alleged non-compliance. “The contempt power is discretionary and courts have consistently discouraged its routine use to obtain compliance with court orders….”[^14]
[22] Second, the jurisprudence distinguishes between “coercive” enforcement measures, and “punitive” ones. The line between the two may be hazy, but the broad spectrum of possible non-compliance is easily grasped. Missing a court-ordered deadline by one day to provide answers to undertakings may provoke no response from the court at all (but may, perhaps, be relied on later in the process as part of a pattern of consistent non-compliance). Breaching a final order not to cut down a disputed tree, by destroying the tree, may leave nothing to do but punish the contempt: the non-compliance and its consequences cannot be undone.
[23] The power to enforce court orders is applied on this spectrum. Where the issue arises as part of the ongoing process of a case, enforcement should be aimed at facilitating the ongoing process. The court is not required to pursue a contempt motion where, in the court’s opinion, the alleged non-compliance does not appear to merit that sort of response. This is inherent in the contempt power itself: it arises from the court’s inherent jurisdiction to control its own process and to see to the enforcement of its orders.
[24] Third, there is an established line of authority about how to respond to these issues where a civil or administrative process may also involve criminal or quasi-criminal prosecution. Plaintiffs may rely upon administrative enforcement authority until the matter has become, in its true nature, a criminal prosecution. Where this has happened, plaintiffs are not thereafter frozen in their tracks, but rather are restricted to investigative techniques involving judicial oversight and Charter protections for a person accused with an offence, as described in R. v. Jarvis.
[25] Finally, the court has the inherent jurisdiction to see to enforcement of its orders, and this includes the power to compel a party to demonstrate compliance to the satisfaction of the court. This principle is reflected in the terms of Mareva orders generally, and the Mareva order granted in this case: it freezes Dr Saad’s assets and requires him to disclose those assets and demonstrate his ongoing compliance with the order. These requirements, in a case where a Mareva order has been made, do not preclude the court from relying on information compelled under the Mareva order to assess whether the order has been complied with.
Issue 1: Did the motion judge err in holding that the Compelled Evidence is admissible in the contempt motion, despite [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[26] The motion judge found that the compelled production of information from Dr Saad was a lawful term of the Mareva order, in furtherance of the court’s civil jurisdiction over claims of civil fraud and related allegations. The authority to make such an order has not been contested on this appeal, and it is well established in our jurisprudence.[^15]
[27] The court also has the jurisdiction to make an Anton Piller order[^16] which sometimes has been described as a “civil search warrant.”[^17] I address this point in more detail below but make the following initial observations about the relationship between Mareva and Anton Piller orders. It is a common feature of Mareva orders to direct production and information from a respondent. While this may be an extraordinary and intrusive order, it is less intrusive than an Anton Piller order, which authorizes a plaintiff to enter premises and seize the information and documents themselves. Other techniques that may be used in the context of cases involving Mareva and/or Anton Piller orders are orders for production from third parties such as banks and other financial institutions. In the absence of extraordinary orders such as Mareva and Anton Piller orders, parties to civil proceedings are obliged under the Rules of Civil Procedure to disclose and produce documents and to provide information during oral examinations for discovery. Compelled information is inherent to the civil litigation process. Then, of course, at a trial in the civil proceedings, compelled information may be used, and any witness who testifies may be compelled to answer questions and produce documents during the course of their testimony.
[28] These disclosure processes, in civil proceedings, are contrasted with the investigative powers of the state in criminal matters – and the protections afforded accused persons in criminal proceedings. The state may obtain warrants to search and seize materials in aid of a criminal investigation. This process is not available in civil proceedings, except to the extent that an Anton Piller order may be available and is seen in that way.[^18] In a criminal case, the prosecution has substantial disclosure obligations[^19] and the defence has very few obligations to disclose information and evidence to the prosecution.[^20]
[29] To put the point generally, investigation of criminal matters is generally unilateral – the state has powers to obtain evidence, and they do not, generally, include compelling a person under investigation to provide information. Investigation of civil matters is generally a bilateral process of compelled disclosure – where the parties are required to provide information and documents to each other but are generally not permitted to exercise the investigative powers available to the state in investigation of criminal matters.
