Sakab Daudi Holding Company v. Al Jabri, 2021 ONSC 7681

COURT FILE NO.: CV-21-00655418-00CL

DATE: 20211119

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

SAKAB DAUDI 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, NEW DAWN CONTRACTING COMPANY and SKY PRIME INVESTMENT COMPANY

Munaf Mohamed Q.C., Jonathan Bell, and Amanda McLachlan, for the Plaintiffs

Plaintiffs

– and –

SAAD KHALID S AL JABRI, DREAMS INTERNATIONAL ADVISORY SERVICES LTD., 1147848 B.C. LTD., NEW EAST (US) INC., NEW EAST 804 805 LLC, NEW EAST BACK BAY LLC, NEW EAST DC LLC, JAALIK CONTRACTING LTD., NADYAH SULAIMAN A AL JABRI, personally and as litigation guardian for SULIMAIN SAAD KHALID AL JABRI, KHALID SAAD KHALIOD 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.

Defendants

Patrick Flaherty, Stuart Svonkin, and Sean Pierce for Defendant Dr. Saad Aljabri on the Plaintiffs’ contempt motion

John J. Adair for the Defendants Saad Khalid S Al Jabri, Nadyah Sulaiman A Al Jabbari, personally and as litigation guardian for Sulaiman Saad Khalid Al Jabri, Khalid Saad Khalid Al Jabri, Naif Saad Kh Al Jabri, Hissah Saad Kh Al Jabri, 1147848 B.C. Ltd., and 2701644 Ontario Inc.

Harry Underwood and Andrew Max, for Defendants Mohammed Saad Kh Al Jabri, Dreams International Advisory Services Ltd., New East (US) Inc., New East 804 805 LLC, New East Back Bay LLC, New East DC LLC, Golden Valley Management Ltd., Ten Leaves Management Ltd. and New East International Limited

HEARD: October 20 and 21, 2021

CAVANAGH J.

REASONS FOR JUDGMENT

Introduction

[1] There are five motions before me in this action.

[2] Each motion relates to a separate motion brought by the plaintiffs against the defendants Saad Khalid S Al Jabri (“Dr. Saad”) and Mohammed Saad Kh Al Jabri (“Mohammed”), for a declaration that they are in contempt of an order of Gilmore J. dated January 22, 2021, as extended (the “Saad Mareva Order”).

[3] The plaintiffs allege in the Notice of Motion for the contempt motion that Dr. Saad and Mohammed intentionally engaged in conduct in breach of the Saad Mareva Order by using assets frozen by the Saad Mareva Order for funding Dr. Saad’s ordinary living expenses and the legal expenses he has incurred in Ontario, the United States, and a number of other foreign jurisdictions.

[4] The following motions are before me:

(a) A motion by Dr. Saad for an order striking out portions of the plaintiffs’ motion materials for their contempt motion on the ground that these materials are inadmissible, and staying his obligation to provide further evidence in this action until the contempt motion is concluded or he decides to waive his rights.

(b) A motion by the plaintiffs for (i) an order requiring Dr. Saad to answer undertakings given and produce documents subject to those undertakings given on the cross-examination on his affidavit detailing the nature, value and location of his worldwide assets, (ii) an order compelling Mohammed to produce non-privileged documents that are relevant to the Order of Koehnen J. dated August 9, 2021 in which he ordered a worldwide Mareva injunction against Mohammed, and (iii) an order compelling Dr. Saad and Mohammed to produce documents disclosing factual, non-privileged, information contained in the trust ledgers of their respective lawyers’ law firms.

(c) A motion by Dr. Saad pursuant to Rule 21 of the Rules of Civil Procedure seeking a determination, as a matter of law, that prior judicial reasons issued earlier in this action (i) do not have preclusive effect in the contempt proceeding; and (ii) in any event, are inadmissible in the contempt proceeding as evidence to prove the plaintiffs’ allegations.

(d) A motion by Dr. Saad for an order that the plaintiffs comply with their disclosure obligations triggered by their contempt motion.

(e) A motion by Mohammed for an order staying the plaintiffs’ contempt motion scheduled to be heard on February 3 and 4, 2022, pending the full and final determination of his appeal to the Court of Appeal (scheduled for argument on January 19, 2022) from the order of Gilmore J. dated June 22, 2021 dismissing his motion challenging the jurisdiction of the Ontario court over him.

[5] I first describe the procedural background relevant to these motions. I then address each motion.

Procedural Background

Plaintiffs’ claim

[6] The plaintiffs are companies that were established and funded by the Kingdom of Saudi Arabia’s Ministry of Finance for counter-terrorism activities.

[7] Dr. Saad is alleged to be a former high-ranking government official of the Kingdom of Saudi Arabia (“KSA”) who previously held the role of Director of the Department of Officers and Personnel Affairs and was a Security Advisor in Saudi Arabi’s Ministry of the Interior.

[8] Mohammed is Dr. Saad’s son.

[9] In their statement of claim issued on January 22, 2021, the plaintiffs allege that Dr. Saad was the directing mind of a fraudulent scheme by which he (with the assistance of others) defrauded the plaintiffs of approximately USD $3.5 billion.

[10] The plaintiffs allege that a key feature of the fraudulent scheme is Dr. Saad’s use of “nominees” and “cut-outs” - including family members (such as his son, Mohammed) and close business associates - to hide his ultimate control and beneficial ownership of significant assets.

[11] The plaintiffs allege that Dr. Saad personally received at least USD 488 million and conspired to hide these funds in various jurisdictions around the world through corporate structures and nominees, including entities notionally controlled by Mohammed.

Dr. Saad’s Statement of Defence

[12] In his Statement of Defence dated July 16, 2021, Dr. Saad denies that he defrauded the plaintiffs.

[13] Dr. Saad maintains that as a former high-ranking Saudi government official, he was tasked by members of the Saudi Royal Family with carrying out counter-terrorism activities that exposed him and his family to serious risk of grievous harm and death. He asserts that funds paid to him by the plaintiffs were provided and authorized by the Saudi government and used for counter terrorism purposes and to compensate him for his faithful and hazardous service.

[14] Dr. Saad pleads that the plaintiffs’ action is part of an improper and abusive course of conduct by Mohammed bin Solman, who was installed as Crown Prince of Saudi Arabia following a palace coup in 2017, to harm and intimidate Dr. Saad because he was a key supporter of the prior Crown Prince Mohammed bin Nayef, who was deposed and disappeared by Mohammed bin Solman. Dr. Saad pleads that Mohammed bin Solman, who directs and controls the plaintiffs, is misusing the court process for improper ends after having failed to have Dr. Saad executed by a Saudi death squad dispatched to Canada for that purpose.

Saad Mareva Order

[15] On January 22, 2021, Justice Gilmore granted the Saad Mareva Order enjoining Dr. Saad from dealing with any of his worldwide assets, which expressly include assets held by third parties on his behalf. Justice Gilmore was satisfied that the evidence established a strong prima facie case of fraud.

