Court File and Parties

CITATION: Al Jabri v. Sakab Saudi Holding Company et al., 2026 ONSC 307

DIVISIONAL COURT FILE NO.: 777/24

DATE: 2026-01-16

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: SAAD KHALID S AL JABRI And MOHAMMED SAAD KH AL JABRI, Appellants AND: SAKAB SAUDI HOLDING COMPANY, ALPHA STAR AVIATION SERVICES COMPANY, ENMA AL ARED REAL 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 and NEW DAWN CONTRACTING COMPANY, Respondents

BEFORE: Sachs, Backhouse and Matheson JJ.

COUNSEL: Sean Pierce and Greta Hoaken, for the Appellants Munaf Mohammed, KC, Douglas A Fenton and Miranda Cooper, for the Respondents

HEARD at Toronto: January 14, 2026

Endorsement

[1] This is an appeal from a portion of the order of Cavanagh J. dated December 2, 2024 (the “Order”) directing that the Appellants disclose the identity of third parties who have helped them finance their living expenses. The motion was brought in the context of a request by the Appellants to vary the Mareva injunctions that applied to them to permit funds to pay for living and legal expenses. This appeal relates only to the Order in relation to living expenses.

[2] The extensive interlocutory steps and background in this litigation need not be recited in detail here. They begin with the granting of an ex parte Mareva injunction against the appellants and others in January 2021 and are documented in decisions of the Superior Court, this Court and the Court of Appeal. The underlying action alleges a massive international civil fraud. The fraud claim is disputed. The trial of the action is scheduled for this spring.

[3] Cross-examinations were conducted in relation to the motion to vary to pay for living and legal expenses. There was then a refusals motion, giving rise to the Order. The Appellants argued that disclosing the identity of the third parties who helped them finance their expenses would cause a risk to the personal safety of those third parties. The Order required that those questions be answered. Therefore, the identities of those funders would be provided to the respondents.

[4] It is acknowledged by all parties that the motion judge failed to deal with the personal safety issue. It is further acknowledged that this failure constitutes an error in his decision.

[5] On consent, fresh evidence has been admitted about the steps taken after the Order was made, pending this appeal. The parties reached an agreement under which the Appellants would provide the identity information under what has been referred to as a “counsels’ eyes-only” agreement. The respondents’ counsel was then provided with the identity of the third-party funders. The agreement not to share that information with the Respondent companies expires within seven days of an unsuccessful decision in this Court.

[6] The identity information was disclosed to the Respondents’ counsel under the agreement and the motion to vary the Mareva injunctions moved forward. The motion to vary was granted in March 2025.

[7] The Respondents submit that because the underlying lis between the parties has been decided, this appeal is now moot. They further submit that even though the purpose of the requested disclosure (to resist the motion to vary) no longer exists, they should be able to use the identity information for other purposes. The appellants submits that the appeal is not moot because there remains the security risk to those third parties, which is the issue on this appeal.

[8] As described by the Supreme Court of Canada in Borowski v. Canada (Attorney General), 1989 123 (SCC), [1989] 1 S.C.R. 342, at para. 15, mootness “applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties.” This requires that the court undertake a two-step analysis: It is “first necessary to determine whether the requisite tangible and concrete dispute has disappeared rendering the issues academic” and, if so, “it is then necessary to decide if the court should exercise its discretion to hear the case”: Borowski, at para. 16.

[9] In this case there is clearly a controversy that may affect the rights of the parties and it is the issue that underlies the appeal – namely, whether disclosing the names of the third party funders will cause a risk to the personal safety of those funders. The counsels’ eyes-only agreement did not determine that issue; it only allowed the matter to proceed pending a determination of the Appellants’ appeal to this Court. Under the terms of that agreement, when it expires counsel have the right to disclose the identity of those third parties to the Respondents and have made it clear that they intend to do so. However, if it can be argued that this is a right that does not affect the parties, only the funders, given the interests at stake (personal safety) we would exercise our discretion to hear the appeal in spite of its possible mootness.

[10] The Respondents have essentially conceded that if the appeal is heard it must be allowed. We agree. Thus, the only remaining issue is remedy. Both counsel urged this Court to determine the factual issue underlying the appeal – namely have the Appellants demonstrated that there is a risk to the physical safety of the third party funders if their names are disclosed. The Appellants took us through evidence they rely on about the safety issues and severe consequences that people with connections to them have been through since the commencement of the dispute giving rise to this litigation. The Respondents submit that they are companies that did not cause that harm and have no independent knowledge of it.

[11] We agree that we have the jurisdiction to make the safety determination. However, we find that this is a situation where the interests of justice would be better served by remitting the matter back to the motion judge. We do so because the motion judge is the case management judge in this matter. In this capacity he has heard a number of motions relating to this case, which in turn has given him a deep appreciation of the issues and ongoing status of the underlying litigation. He is aware of the eyes-only agreement, which was put before him as shown in the fresh evidence. Further, there is no suggestion that he has been anything other than completely responsive to the demands of this case, dealing with the many issues that counsel have raised that had to be determined before the case could be tried on the merits. That trial is now set for April. We have complete confidence that remitting this matter back to the motion judge will not jeopardize that trial date.

[12] For these reasons, the appeal is allowed with respect to that aspect of the Order directing the Appellants to answer questions regarding the identity of the third parties who are paying for the Appellants’ living expenses. That aspect of the Order is set aside and the matter is remitted back to the motion judge for a determination of whether there is a risk to the personal safety of the third party funders if the names of those funders are disclosed and if so what order should be made. Until such time as the motion judge makes his decision on this issue, the names of those funders shall not be disclosed to the Respondents.

[13] The Respondents shall pay the Appellants costs fixed at $20,000 for this appeal and $5,000 for the motion for leave to appeal, all inclusive. The quantum of the motion costs was agreed on.

[14] The costs of the Respondents’ unsuccessful motion for leave to appeal the same Order were reserved to us. On that motion, the Respondents shall pay the Appellants costs fixed at the agreed amount of $5,000, all inclusive.

Sachs J.

Backhouse J.

Matheson J.

Date: January 16, 2026