[30] The motion judge found that information and documents compelled from the appellants in the civil proceedings prior to commencement of the contempt motion could be used against the appellants in the contempt motion. Specifically, he concluded that such use would not violate the appellants’ right not to be compelled as a witness in the contempt motion. The motion judge reasoned as follows:
a. Section 11(c) of the Charter provides: “any person charged with an offence has the right ... not to be compelled to be a witness in proceedings against that person in respect of the offence”.
b. The appellants cannot be compelled to testify in the contempt motion.[^21]
c. There is some authority that evidence that could be tendered against an alleged contemnor may not be gathered in the civil proceedings after commencement of a contempt motion until that motion has been concluded. This principle does not apply to information compelled prior to commencement of the contempt motion.[^22]
d. Information compelled under regulatory regimes may generally be used for enforcement proceedings in those regimes.[^23]
e. Information obtained in this case prior to the contempt motion was compelled in aid of the civil fraud proceedings – the cause in respect to which the Mareva order was made.
[31] The motion judge concluded that use of the Compelled Evidence did not compel the appellants to be witnesses in the contempt motion, and that this conclusion did not create a “gap” in the protection against testimonial compulsion that should be filled by s. 7 of the Charter (Decision, paras. 101 – 102):
The protections afforded by a Mareva order would be seriously impaired and, in some cases, entirely undermined if, when the defendant purports to comply with the order by giving a sworn statement of assets and is examined, and the defendant discloses that assets allegedly stolen and ordered to be frozen are, in fact, being dissipated, the evidence so given is inadmissible on a subsequent motion for contempt because of the residual application of s. 7 of the Charter. The very purpose of the provisions of the Mareva order requiring the statement of assets and examination thereon is to facilitate enforcement. The defendant who is subject to the order is well aware that a failure to comply may attract severe sanctions through an order for contempt of court. I regard as significant the fact that when Dr. Saad’s affidavits were given, and when he was examined, he was not facing jeopardy through a contempt motion. When this evidence was given, Dr. Saad had not been charged with an offence, and his evidence was not given in respect of an offence. The protections against self-incrimination in s. 11(c) and s. 13 do not apply in this context.
In my view, having regard to the context in which Dr. Saad’s affidavits were given and his examinations were held, the interests of our justice system in ensuring that there is an effective civil remedy to protect against, as Myers J. put in in Pronesti, “a rogue flouting the civil process of the court”, and the fact that the evidence was given before any contempt motion was brought, there is no residual gap to be filled by s. 7 of the Charter. To give s. 7 of the Charter the effect urged by Dr. Saad would open the door to evasion by wrongdoers of their obligations under Mareva orders and introduce an obstacle to enforcement that could render ineffective or, in some cases, illusory, the protections of a Mareva order.[^24]
I agree with this analysis.
[32] I would draw an analogy to situations where there are parallel administrative and enforcement powers, such as the enforcement scheme in the Income Tax Act.[^25] Taxpayers are required to provide information and documents in income tax returns. Tax authorities have administrative powers to compel information and documents, including, among other things, the power to audit books and records of a taxpayer. Where tax authorities pursue prosecution of an offence under the Income Tax Act, they may not use administrative enforcement powers, because they are conscriptive. Instead, they may have recourse to investigative powers associated with criminal prosecutions, such as search warrants. The taxpayer still has an obligation to file complete and accurate tax returns: these obligations are not suspended because of a nascent or actual prosecution.