[16] Dr. Saad brought a motion to set aside the Saad Mareva Order that was heard on February 19, 2021 and dismissed on March 11, 2021. The Saad Mareva Order was continued to trial.

[17] The Saad Mareva Order expressly enjoins Dr. Saad, and anyone acting on his behalf, from “dealing with any of [Dr. Saad’s] assets, or any assets in which he has any type of interest, wherever situate”. The Saad Mareva Order also expressly freezes assets held by third parties on Dr. Saad’s behalf, and any assets in which he retains any form of beneficial interest.

[18] The Saad Mareva Order contains a provision requiring Dr. Saad to prepare and deliver a sworn statement of assets detailing the nature, value and location of his worldwide assets (including assets held by third parties on his behalf) within 10 days and to submit to cross-examination on the sworn statement within 10 days of delivery.

Dr. Saad provides asset disclosure and is cross-examined

[19] Dr. Saad provided asset disclosure in early February 2021 by delivering two sworn statutory declarations of 85 pages.

[20] On his initial cross-examination on February 11, 2021, Dr. Saad responded to a question about his assets. He stated that on June 21, 2017 he wrote his son, Mohammed, a “gift deed” to give him all of his assets (apart from private, personal, bank accounts). In response to an undertaking, Dr. Saad provided a sworn declaration that on June 21, 2017, in response to a shift in the political landscape in Saudi Arabia, he wrote the text of a written declaration (the “Gift Deed”), appended to his sworn declaration, which states that Dr. Saad has transferred to Mohammed all that he owns, except individual bank accounts in his name or any of his already-existing trusts, or those that are in the process of being finalized.

[21] Dr. Saad later stated that, in fact, he had gifted his worldwide assets to Mohammed “by way of verbal instructions on June 21, 2017 in Bodrum, Turkey, in accordance with customary Islamic law”. Mohammed gave evidence that only he and Dr. Saad were present for the oral gift. Dr. Saad stated that he prepared the Gift Deed in December 2018 in Toronto to “memorialize” the oral gift for tax purposes.

Continued cross-examination of Dr. Saad; Ruling by Associate Justice Robinson on refusals

[22] On his initial cross-examination, Dr. Saad objected to answering a number of questions. The examination was adjourned so that the parties could seek directions from the Court about the proper scope of cross-examination.

[23] The decision of Associate Justice Robinson on this motion was released on May 28, 2021. Associate Justice Robinson identified the topics that are relevant for purposes of the cross-examination on Dr. Saad’s declarations of assets. Associate Justice Robinson described the ultimate disposition as representing some divided success, although, in his view, the plaintiffs had been substantially successful.

Action as against Mohammed

[24] Following and as a result of Dr. Saad’s testimony regarding his gift to Mohammed, the plaintiffs moved on February 16, 2021 to vary the Saad Mareva Order to expressly capture all assets gifted to Mohammed.

[25] In response, Mohammed brought a motion asserting that the Ontario courts did not have jurisdiction over him and several corporate defendants. In connection with that motion, Mohammed provided affidavit evidence, was cross-examined on his affidavit, and provided answers to undertakings given on his cross-examination.

Decision on Mohammed’s jurisdiction motion

[26] On June 22, 2021, Gilmore J. released her reasons dismissing the jurisdiction motion.

[27] In her ruling dated June 22, 2021 on the jurisdiction motion brought by Mohammed, Gilmore J. held that whether or not the gift deed is valid is a matter for trial and not relevant for the purposes of the jurisdiction motion. Justice Gilmore agreed that there is substantial evidence “that points to the entire gift being a ruse and that while Mohammed may be the actual or beneficial owner of the assets, Dr. Saad continues to direct the management of those assets from Ontario”. Gilmore J. found “for the purposes of this motion that the Gift Deed is a ruse” and that Dr. Saad is still involved in the control and management of the misappropriated funds.

[28] Mohammed has appealed the jurisdiction decision. That appeal is scheduled to be heard by the Court of Appeal in January 2022.

[29] Mohammed brought a motion to the Court of Appeal and sought a stay of the action pending his appeal of the jurisdiction decision. The Court of Appeal dismissed the stay motion for reasons released on July 26, 2021.

Continued examination of Dr. Saad

[30] Dr. Saad’s cross-examination resumed on August 3-5, 2021. During the continued examination, counsel for Dr. Saad expressly undertook to answer certain of the plaintiffs’ questions, and provide these answers on a rolling basis. Dr. Saad provided some answers to undertakings, but no answers have been provided since August 12, 2021.

[31] Dr. Saad offered to continue to provide answers to undertakings while the contempt motion was outstanding on conditions that (i) none of the documents produced or answers given would be used or relied upon by the plaintiffs on their contempt motion, and (ii) the delivery of documents or answers would not amount to a waiver of Dr. Saad’s rights on the contempt motion.

[32] The plaintiffs did not agree to these conditions. Dr. Saad advised that he would defer delivering responses to outstanding undertakings pending the outcome of the contempt motion.

Mohammed Mareva Order

[33] On August 9, 2021 the plaintiffs obtained a stand-alone worldwide Mareva injunction against Mohammed (the “Mohammed Mareva Order”).

[34] The Mohammed Mareva Order required Mohammed to provide full disclosure of his assets.

[35] Mohammed delivered an asset declaration on August 19, 2021, with the caveat in a letter from his counsel respecting disclosure of certain information in light of the pending contempt motion.

[36] At the subsequent cross-examination, Mohammed’s counsel advised at the beginning of the cross-examination that the examination violates his Charter and common law rights and he is attending because of compulsion. Mohammed refused to answer many of the plaintiffs’ questions on the basis that they were “questions potentially relating to allegations that are the subject of the contempt proceedings”.

Plaintiffs’ contempt motion

[37] On August 27, 2021, the plaintiff served a notice of motion against Dr. Saad and Mohammed for a declaration that they have each breached the Saad Mareva Order, and for findings of contempt against each of them.

[38] On their contempt motion, the plaintiffs also seek:

(a) an order that Dr. Saad and Mohammed immediately comply with the terms of the Saad Mareva Order,

(b) an order of the merits of the within claim shall be addressed in the within action and that Dr. Saad and Mohammed shall not take further steps to contest the merits of the action in any related foreign proceeding,

(c) an order that a suitable, non-penal, sanction be imposed against Dr. Saad following a hearing on sanctions, if he fails to purge his contempt within five days of any finding of contempt, including:

(i) an order precluding Dr. Saad from taking any further step in this proceeding until he has complied with the Saad Mareva Order,

(ii) an order striking the statement of defence of Dr. Saad, and

(iii) an order granting judgment against Dr. Saad in the amount equivalent to USD $3,472,821,045;

(d) an order that a suitable, non-penal, sanction be imposed against Mohammed following a further hearing on sanctions, if he fails to purchase contempt within five days of any finding of contempt, including:

(i) an order precluding Mohammed from taking any further step in this proceeding until he has complied with the Saad Mareva Order; and

(ii) an order granting judgment against Mohammed in the amount equivalent to USD $544,409,740.

