COURT FILE NO.: CV-20-1697

DATE: August 25, 2020

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF THE ESTATE OF MALAK MOURSEL aka MALAKI BREICH

RE: London Life Insurance Company, Applicant AND: Malik Moursel aka Malik Samih Moursel aka Malik Samih Mersl and, Giselle Lisa L. El-Hassanie, Respondents

BEFORE: Kurz J.

COUNSEL: Joanne Lagoudis, for the Applicant

HEARD: In writing

ENDORSEMENT

[1] On October 19, 2019, I read the motion of the respondent, Giselle Lisa L. El-Hassanie (“Giselle”), to have the proceeds of the life insurance policy of the respondents’ mother (“the mother”) paid out to her as the estate trustee. They had previously been paid into court. Giselle asked that notice of her motion upon her step-brother and co-respondent (“Malik) be dispensed with. Malik is both the sole beneficiary of the mother’s insurance policy and the man convicted of her murder. That conviction came in a Lebanese court on September 9, 2016 and was upheld on a Lebanese appeal.

[2] In my October 19, 2019 endorsement, I required Giselle to explain why service on her step-brother should be dispensed with because it would be, in her words, “impractical under the circumstances”. She did not, at the time, explain why that is the case.

[3] Giselle has now responded with an affidavit dated February 7, 2020, that was just brought to my attention, likely because of the pandemic. In that affidavit, she offered three reasons that it would be impractical to serve Malik:

1. Malik is disentitled to any of the insurance proceeds because of his conviction for the mother’s death;
2. Notice of Giselle’s application to be appointed the mother’s estate trustee was dispensed with by another justice of this court; and
3. Malik’s father may cause her harm because he glared at her during Malik’s trial. Accordingly, she fears that he may try to revenge her son’s conviction if he is advised of Giselle’s motion.

[4] The first two explanations that Giselle offers are non-sequiturs when considering the practicality of service. I was aware of both Malik’s conviction and the order dispensing with service of Giselle’s application to be appointed estate trustee. My October 19, 2019 endorsement actually referred to the “slayer rule” and the principle of “ex turpi causa” (i.e. that one cannot profit from one’s crime). However none of that speaks to the issue of the alleged impracticality of serving Malik. While another judge dispensed with service on Malik, based on materials that are not before me, that does not make service of Giselle’s motion on Malik impractical.

[5] The third answer is speculative in the extreme. The fact that Malik’s father glared at Giselle at his son’s trial, and no more, offers no proof that he will “…attempt to avenge his son‘s conviction if notice of this motion is brought to his attention.” A dirty look is not a threat. If Malik’s father has not yet attempted to avenge his son’s conviction on Giselle, almost four year after his conviction, it is unlikely that this motion will act as a spur to violence for the man. Further, Malik’s father is in Lebanon and Giselle is in Canada. It would be very difficult for Malik’s father to harm her from half a world away, at a time where Covid-19 makes travel to Canada from that part of the world near impossible.

[6] I see no reason that Giselle cannot serve Malik. She has offered no evidence of an inability to serve him or even that such service is impractical.

[7] I recognize that Malik is in an unknown Lebanese prison. I do not know how he could be served there. But Giselle has offered me no suggestions as to how she would even try. Nor has she given me evidence of why she cannot try. I note that Malik had a criminal lawyer. That may be a first step.

[8] In my previous endorsement, I recognized that, in light of the conviction, this is likely a straightforward case. But in Canada, even convicted murderers have rights. The Rules of Civil Procedure do not disentitle them to notice of civil proceedings that involve them, even if they arise from the murderer’s own acts.

[9] Further, while I know virtually nothing about the facts of the mother’s death, I cannot ignore the fact that Malik’s conviction was issued by a Lebanese court. Lebanon is not a nation noted for its adherence to the rule of law. The World Justice Project rates Lebanon 96th in the world (out of 128 nations) in its Rule of Law Index (https://worldjusticeproject.org/sites/default/files/documents/WJP-ROLI-2020-Online_0.pdf). Lebanon was given a score of 0.45 out of 1 on that index. Canada, by comparison, was ranked 9th in the world, with a score of 0.81.

[10] By way of further comparison, two other nations with better scores than Lebanon on the Rule of Law Index are Russia (number 94, with a score of 0.47) and China (number 88, with a score of 0.48). The lowest score goes to 128th rank Venezuela, with a score of 0.27.

[11] I also note that the recent explosion at the Beirut port has raised many questions about the integrity of the Lebanese judicial system.

[12] None of this is to comment about the validity of Malik’s conviction or the pain that the mother’s murder has brought to her family. I am not in a position to speak to those issues. Rather, I am not willing to simply waive Malik’s right to notice in a Canadian civil proceeding based only on that Lebanese conviction.

[13] Accordingly, Giselle will arrange to either serve Malik personally or by an alternative to personal service. I note that Lebanon is not a party to the Hague Service Convention, so its rules do not apply.

[14] If Giselle is unable to serve Malik in that manner, she may apply for an order of substituted service. In that event, she will bring my two endorsements to the attention of the court. I am no longer seized with this motion.

[15] Giselle’s request to dispense with service is dismissed. The balance of her motion is adjourned to an indefinite date, returnable on seven days’ notice, to allow for service.

[16] In the circumstances of the COVID-19 emergency, this endorsement is deemed to be an Order of the Court that is operative and enforceable from the time of its release without any need for a signed or entered, formal, typed Order.

“Marvin Kurz J.” Electronic signature of Justice Marvin Kurz, Original will be placed in court file

Dated: August 25, 2020