[33] I note this point, not because it affects the disposition of this appeal, but to be clear that the motion judge’s decision does not open a pathway for use of compelled disclosure (whether pursuant to a Mareva order or pursuant to the Rules of Civil Procedure) for the purpose of obtaining evidence for a prosecution for contempt of court which is penal, rather than coercive, in nature. As is the case in enforcement of the Income Tax Act, compelled disclosure to ensure compliance with the Act is not inherently for the purpose of prosecution. The court has the power to restrain abuse of the civil justice process for the purpose of a penal contempt prosecution, and neither the decision below nor this decision on appeal holds otherwise.[^26]
[34] For these reasons I would not give effect to the first issue on appeal.
Issue 2: Did the motion judge err in holding that the Compelled Evidence is admissible in the contempt motion because a civil contempt motion is not “other proceedings” within the meaning of [s. 13](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
[35] The motion judge found that the contempt motion was brought within the civil proceedings and is not a separate proceeding. On this basis he found that s. 13 of the Charter does not apply to preclude use of information obtained in the civil proceeding in the prosecution of the contempt motion. The motion judge’s analysis leading to this conclusion was as follows:
a. Section 13 of the Charter applies to a civil contempt motion. It provides: “A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceeding, except in a prosecution for perjury or for the giving of contradictory evidence.”[^27]
b. An accused’s testimony on a first trial may not be placed into evidence as part of the Crown’s case in a subsequent re-trial: the subsequent re-trial is an “other proceeding” within the meaning of Charter, s. 13.[^28] However, this line of authority is distinguishable from the case at bar: the contempt motion is not a re-trial, but rather is an integral part of the ongoing civil proceedings.
c. Reliance on prior evidence in a civil proceeding in respect to current allegations of contempt has been both authorized and found to be essential to the due enforcement of court orders.[^29]
[36] The motion judge then concluded as follows (Decision, paras. 77 and 78):
The Saad Mareva Order prominently states that if Dr. Saad disobeys the order he may be held in contempt of court, and that any other person who knows of the order and does anything which helps or permits Dr. Saad to breach the terms of the order may also be held to be in contempt of court. The Saad Mareva Order required Dr. Saad to provide to the plaintiffs within 10 days a sworn statement detailing the nature, value and location of his assets worldwide and to submit to examination under oath within 10 days of the delivery of the sworn statement. The purpose of the term requiring a sworn statement of assets is to facilitate enforcement of the order restraining any dealings with Dr. Saad’s worldwide assets. The purpose of the term providing for examination of Dr. Saad under the Saad Mareva Order is to allow the plaintiffs to test the accuracy and truthfulness of the sworn statement of assets and to facilitate actions to prevent assets that they claim were fraudulently taken from being dissipated.
When I consider the purpose of a Mareva order such as the Saad Mareva Order, it is clear that the sanction of an order for contempt of court stated on the face of the Commercial List Model Order for violating the Mareva order by making a false declaration of assets or dissipating assets is an integral part of a civil proceeding, one that allows the court to enforce its own process. The fact that a contempt motion is quasi-criminal and that the remedy for contempt may include punishment through a fine, or even imprisonment, does not, in my view, make a contempt motion made in a civil proceeding for the alleged violation of an order made in that proceeding “other proceedings” under s. 13 of the Charter. In support of this conclusion, I rely on McClure, which I regard as correctly decided, and the authorities which have followed it.[^30]
[37] I agree with this reasoning and this conclusion. I would add one point. It is good practice to include a warning in a Mareva order respecting the potential consequences of breaching the order. However, it is not necessary: in our society, governed by the Rule of Law, everyone is required to obey a court order, and consequences (including a finding of contempt) may follow if the order is breached. I do not take the motion judge to have concluded otherwise: his reference to the warning in the Mareva order is part of his conclusion that the order, its terms and its enforcement, are all part of the same proceeding, a conclusion with which I agree.
[38] The contempt motion is not an “other proceeding” from the civil proceeding in which it has brought within the meaning of s. 13 of the Charter. I would not give effect to this ground of appeal.
Issue #3: Did the motion judge err in holding that answers and documents provided after the contempt motion was brought, in response to undertakings given before the contempt motion was brought, are inadmissible in the contempt motion, pursuant to [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)?
and
Issue #4: Did the motion judge err in holding that the appellants are not required to produce certain documents while the contempt motion is outstanding, and in adjourning the production motion until after the contempt motion has been decided on the basis that [s. 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) prevents the compulsory production of pre-existing documents for use on the contempt motion?