(e) an order pursuant to Rule 60.12 of the Rules of Civil Procedure:

(i) striking the statement of defence of Dr. Saad for non-compliance with the Saad Mareva Order;

(ii) granting judgment against Dr. Saad in the amount equivalent to USD $3,472,821,045; and

(iii) granting judgment against Mohammed in the amount equivalent to USD 544,409,740.

Analysis

[39] I address each of the five motions below.

Motion by Dr. Saad to strike evidence in the plaintiffs’ motion record on the contempt motion and to stay the action pending the outcome of the contempt motion

[40] Dr. Saad moves to strike out those portions of the plaintiffs’ motion records served in support of their motion for a contempt order that contain or rely on evidence that is inadmissible on the contempt motion. Dr. Saad relies on his rights under the Canadian Charter of Rights and Freedoms (the “Charter”), the Canada Evidence Act, Ontario’s Evidence Act, and common law.

[41] Dr. Saad seeks an order striking the following materials from the plaintiffs’ motion materials:

(a) Evidence that Dr. Saad was compelled to provide under the Saad Mareva Order, including affidavit evidence, cross-examination transcripts, and answers to undertakings given during those cross-examinations, (including documents that he was compelled to produce in response to questions asked on cross-examination);

(b) Evidence provided by Mohammed that is derivative of Dr. Saad’s prior compelled evidence;

(c) Prior judicial rulings in this and other proceedings that refer to, are derived from, or purport to make findings based on Dr. Saad’s prior compelled evidence and/or Mohammed’s prior evidence; and

(d) Materials prepared, exchange, and/or filed in connection with proceedings in other jurisdictions between the same or similar parties.

[42] Dr. Saad also seeks an order staying his obligation to provide further evidence in this action until the contempt proceeding is concluded or he decides to waive his rights. Dr. Saad submits that a stay order is needed to preserve his rights.

[43] Dr. Saad submits that permitting the plaintiffs to rely on those materials on the contempt motion would violate his rights, including his right against self-incrimination, his right to silence, his right to make full answer and defence, and his right to the presumption of innocence.

Legal principles in relation to contempt motions in civil actions

[44] Contempt of court rests on the power of the court to uphold its dignity and process. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. The purpose of a contempt order is first and foremost a declaration that a party has acted in defiance of a court order: Carey v. Laiken, 2015 SCC 17, at para. 30; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, at para. 35.

[45] In Sweda Farms Ltd. (c.o.b. Best Choice Eggs) v. Ontario Egg Producers, 2011 ONSC 3650, Lauwers J. (as he then was) summarized, at paras. 18-19, the applicable legal principles in relation to contempt proceedings [citations omitted]:

In a civilized society governed by the rule of law, such as ours, people are expected to and do comply with court orders. But in the rare cases that they do not, the court must take action. As Pepall J. stated: “Once an order has been obtained, it is imperative that it be obeyed, that the public understand that must be obeyed, and that judges have the will and ability to ensure compliance.” There are many other similar expressions of judicial resolve. See, for example, the following statement of Blair J.: “No society which believes in a system of even-handed justice can permit its members to ignore, disobey, or defy its laws and its court orders at their whim because in their own particular view it is right to do so.”

The nature of contempt may vary with the context, with slightly different considerations taken into account. Cumming J. noted that the court’s authority over court orders includes orders relating to commercial matters:

The deliberate failure to obey a court order strikes at the very heart of the administration of justice. This includes court orders relating to commercial matters as seen in the case at hand. If someone can simply ignore or finesse his way around a court order it will tend to add uncertainties and risks, with consequential inefficiencies and additional costs, as well as causing unfairness, with consequential inequities and additional costs, to the commercial marketplace. Just as white collar crime is crime, white collar contempt is contempt.

[46] In Pronesti v. 1309395 Ontario Ltd., 2015 ONSC 1139, the court addressed the particular importance of remedies for contempt of court to enforce a Mareva injunction. Myers J. stated, at para. 31, that a Mareva order is an exceptional and drastic remedy and represents the civil law’s efforts to protect against a rogue flouting the civil process of the court, and that “a civil remedy that cannot be enforced provides scant justice to the applicant”. Myers J. emphasized that the power to punish for contempt is essential to the rule of law, citing the following passage from the decision of McLachlin J. (as she then was) in United Nurses of Alberta v. Alberta (Attorney General), 1992 CanLII 99 (SCC), [1992] 1 S.C.R. 901:

Both civil and criminal contempt of court rest on the power of the court to uphold its dignity and process. The rule of law is at the heart of our society; without it there can be neither peace, nor order nor good government. The rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect. To maintain their process and respect, courts since the 12th century have exercised the power to punish for contempt of court.

[47] Civil contempt proceedings are quasi-criminal in nature: Carey v. Laiken, 2015 SCC 17, at para. 42; Pro Swing Inc. v. ELTA Golf Inc., 2006 SCC 52, at para. 35. Criminal law protections are afforded to the person against whom such an order sought. That person is not compellable or competent to act as a witness for the prosecution. The significance of a contempt order is evident from the sanction faced by the offender. In Canada, an individual in contempt of court can be committed to jail or may face the imposition of any other sanction for a criminal offence, such as a fine or community service. Thus, both the process used to issue a declaration of contempt and the sanction bear the imprint of criminal law: Pro Swing, at para. 35.

[48] In Vale Inco Ltd. v. U.S.W., Local 6500, 2010 ONSC 3039, Gordon J., at para. 3, identified the following procedural protections afforded to an alleged contemnor faced with civil contempt: (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.

[49] Dr. Saad’s Charter rights are also engaged by the plaintiffs’ motion for a contempt order. In Toronto Transit Commission v. Ryan (1998), 1998 CanLII 14635 (ON SC), 37 O.R. (3d) 266 (Gen. Div.), at para. 13, the application judge confirmed that the Charter applies to an application in respect of contempt of court:

An allegation of contempt of court, whether civil or criminal, has a public dimension that attracts the procedural protections relating to offences for which persons may be deprived of their liberty. Accordingly, the procedural and substantial protections of the Canadian Charter of Rights and Freedoms apply to matters relating to contempt and all the constituent elements of the contempt must be proved against the respondents beyond a reasonable doubt. An application in respect of the contempt of court is strictissimi juris and as a result calls for the most scrupulous attention of courts to ensure adherence to all necessary safeguards.

[50] This paragraph in Ryan was cited with approval by the Court of Appeal for Ontario in 2363523 Ontario Inc. v. Nowack, 2016 ONCA 951, at para. 37.

[51] Dr. Saad relies on his Charter, common law, and statutory rights in support of his motion to strike out those portions of the plaintiffs’ contempt motion record that, he submits, contain or rely on evidence that is inadmissible on the contempt motion against him.

[52] I address below the issues that arise in respect of s. 13, s. 11(c), and s. 7 of the Charter.

Are the materials inadmissible as against Dr. Saad because of his right against self-incrimination under s. 13 of the Charter and Statute?