[39] I address these issues together because they turn on the same principles.
[40] As explained above, the obligation to provide documents and information arises from the terms of the Mareva order and the Rules of Civil Procedure. That order is still in effect, and of course the Rules still apply, and the appellants are required to comply with their disclosure obligations in the civil proceedings. These requirements are not stayed because a contempt motion is initiated.
[41] In the context of this case, the contempt motion was brought on the basis that the appellants were using funds for their living expenses and for their legal costs without obtaining prior authorization to so do from the court. The goal of the contempt motion is to put an end to this alleged conduct, and to have the appellants seek an appropriate order from the court, tailored to the circumstances of the case, for access to resources to meet Dr Saad’s reasonable needs.
[42] If the respondents had brought a motion seeking a remedy for “non-compliance” with, rather than “contempt” of, the Mareva order, perhaps some of the current difficulties – and resulting litigation delay– could have been avoided. As noted by Steele J. in McClure (at p. 3 of 6), many enforcement proceedings, including a civil contempt motion “are not penal but are coercive proceedings with respect to orders and judgments of the court to allow the court to enforce its process.” Not all non-compliance rises to the level of contempt of court, and even where it may, obtaining current and ongoing compliance is often the predominant goal.
[43] I appreciate that there are circumstances where “non-compliance” may justify a finding of contempt and a custodial sentence, because of the nature of the non-compliance and its impact on the court’s ability to do justice at the end of the case, or to the ongoing process of the litigation. Currently, in this case, the issue is a question of the extent to which the appellants may use resources to fund Dr Saad’s day-to-day expenses and legal costs, and the oversight of the court in respect to those questions. The contempt motion, at this stage in the case, is towards the “coercive” rather than the “penal” end of the spectrum of civil contempt proceedings.
[44] Further, even in contempt proceedings at the “penal” end of the spectrum, a moving party is not precluded from building their case for contempt after they have commenced a contempt motion. In the administrative context, where an investigation has become predominantly “criminal” rather than “administrative”, the state’s administrative investigative powers may be curtailed, but recourse to search and seizure authorized by a warrant is still available. In the context of a civil contempt motion, where the court concludes that the matter is predominantly “penal” and protections against self-incrimination and the right to silence preclude further compelled disclosure, alternative means for gathering evidence may still be available, such as an Anton Piller order or an order for third party production. It is not the case that a moving party’s ability to assemble evidence is brought to a halt by commencing a contempt motion.
The Decision of the Motion Judge
[45] The motion judge concluded that previously disclosed documents and information compelled pursuant to the Mareva order could be used on the contempt motion (Issues 1 and 2, above), but that no further documents or information could be compelled from the appellants and used against them until the contempt motion was decided. To require the appellants to produce documents and information that could be used against them, in the face of the contempt motion, would conscript them to give evidence that could be used against them, violating their right not to be compelled to testify. In support of this position the motion judge cited a line of trial-level authority.[^31] The motion judge reasoned as follows (Decision, paras. 161 – 164):
When the plaintiffs brought their motion for a contempt order against Dr. Saad and Mohammed on August 27, 2021, their rights under the Charter, under common law, and by statute were engaged. If the undertakings had been answered before the contempt motion was brought, the evidence so given would be treated in the same way as the affidavit evidence given by Dr. Saad and his evidence on his examinations. Although Dr. Saad gave undertakings before the contempt motion was brought that remain unfulfilled, he is no longer in the same position as he was when the undertakings were given. Undertakings may be answered in writing, but the examining party often requires the deponent to re-attend to be examined to answer undertakings viva voce and to answer proper questions arising therefrom.