[53] Section 13 of the Charter 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 proceedings, except in a prosecution for perjury or for the giving of contradictory evidence”.

[54] In R. v. Nedelco 2012 SCC 59, Moldaver J., at paras. 5-9, confirmed that s. 13 of the Charter is engaged where a party seeking to invoke s. 13 in a proceeding establishes that he or she gave incriminating evidence under compulsion at a prior proceeding.

[55] Dr. Saad submits that the plaintiffs’ contempt motion must be treated as an “other proceeding” - that is, a distinct quasi-criminal proceeding embedded within the underlying civil action - for the purposes of section 13. In support of this submission, Dr. Saad relies on several authorities.

[56] In R. v. Dubois, 1985 CanLII 10 (SCC), [1985] 2 S.C.R. 350, the appellant gave evidence at his criminal trial where he was charged with second degree murder and was convicted. On appeal, a new trial was ordered. At the new trial, the Crown read in as part of its case the evidence the appellant had given at his earlier trial. The appellant objected, based on s. 13 of the Charter. The appellant called no evidence and was convicted.

[57] The question in Dubois was whether the new trial was “another proceeding” within the meaning of s. 13 of the Charter. Lamer J., writing for the majority, held, at para. 44:

The purpose of s. 13, when viewed in the context of s. 11(c) and (d), it is to protect individuals from being indirectly compelled to incriminate themselves, to ensure that the Crown will not be able to do indirectly that which s. 11(c) prohibits. It guarantees the right not to have a person’s previous testimony used to incriminate him or her in other proceedings.

[58] Lamer J. held that to allow the prosecution to use, as part of its case, the accused’s previous testimony would, in effect, allow the Crown to do indirectly what it is estopped from doing directly by s. 11(c), that is, to compel the accused to testify. Lamer J. held, at para. 75, that a retrial of the same offence or one included therein, ordered by a court of appeal, is “other proceedings” within the meaning of s. 13.

[59] In R. v. Henry, 2005 SCC 76, at paras. 39-40, the Supreme Court of Canada affirmed that Dubois was correctly decided, observing that “to allow the Crown to simply file the testimony of the accused given at the prior trial (now overturned) would permit the Crown indirectly to compel the accused to testify at the retrial where s.11(c) of the Charter would not permit such compelled self-incrimination directly”.

[60] Dubois and Henry are criminal cases where the accused was convicted at trial, the conviction was overturned on appeal, and the accused was re-tried. The question at the second trial was the same as the question at the first trial: whether the Crown had proven that the accused was guilty of an offence charged. In these circumstances, the Supreme Court of Canada held that to allow the Crown to use in the second trial the accused’s evidence given at the first trial would permit the Crown to indirectly compel the accused to testify at the retrial, a violation of the accused’s rights under s. 13 of the Charter. On the motions before me, in contrast, there has been no adjudication of the offence charged in plaintiffs’ contempt motion.

[61] In addition, Dr. Saad relies on three authorities in civil cases that, he submits, show that a contempt motion should be regarded as “other proceedings” on a motion to strike out evidence given in the proceeding on the ground that it is inadmissible because of s. 13 of the Charter.

[62] The first case is Moudry v. Moudry, 2013 ONSC 7362. In Moudry, a finding of contempt was made against the applicant for failing to comply with an order providing for access to a child and a penalty in the form of a special costs award was imposed. The applicant filed for bankruptcy protection and argued that her discharge from bankruptcy extinguished the costs award made against her. Price J. held that the contempt sanction for non-compliance with the access order is not extinguished by discharge from bankruptcy. Dr. Saad argues that the court in Moudry proceeded on the basis that the contempt proceeding was “another proceeding” for purposes of the Bankruptcy and Insolvency Act, and on this authority, he contends that the contempt motion is “another proceeding” from the civil proceeding in which he provided his statement of assets and was examined. In Moudry, s. 13 of the Charter was not raised. Price J. was not called on to consider the authorities in relation to the Charter protections. I do not regard Moudry as a helpful authority on the question before me.

[63] The second case is Recycling Worx Solutions Inc. v. Hunter, 2018 ABQB 395. In Hunter, the alleged contemnor swore an affidavit in response to an injunction application and was cross-examined on it. On the contempt application, the application judge addressed the record before him, that he regarded as “problematic”, for several reasons. One of the reasons was that the alleged contemnor swore an affidavit in response to injunction applications and was cross-examined on it. The application judge wrote that “[i]t is questionable that that evidence can later be used for the purpose of proving contempt against him, in light of section 11(c) of the Charter of Rights and Freedoms and case law affirming a respondent’s right to remain silent in contempt proceeding (Pro-Swing Inc. v. ELTA Golf Inc., 2006 SCC 52 (S.C.C.) at paras. 34-36 and authorities cited therein)”. The application judge noted that although there was no objection by the alleged contemnor’s counsel to use of the cross-examination transcript, that may not satisfy his duty to ensure that the hearing is conducted in accordance with the Constitution. The application judge did not consider the affidavit or cross-examination thereon.

[64] I do not regard Hunter to be a helpful authority on the question of whether the contempt motion is a separate proceeding under s. 13 of the Charter. The question was not argued before the application judge who, it appears, raised the issue himself. The application judge did not decide the question he raised, but, instead, disregarded the evidence the admissibility of which he questioned. In Hunter, the alleged contemnor provided a subsequent affidavit in defence to the contempt application and was cross-examined, so this evidence was before the court.

[65] The third case is Caja Paraguaya et al. v. Antonio Duscio et al., 2021 ONSC 632. In Caja a motion was brought to have the defendant found in contempt of court for violating a non-dissipation and disclosure order. The defendant was found in contempt of the order, sentenced to 12 months in jail, and released on parole after serving seven months of his sentence. Another contempt motion was brought that concerned allegations of additional contempt that the defendant engaged in by dissipating assets while in jail or while on parole. The defendant objected to the admissibility of his affidavit of assets sworn in the proceeding in which he was found in contempt. The defendant submitted that admitting the affidavit would violate his protection against self-incrimination under s. 13 of the Charter. Koehnen J., at paras. 92-96, held that the affidavit of assets, although produced under compulsion, was not inadmissible because s. 13 of the Charter has an exception for the use of evidence in a prosecution for perjury or for the giving of contradictory evidence, and the contempt proceeding was based on the defendant having given contradictory evidence. Dr. Saad contends that Koehnen J., in so finding, implicitly held that the contempt motion was “other proceedings” from the proceedings in which the asset affidavit was provided.

[66] I disagree that such an implicit holding was made in Caja. In that case, Koehnen J. observed, at para. 96, that enforcement of Mareva injunctions would be impossible without the ability of the party seeking enforcement to put the initial affidavit of assets commonly associated with Mareva injunctions to the court. It was not necessary for Koehnen J. to make a decision as to whether the contempt motion before him was “other proceedings” within the meaning of section 13 of the Charter because the contempt motion was based on the alleged contemnor having given false evidence in his affidavit, an exception stated in s. 13 of the Charter. Koehnen J. was not asked to decide the question that arises on this motion, and none of the relevant authorities were cited in his decision.

[67] The plaintiffs submit that the contempt motion is not “other proceedings” within the meaning of s. 13 of the Charter. In support of this submission, the plaintiffs rely on McClure v. Backstein, [1987] O.J. No. 498, and cases that have followed it.

[68] In McClure, the plaintiff obtained a judgment against the defendant, the debtor, after a trial. The plaintiff examined the debtor in aid of execution but was not satisfied with the results. The debtor was ordered to re-attend to answer questions and undertakings. At the continued examination, the debtor did not bring the documents covered by the order and failed to answer many of the questions covered by the order. The plaintiff brought a motion for an order that the debtor is in contempt. In opposition to this motion, the debtor challenged the constitutional validity of rule 60.11 of the Rules of Civil Procedure on the grounds that the rule violates, among other provisions, ss. 7, 11(c), and 13 of the Charter.

[69] The debtor argued that by permitting use of his compelled evidence at the examination in aid of execution, the rule violated his right under s. 11(c) not to be compelled to give evidence on the contempt motion and his right under s. 13 not to have incriminating testimony given in a prior proceeding used to incriminate him on the contempt motion. The debtor contended that the contempt motion was an “other proceeding” within the meaning of s. 13 of the Charter. In McClure, Steele J., at para. 9, addressed the debtor’s submissions based on ss. 11(c) and 13 of the Charter:

Assuming that s. 11 of the Charter applies, the fact that the debtor cannot be compelled to give evidence does not preclude his evidence on the examination and the various affidavits that have been filed by him from being considered by the Court. The debtor submitted that the evidence given on an examination could not be referred to on the basis that it was incriminating evidence in another proceeding and therefore was prohibited by s. 13 of the Charter. The contempt proceeding is an integral part of the entire civil action from its commencement to judgment, and to enforcement thereof. The prior evidence was not in another proceeding but in the same proceeding. In any event, evidence in a civil proceeding is not “incriminating evidence” within the meaning of section 13. The debtor chose to defend the civil action and he must comply with the law. Section 13 does not protect him: see Seaway Trust Co. v. Kilderkin Investments Ltd. (1986), 1986 CanLII 2580 (ON SC), 55 O.R. (2d) 545, 11 C.P.C. (2d) 140, 29 D.L.R. (4th) 456 at 470 (Ont. HC).

[70] The statement by Steele J. in McClure that the contempt proceeding is an integral part of the civil action has been cited with approval in other cases.

[71] In Blatherwick v. Blatherwick, 2016 ONSC 2902, a decision on a contempt motion, Ricchetti J. cited with approval the passage from McClure where Steele J. held that “the contempt proceeding is an integral part of the entire civil action from its commencement to judgment, and to enforcement thereof” in support of his conclusion that the evidence at trial was admissible on the hearing of a contempt motion. In Blatherwick, the alleged contemnors gave voluntarily gave evidence at the contempt hearing.

[72] In Brit Corp. v. Trumbari Containers Ltd., 2005 CarswellOnt 3035, the plaintiff brought a motion for an order finding a judgment debtor in contempt of previous orders requiring him to attend for examination in aid of execution of the plaintiff’s judgment. When the motion was brought, the judgment debtor was bankrupt. The judgment debtor sought an adjournment on the ground that s. 69.3 of the Bankruptcy and Insolvency Act (BIA) and an interim order of the Registrar stayed enforcement proceedings against him. McKenzie J. cited McClure as authority for the proposition that a contempt proceeding is an integral part of the entire civil action from its commencement to judgment, and to enforcement thereof, and he accepted that the examination for execution was within the ambit of the term “execution or other proceedings” in s. 69.3(1) of the BIA. The request for an adjournment was granted.

[73] In Merck & Co. v. Apotex Inc., 1996 CanLII 4019 (FC), [1996] 2 F.C. 223 (Fed. T.D.), officers of the defendant were directed to appear to show cause why they should not be held in contempt of court for breach of an injunction to restrain patent infringement after a trial. The plaintiff had obtained evidence as a result of a court order that was received on an implied undertaking that it be used only for purposes of the patent action. The plaintiff relied on this evidence as the basis of allegations that the defendant’s officers failed to comply with the judgment in the patent action. The alleged contemnors moved to preclude the plaintiffs from using this evidence in the contempt proceeding on the basis that such use would be for a collateral purpose and violate the implied undertaking. They argued that the contempt proceedings are distinct and different from the overall proceedings in the patent action. McKay J. relied on McClure and other authorities in support of his conclusion that the contempt proceedings are not separate and distinct from the patent action and that the use of the evidence obtained under compulsion in the patent action is not for a collateral or ulterior purpose in terms of the implied undertaking. This case did not involve an alleged violation of s. 13 of the Charter. See Merck, at para. 49.

[74] In ASICS Corp. v. 9153-2267 Québec inc. 2017 FC 5, 2017 F.C. 5, the plaintiff brought a motion for contempt of court against the defendant and its officer after obtaining a default judgment enjoining the defendant from infringing trade-marks. At a hearing where the defendants and two of its officers were ordered to show cause why they should not be held in contempt for breaching the default judgment, the court was called on to decide whether an affidavit from the defendant’s president filed in opposition to a motion for a writ of seizure and sale engaged the right to protection against self-incrimination set forth in s. 13 of the Charter. Crampton J. addressed, in the interest of judicial economy, the question of whether the affidavit was inadmissible under s. 13 of the Charter in relation to a motion (which had not yet been brought) for contempt against individual officers of the defendant. The alleged contemnors argued that the show cause hearing is a separate proceeding distinct from the underlying civil action. Crampton J. relied on Merck, McClure, Blatherwick, and other authorities and held, at para. 28, that a show cause hearing that arises out of an alleged breach of an order in an underlying civil action is an integral part of that same action, and not a distinct or “other proceeding”. The affidavit that the alleged contemnors sought to exclude had been voluntarily filed to oppose the writ of seizure and sale. In this respect, the facts in ASICS differ from those in McClure and on the motion before me, where the evidence in question was compelled.

[75] Dr. Saad submits that McClure was decided before the leading Charter decisions of the Supreme Court of Canada in Dubois and Henry, and that it is not a governing authority. Dr. Saad points to the statement made by Steele J. in McClure that the rules providing for a contempt motion are not penal but are coercive and he submits that this statement is mistaken, and led Steele J. to the incorrect conclusion that a contempt motion in a civil action is not “other proceedings” within the meaning of s. 13 of the Charter. In support of this submission, Dr. Saad relies on Moudray, at para. 56, where Price J. noted that the statement made by Steele J. does not appear to be in accord with the line of authorities holding sanctions for contempt to be offences that are quasi-criminal in nature.