The plaintiffs’ motion to compel answers to undertakings is, in my view, effectively a motion to compel Dr. Saad to re-attend to answer further questions. In this context, where the plaintiffs decided to bring a motion for contempt of court, to compel Dr. Saad to assist the plaintiffs in the prosecution of the contempt motion by answering questions would infringe the principle against self-incrimination that is protected by s. 7 of the Charter. Where the purpose of obtaining the answers to undertakings is, at least in part, to allow this evidence to be used on the contempt motion, there is scope for the residual protection of the right against self-incrimination under s. 7 of the Charter. The concerns raised by Myers J. in Lonnenberg[^32] are, in my view, valid, and they apply on these motions.
The plaintiffs emphasize that the undertakings pre-exist the contempt motion and that answers are required to give effect to the purposes of the Saad Mareva Order. The plaintiffs point out that some of the undertakings have been outstanding for months, and that to suspend Dr. Saad’s obligation to fulfill his undertakings would reward him for his delay in providing answers.
I agree that Dr. Saad should not be relieved of his obligation to answer undertakings given before the contempt motion was brought. His Charter protection does not extend beyond protecting his right against self-incrimination on the contempt motion. Dr. Saad should answer the undertakings forthwith, provided that the information included in the answers so given and information derived therefrom are inadmissible in the contempt proceeding. Provision of the answers does not constitute a waiver of Dr. Saad’s rights in the contempt motion.
I agree with all of this, other than the phrase “provided that the information included in the answers so given and information derived therefrom are inadmissible in the contempt proceeding” (the “Admissibility Ruling”).
[46] In respect to further requests for production of documents, the motion judge considered a line of authorities[^33] to the effect that documents compelled prior to criminal proceedings, for other lawful purposes, are not inadmissible in subsequent criminal proceedings. The motion judge then considered R. v. Jarvis, upon which the appellants relied, in support of the proposition that when an investigation shifts from administrative to criminal in nature, administrative powers may no longer be used to compel a taxpayer to provide documents and information, in violation of their right to remain silent.[^34] The motion judge then concluded as follows (the “Production Ruling”):
The Court in Jarvis did not provide for an exception to the taxpayer’s Charter rights where the documents required from the taxpayer exist independently of any state compulsion.
I do not agree that Branch[^35] is authority for the proposition that where documents exist independently of any state compulsion, the principle against self-incrimination under the Charter does not apply. The plaintiffs have brought a contempt of court motion seeking remedies against Dr. Saad and Mohammed. The plaintiffs having done so, the Charter rights of Dr. Saad and Mohammed are engaged. The plaintiffs cannot conscript Dr. Saad and Mohammed to assist in the prosecution of the contempt motion against them by compelling them to assemble and produce documents which the plaintiffs reserve the right to use to convict them of contempt of court.
This conclusion applies to both Dr. Saad and Mohammed. Although the documents sought from Mohammed are sought under the Mohammed Mareva Order and the contempt motion against Mohammed is brought in respect of the Saad Mareva Order, the plaintiffs reserve the right to use any documents produced by Mohammed to aid in the prosecution of the contempt motion against him. In these circumstances, the principle against self-incrimination under the Charter is engaged in respect of Mohammed and Dr. Saad.
Mohammed is not required to produce the requested documents to the plaintiffs for use on the contempt motion.
I agree with the motion judge’s analysis except for one core point: an allegation of contempt does not transform proceedings from civil to criminal unless the court also finds that the contempt allegation is predominately penal rather coercive. If the contempt motion is predominantly coercive, then the nature of the proceedings has not been “transformed” to criminal.
[47] The problem with the Admissibility Ruling and the Production Ruling are their apparent inconsistency, in principle, with the motion judge’s decision respecting Issues 1 and 2. It is clear that the motion judge wrestled with this problem, and he correctly concluded that the weight of authority supported drawing a distinction between compelled evidence provided prior to an allegation of contempt and compelled evidence provided after an allegation of contempt. This context does matter, but it does not determine the issue.
[48] First, the motion judge is correct in finding that the Mareva order continues in force and the appellants’ obligations thereunder likewise continue. On the basis of the Mareva order, undertakings must be answered and information and documents provided.