[76] In McClure, although Steele J. regarded a civil contempt motion to be coercive rather than penal, he assumed, for the purposes of the motion before him, that the Charter applied. This makes the McClure decision an applicable authority on this motion where the plaintiffs accept that the Charter applies to the contempt motion they have brought. The question addressed by Steele J. in McClure, whether the contempt motion is “other proceedings” under s. 13 of the Charter, is the same as the question before me. The fact that Steele J. was not asked to rule on the admissibility of evidence on the contempt motion, which was opposed on the ground that rule 60.11 was unconstitutional, does not change the fundamental conclusion made by Steele J. that s. 13 of the Charter did not afford protection to the debtor in respect of compelled evidence given prior to and in the same proceeding as the contempt motion.

[77] 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.

[78] 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.

[79] The materials that Dr. Saad seeks to strike out are not inadmissible as against him because of protections afforded to him by s. 13 of the Charter or by statute.

Are the Materials inadmissible as against Dr. Saad because of his rights under s. 11(c) of the Charter?

[80] Dr. Saad also relies on s. 11(c) of the Charter in support of his motion to strike materials from the plaintiffs’ motion record on the contempt motion.

[81] 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”.

[82] Dr. Saad submits that s. 11(c) of the Charter applies to make his evidence, and evidence derived therefrom, inadmissible on the contempt motion. He relies on Vidéotron Ltée v. Industries Microlec produits électriques Inc., 1992 CanLII 29 (SCC), [1992] 2 S.C.R. 1065.

[83] In Vidéotron, the appellants had filed an application alleging that the respondents had committed a contempt of court by failing to comply with a permanent injunction. The appellants called an alleged contemnor to testify at the contempt hearing. He objected to testifying and invoked s. 11(c) of the Charter. The lower courts held that the witness could not be compelled to testify. The issue on the appeal at the Supreme Court of Canada was whether the respondent in a motion for contempt of court based on failure to comply with an injunction may be compelled to testify. Lamer J., in concurring reasons, held that a person cited for contempt of court is a person charged with an offence within the meaning of s. 11 of the Charter and enjoys the constitutional guarantee contained in section 11(c). The Supreme Court of Canada held that the respondent to the contempt motion was not compellable as a witness at the contempt hearing.

[84] On the authority of Vidéotron, both Dr. Saad nor Mohammed have the right not to be compelled to be a witness at the hearing of the contempt motion. Vidéotron does not, however, address the question before me, whether testimonial evidence previously provided in the same proceeding, even if given under compulsion, is inadmissible because of Dr. Saad’s rights under s. 11(c) of the Charter.

[85] Dr. Saad also relies on Lonnenberg v. Orca, 2021 ONSC 4886. He submits that Lonnenberg stands for the proposition that s. 11(c) applies in civil contempt proceedings to protect an alleged contemnor from being compelled to testify against himself.

[86] In Lonnenberg, the plaintiffs brought a motion to hold a person in contempt for failing to disclose his assets as previously ordered by the court. After bringing the motion, one of the plaintiffs asked the court to enforce the obligation of the alleged contemnor to attend for cross-examination on the list of assets that he purported to disclose under a Mareva injunction. Myers J., at para. 14, declined to allow the plaintiff to do so on the ground that “s. 11(c) of the Charter protects people charged with an offence from being compelled to testify against themselves”. It was significant to Myers J. that the request to compel the alleged contemnor to give evidence was made after the contempt motion was brought. In declining to make the requested order, Myers J. wrote “[p]erhaps [counsel for the plaintiff] should have considered the option of cross-examining Mr. Onca on his disclosure statement before moving to hold him guilty of contempt of court?” This passage makes it clear that Myers J. drew a distinction between the use of compelled evidence obtained through an examination on a list of assets provided pursuant to a Mareva order before a motion for contempt was brought, and an attempt to compel and use such evidence after a motion for a contempt order is brought. Lonnenberg does not support Dr. Saad’s interpretation of s. 11(c) of the Charter.

[87] Section 11(c) of the Charter provides that 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. In R. v. Jones, 1994 CanLII 85 (SCC), [1994] 2 S.C.R. 229, Lamer C.J.C., at para. 33, distinguished between the principle against self-incrimination and the privilege against self-incrimination. The principle against self-incrimination is a general organizing principle of criminal law from which particular rules may be derived. This principle has status as a principle of fundamental justice. The privilege is the narrow traditional common law rule relating only to testimonial evidence at trial.

[88] Section 11(c) of the Charter applies to compelled testimony to be given by a person charged with an offence in respect of the offence. The offence alleged against Dr. Saad and Mohammed is that they intentionally engaged in conduct in breach of the Saad Mareva Order by using frozen assets for funding Dr. Saad’s ordinary living expenses and the legal expenses he has incurred in Ontario, the United States, and other foreign jurisdictions.

[89] Under s. 11(c) of the Charter, Dr. Saad cannot be compelled to testify at the contempt hearing in respect of the offence with which he is charged. This was established in Videotron. Section 11(c) does not, however, on its plain language, apply to testimonial evidence previously given, in the same or another proceeding, and whether compelled or not. If I were to interpret s. 11(c) as urged by Dr. Saad, the effect would be to override the limitation on the specific protection provided by s. 13 of the Charter which, I have held, does not apply here because the contempt motion is not “other proceedings”.

[90] I find support for my conclusion in R. v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 S.C.R. 154 where the appellant relied on s. 11(c) to exclude statutorily compelled information that he gave that, later, was sought to be used in the prosecution of a regulatory offence. The Supreme Court of Canada held, at para. 20, that s. 11(c) was not raised by the facts because the appellant had not been compelled to be a witness in proceedings against him in respect of the offence.

[91] The materials that Dr. Saad seeks to strike out are not inadmissible as against him because of protections afforded to him by s. 11(c) of the Charter.

Are the materials inadmissible as against Dr. Saad because of his rights under s. 7 of the Charter?

[92] Dr. Saad also relies on his rights under s. 7 of the Charter. Section 7 of the Charter provides: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.

[93] In Nowack, the Court of Appeal confirmed that s. 7 of the Charter applies to contempt proceedings because they are penal in nature. The Court of Appeal held that contempt proceedings must afford the alleged contemnor “all necessary safeguards”, and that the proceeding must preserve the principles of fundamental justice by safeguarding the right to be presumed innocent and the right to make full answer and defence.

[94] In R. v. Hebert, 1990 CanLII 118 (SCC), [1990] 2 S.C.R. 151, at para. 20, McLachlin J. (as she then was) confirmed that “the right to remain silent - the right not to incriminate oneself with one’s words - is an integral element of our accusatorial and adversarial system of justice”.

[95] In R. v. White, 1999 CanLII 689 (SCC), [1999] 2 S.C.R. 417, Iacobucci J. explained that the principle against self-incrimination is an overarching principle within our criminal justice system from which a number of specific common law and Charter rules emanate. Within the Charter, the principle against self-incrimination is embodied in several specific procedural protections including the right to non-compellability in s. 11(c) and the right to use immunity in s. 13. The Charter also provides residual protection to the principle through s. 7. The residual protections are specific, and contextually sensitive. The s. 7 analysis involves a balance. Each principle of fundamental justice must be interpreted in light of those other individual and societal interests that are of sufficient importance that they may appropriately be characterized as principles of fundamental justice in Canadian society. See White, at paras. 44-45.

[96] In R. v. Hart, 2014 SCC 52, the Supreme Court of Canada held, at para. 123, that “[w]here the underlying rationale for the principle against self-incrimination suggests that legal protection is needed in a specific context, but the law provides for none, the principle can be used to fashion a ‘contextually sensitive’ new rule to address the gap in the law”.

[97] In R. v. Fitzpatrick, 1995 CanLII 44 (SCC), [1995] 4 S.C.R. 154, the Supreme Court of Canada addressed the scope of s. 7 of the Charter. In that case, a commercial fisherman was charged with three counts of catching and retaining fish in excess of the fixed quota, contrary to the British Columbia Fishery (General) Regulations. At trial, the Crown sought to introduce into evidence the fishing logs and hail reports which indicated the estimated poundage of the catch by species, date, time, and location during each trip. The fisherman was statutorily required to produce those documents pursuant to the Fisheries Act. The trial judge excluded the documents on the ground that they were self-incriminatory, and that their admission would violate the fisherman’s rights under section 7 of the Charter. The fisherman was acquitted. On appeal, the British Columbia Court of Appeal set aside the acquittal and ordered a new trial. The fisherman appeal to the Supreme Court of Canada.

[98] At the appeal to the Supreme Court of Canada, the fisherman challenged the use sought to be made at trial of the compelled information acquired under the Fisheries Act on the ground that the information was self-incriminatory. The fisherman relied on ss. 7, 11(c) and 11(d) of the Charter. La Forest J. held that there was no doubt that s. 7 of the Charter was engaged because the fisherman faced potential imprisonment (a conviction would be his second offence). La Forest J. held that s. 11(c) was not raised by the facts since the fisherman had not been compelled to be a witness in proceedings against that person in respect of the offence. La Forest J. described, at para. 22, the position advanced by the fisherman as asking the Court “to endorse a broad, abstract principle against self-incrimination as a principle of fundamental justice under s. 7, which would prevent the use of information in all contexts in which it is statutorily compelled.” La Forest J. held that there is no support in the case law for such a broad, abstract approach to the issue of self-incrimination. La Forest J. cited Thomson Newspapers Ltd. v. Canada, 1990 CanLII 135 (SCC), [1990] 1 S.C.R. 425, where “the protection against self-incrimination under s. 7 was viewed as residual, designed to provide additional safeguards against self-incrimination beyond those accorded by ss. 11 (c) and 13 of the Charter”. (Emphasis in original)

[99] La Forest J. analyzed the principle against self-incrimination under s. 7 of the Charter in context and held that the purposes behind the principle against self-incrimination – to protect against unreliable confessions and to protect against abuse of power by the state – were not threatened by allowing the Crown to use the hail reports and fishing logs that were obtained under compulsion from the fisherman.

[100] The context in which Dr. Saad’s claim to protection under s. 7 of the Charter of his right against self-incrimination arises is where the Court, in a civil action for fraudulent misappropriation of property, has held that a strong prima facie case of fraud has been established and has granted the exceptional remedy of a Mareva injunction freezing the defendant’s worldwide assets, and an order that required the defendant to provide a sworn statement attesting to his worldwide assets and to be examined thereon. Dr. Saad gave affidavit evidence of his assets on which he was cross-examined. The purpose of the requirement to give a statement of assets and to be examined is to give meaningful effect to an order made to stop wrongdoers from dissipating misappropriated assets. The question is whether, in this context, there is a need to use the residual protection against self-incrimination in s. 7 of the Charter to fashion a new rule to address a gap in the law because the law does not provide protection of this principle.

[101] 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.

[102] 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.

[103] Section 13 of the Charter addresses the principle against self-incrimination in the specific context in which it arises on Dr. Saad’s motion, where Dr. Saad’s evidence was given before the contempt motion was brought. I have held that s. 13 does not apply because the plaintiffs’ contempt motion is not “other proceedings” than the proceeding in which he gave the evidence he seeks to exclude. The protection against self-incrimination in this context is covered by the privilege against self-incrimination in s. 13, and there is no residual gap to be filled under s. 7. To give s. 7 of the Charter effect as a residual protection of the right against self-incrimination in this context would override the specific limitation on the privilege against self-incrimination in s. 13 and impermissibly transform the principle of fundamental justice against self-incrimination that is protected under s. 7 into a free-standing privilege against self-incrimination.

[104] The materials that Dr. Saad seeks to strike out are not inadmissible as against him because of protections afforded to him by s. 7 of the Charter.

[105] For these reasons, I conclude that the four categories of evidence that Dr. Saad seeks to exclude: (i) Dr. Saad’s prior compelled evidence, (ii) Mohammed’s prior evidence as derivative therefrom, (iii) the prior reasons, and (iv) the litigation materials, are not inadmissible as against Dr. Saad because of his rights at common law, under the Charter, or under statute.

Admissibility of materials that Dr. Saad seeks to exclude as against Mohammed

[106] Mohammed supports Dr. Saad’s motion and he adopts the submissions made by Dr. Saad. Mohammed makes some additional submissions. Mohammed asks for an order that the materials that Dr. Saad seeks to strike out as inadmissible as against him are also inadmissible as against Mohammed.

[107] I address Mohammed’s submissions by reference to the four categories of materials that Dr. Saad seeks to exclude.

(i) Dr. Saad’s Evidence

[108] With respect to Dr. Saad’s motion to strike out materials from the plaintiffs’ motion record on the contempt motion, Mohammed relies on the submissions made by Dr. Saad. He asks for an order on this motion that these materials should be struck out because they violate his rights and are inadmissible as against him. Mohammed relies on Dr. Saad’s submissions as they relate to his own rights, mutatis mutandis. Mohammed does not seek to rely on Dr. Saad’s rights.

[109] Dr. Saad’s evidence is not inadmissible as against Mohammed for the same reasons that it is not inadmissible as against Dr. Saad.

(ii) Mohammed’s Evidence

[110] Mohammed submits that all of his evidence from the jurisdiction motion and any evidence derived therefrom must be excluded as compelled evidence under s. 13 of the Charter. Mohammed relies on two different bases for this submission.

[111] First, he submits that the evidence on Mohammed’s jurisdiction motion was compelled because his motion to challenge jurisdiction does not constitute a voluntary appearance. One does not attorn by challenging jurisdiction: Wolfe v. Pickar, 2011 ONCA 347, at para. 44. Mohammed submits that if the appearance to challenge jurisdiction is not voluntary, any evidence given at this compelled appearance must be treated as compelled.