[49] Second, until the respondents seek to rely on information and documents compelled from the appellants in support of the contempt motion, the court need not rule on the admissibility of that evidence.
[50] Third, if the respondents do seek to rely on information and documents compelled from the appellants and provided by them after commencement of the contempt motion, at that time the court should assess the “predominant purpose” of the contempt motion, by analogy to R. v. Jarvis.[^36] If the court finds that the predominant purpose of the contempt motion is “coercive” rather than “penal” then the evidence may be compelled and will not be inadmissible because it is conscriptive.[^37] If the court finds that the predominant purpose of the contempt motion is penal, then the moving party may pursue alternative approaches to obtain evidence for the contempt motion.
Order
[51] For these reasons I would dismiss the appeal, allow the cross-appeal, and set aside the Admissibility Ruling and the Production Ruling, with costs payable by the appellant / cross-respondent to the respondents / cross-appellants, fixed at $40,000, inclusive, payable within thirty days.
“D.L. Corbett J.”
I agree: “Sweeny R.S.J.”
I agree: “Nishikawa J.”
Released: April 25, 2023
CITATION: Sakab Saudi Holding Company v. Saad Khalid S Al Jabri, 2023 ONSC 2488
DIVISIONAL COURT FILE NO.: 936/21
DATE: 20230425
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sweeny R.S.J., D.L. Corbett and Nishikawa JJ.
BETWEEN:
Sakab Saudi Holding Company et al.
Respondents / Cross-Appellants
- and -
Saad Khalid S Al Jabri et al.
Appellant / Cross-Respondent
REASONS FOR DECISION
D.L. Corbett J.
Released: April 25, 2023
[^1]: Five motions were before the motion judge, which are described at para. 4 of his reasons. This appeal only concerns aspects of the Compelled Evidence motion and the Prospective Evidence motion.
[^2]: Courts of Justice Act, RSO 1990, c. C.34, s.19(1)(b).
[^3]: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 37; Housen v. Nikolaisen, [2002] SCR 235, paras. 8, 10, 19, 26-37.
[^4]: Respondents’ Factum, para. 21.
[^5]: 2022 ONSC 150, para. 2 [Lederer, Matheson and Copeland JJ.].
[^6]: 2021 ONSC 7681, paras. 44-52.
[^7]: Carey v. Laiken, 2015 SCC 17, para. 30; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, para. 35; United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901 at 931, per McLachlin J. (as she then was).
[^8]: United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901 at 931, per McLachlin J. (as she then was).
[^9]: Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg Producers, 2011 ONSC 3650, per Lauwers J. (as he then was), quoting with approval from Cumming J., after citing United Nurses of Alberta v. Alberta (Attorney General), 1992 99 (SCC), [1992] 1 S.C.R. 901, paras. 50-51 and quoting with approval from Pepall J. (as she then was), as quoted in EchoStar Communications Corp. v. Rodgers, 2010 ONSC 2164, 97 C.P.C. (6th) 177, para. 26, per Cameron J., and Blair J. (as he then was) in Surgeoner v. Surgeoner (1992), 6 C.P.C. (3d) 318 at 319 (Gen. Div.).
[^10]: Pronesti v. 1309395 Ontario Ltd., 2015 ONSC 1139, para. 31, per Myers J.
[^11]: Carey v. Laiken, 2015 SCC 17, para. 42; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, para. 35.
[^12]: Vale Inco Ltd. v. U.S.W., Local 6500, 2010 ONSC 3039, para. 3, per Gordon J.
[^13]: Toronto Transit Commission v. Ryan (1998), 1998 14635 (ON SC), 37 O.R. (3d) 266 at 270, per Ferrier J. (Gen. Div.), cited with approval in 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951, para. 37, per van Rensburg J.A.
[^14]: Carey v. Laiken, 2015 SCC 17, para. 36.
[^15]: Mareva Compania Naviera SA v. International Bulkcarriers SA, [1980] 1 All ER 213; Aetna Financial Services Ltd. v. Feigelman, 1985 55 (SCC), [1985] 1 SCR 2.
[^16]: Anton Piller KG v. Manufacturing Processes Ltd., [1976] 1 Ch. 55; Nintendo of America, Inc. v. Coinex Video Games Inc., 1982 5251 (FCA), [1983] 2 FC 189 (CA); Celanese Canada Inc. v. Murray Demolition, 2006 SCC 36.
[^17]: Ridgewood Electric Ltd. (1990) v. Robbie (2005), 2005 3946 (ON SC), 74 O.R. (3d) 514 (SCJ).
[^18]: The usual purpose of an Anton Piller order is to preserve evidence and property, not to furnish evidence for a contempt motion.
[^19]: R. v. Stinchcombe, [1991] 3 SCR 45.
[^20]: for example, the defence must disclose information they intend to adduce where a complainant has a privacy interest in that information (Criminal Code, s.278.92; R. v. JJ, 2022 SCC 28), information respecting defence experts (Criminal Code, s.657.3), evidence in support of a third party suspect, or alibi evidence
[^21]: Vidéotron Ltée v. Industries Microlec produits électriques Inc., 1992 29 (SCC), [1992] 2 SCR 1065; Lonnenberg v. Orca, 2021 ONSC 4886.
[^22]: Lonnenberg v. Orca, 2021 ONSC 4886.
[^23]: R. v. Fitzpatrick, 1995 44 (SCC), [1995] 4 SCR 154.
[^24]: Pronesti v. 1309395 Ontario Ltd., 2014 ONSC 7303.
[^25]: Income Tax Act, RSC 1985, c. 1 (5th Supp.).
[^26]: See R. v. Jarvis, [2002] 3 SCR 73.
[^27]: See R. v. Nedelco, 2012 SCC 59, paras. 5-9.
[^28]: See R. v. Dubois, 1985 10 (SCC), [1985] 2 SCR 350, paras. 44, 75; R. v. Henry, 2005 SCC 76, paras. 39-40.
[^29]: McClure v. Backstein, [1987] OJ No. 498, 17 CPC (2d) 242, para. 9 (HCJ), per Steele J. See also Blatherwick v. Blatherwick, 2016 ONSC 2902, per Ricchetti J. (as he then was), Brit Corp. v. Trumbari Containers Ltd., 2005 CarswellOnt 3035, per Mackenzie J., Merck & Co. v. Apotex Inc., 1996 4019 (FC), [1996] 2 FC 223, para. 49, per McKay J. (FC TD), ASICS Corp. v. 9153-2267 Québec inc., 2017 FC 5 (FC TD). These authorities have not been overruled by Nedelco, Henry and Dubois (cited in the previous two footnotes).
[^30]: McClure v. Backstein, [1987] OJ No. 498, 17 CPC (2d) 242, para. 9 (HCJ), per Steele J.
[^31]: Oesterlund v. Pursglove, 2015 ONSC 6145; Lonnenburg v. Onca, 2021 ONSC 4886.
[^32]: Lonnenburg v. Onca, 2021 ONSC 4886.
[^33]: British Columbia (Securities Commission) v. Branch, 1995 142 (SCC), [1995] 2 SCR 3; Thomson Newspapers Ltd. v. Canada, 1990 135 (SCC), [1990] 1 SCR 425; R. v. Fitzpatrick, 1995 44 (SCC), [1995] 4 SCR 154; and R. v. D’Amour (2002), 2002 45015 (ON CA), 166 CCC (3d) 477 (Ont. CA).
[^34]: R. v. Jarvis, [2002] 3 S.C.R. 73.
[^35]: British Columbia (Securities Commission) v. Branch, 1995 142 (SCC), [1995] 2 SCR 3.
[^36]: R. v. Jarvis, [2002] 3 S.C.R. 73.
[^37]: R. v. Jarvis, [2002] 3 S.C.R. 73.