[112] Second, Mohammed submits that evidence given in the course of a civil proceeding should be treated as compelled. In support of this submission, Mohammed relies on Ontario Psychological Association v. Mardonet, 2015 ONSC 1286, leave to appeal ref’d, 2015 ONSC 4048. In Mardonet, Perell J. noted, at para. 29, that in civil proceedings, a person examined as a witness at a civil trial, or an examination for discovery, or an affiant in civil proceedings, is treated as a compelled witness. Mohammed also relies on Henry, at para. 27, where Binnie J. held that evidence given voluntarily at a first trial would be considered to be compelled at the retrial if the accused chose not to testify.

[113] Mohammed submits, therefore, that his affidavits given in support of his jurisdiction motion should be treated as compelled for purposes of s. 13 of the Charter.

[114] On the authority of Mardonet, I treat Mohammed’s evidence given through his affidavits on his jurisdiction motion and his cross-examination to be compelled evidence.

[115] Mohammed also relies on Henry in support of his submission that the contempt motion against him is “other proceedings” for the purpose of his rights under s. 13 of the Charter.

[116] Mohammed’s motion to challenge the jurisdiction of the Ontario courts was made in response to the plaintiffs’ action in which they sought to move for Mareva relief against Mohammed. Mohammed sought and obtained an adjournment of the plaintiffs’ motion for a Mareva order to allow him to move to challenge jurisdiction. Mohammed’s jurisdiction motion was made in the same proceeding as the plaintiffs’ motion for a Mareva order against him. The purpose of the requested Mareva order was to freeze Mohammed’s worldwide assets, following evidence of Dr. Saad’s gift of his assets to Mohammed. In this context, the plaintiffs’ contempt motion is not “other proceedings” than the proceeding in which Mohammed provided evidence. It is the same proceeding: McClure, at para. 9.

[117] Mohammed’s evidence given on his jurisdiction motion and evidence derived therefrom, to the extent that the evidence is incriminating, is not inadmissible as against him because of protections afforded to him by s. 13 of the Charter.

[118] Mohammed also relies on his rights under s. 11(c) of the Charter and his rights, including the right against self-incrimination, the right to silence, and the right to know the case to be met, under s. 7 of the Charter.

[119] For the reasons given when I addressed the same arguments made by Dr. Saad, Mohammed’s evidence is not inadmissible as against him because of protections afforded to him by s. 11(c) and s. 7 of the Charter.

[120] Mohammed’s evidence on the jurisdiction motion was not given in respect of the offence charged in the contempt motion which, when this evidence was given, had not been brought.

[121] In the context of the plaintiffs’ contempt motion, section 7 of the Charter does not apply to fill a residual gap. Section 13 of the Charter provides protection of the principle against self-incrimination in this context which, because the contempt motion is not “separate proceedings” from the civil action in which Mohammed’s evidence was given, does not apply to make Mohammed’s evidence inadmissible against him.

(iii) Litigation Materials and Correspondence

[122] I have held that the category of evidence is not inadmissible as against Dr. Saad. For the same reasons, it is not inadmissible as against Mohammed.

(iv) Prior rulings

[123] I have held that evidence of the prior rulings is not inadmissible as against Dr. Saad because it is derivative of other inadmissible evidence. For the same reason, evidence of the prior rulings is not inadmissible as derivative evidence as against Mohammed.

[124] These findings are subject to my decision on the motion by Dr. Saad under rule 21 of the Rules of Civil Procedure.

[125] Dr. Saad’s motion to strike those portions of the plaintiffs’ contempt motion that contain or rely on evidence that was compelled from Dr. Saad under the Saad Mareva Order prior to the initiation of the contempt motion and evidence derived therefrom is dismissed.

Motion by Dr. Saad under rule 21 to determine (i) whether prior rulings have preclusive effect, and (ii) whether findings or conclusions in prior rulings are admissible on the plaintiffs’ contempt motion

[126] The plaintiffs seek to admit prior rulings made in this action as relevant and admissible evidence on issues on the contempt motion, for example, the validity of the gift.

[127] Dr. Saad moves pursuant to Rule 21 of the Rules of Civil Procedure to seek a determination, as a matter of law, that the prior judicial reasons upon which the plaintiffs rely on their contempt motion (1) do not have any preclusive effect in the contempt proceeding, as a matter of res judicata, issue estoppel or otherwise; and (2) in any event, are inadmissible in the contempt proceeding as evidence as proof of the plaintiffs’ allegations.

[128] The plaintiffs have confirmed that they do not suggest that any of the prior rulings has preclusive effect. This is not an issue on this motion.

[129] Ontario courts have released reasons, endorsements, and decisions on various motions in the underlying action, including:

(a) Justice Gilmore’s Reasons granting the Saad Mareva Order (and other ex parte orders), dated January 27, 2021;

(b) An endorsement from the Divisional Court denying leave to appeal the Saad Mareva Order, dated May 4, 2021;

(c) Associate Justice Robinson’s Reasons for Decision released on May 28, 2021, addressing the proper scope of disclosure on the examination of Dr. Saad on his asset declaration;

(d) Justice Gilmore’s ruling on Jurisdiction Motion dismissing Mohammed’s jurisdiction motion, dated June 22, 2021 (the “Jurisdiction Ruling”);

(e) The Court of Appeal’s Endorsement (Benotto J.A.) dismissing Mohammed’s motion for a stay pending appeal of the Jurisdiction Ruling, dated July 26, 2021 (the “Stay Decision”); and

(f) Justice Koehnen’s Endorsement granting the Mohammed Mareva Order, dated August 9, 2021.

[130] A complete list of the reasons and endorsements on which the plaintiffs rely in support of their contempt motion and that Dr. Saad seeks to have struck out and excluded (collectively, the “Prior Rulings”) is included in Schedule “C” to Dr. Saad’s Factum on his motion to strike materials and stay the action until the contempt motion has been decided.

[131] The plaintiffs do not seek to admit the three prior rulings in which Mohammed was a party but Dr. Saad was not a party as evidence against Dr. Saad. These are (i) Justice Gilmore’s jurisdiction ruling, (ii) Benotto J.A.’s stay decision, and (iii) Justice Koehnen’s endorsement granting the Mohammed Mareva Order.

[132] The plaintiffs do not seek to admit the eight prior rulings in which Dr. Saad was a party but Mohammed was not a party against Mohammed.

[133] In support of their submissions that the Prior Rulings are admissible, the plaintiffs rely on British Columbia (Attorney General) v. Malik, 2011 SCC 18. Dr. Saad also cites Malik which, he submits, applies only to admissibility of prior rulings in a subsequent civil case.

[134] In Malik, the Supreme Court of Canada addressed the admissibility of judicial findings and conclusions made in a ruling in prior application (a Rowbotham application where the burden of proof was the civil standard) on an ex parte motion for an Anton Piller order and a Mareva order (where the burden of proof was also on the civil standard). The lower court had held that the prior decision was not admissible to prove the truth of its contents unless the applicant could establish that the respondents were precluded by issue estoppel or abuse of process from relitigating the facts adduced.

[135] Binnie J., at para. 7, held that a judgment in a prior civil or criminal case is admissible as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions provided certain conditions are met:

In my view, for the reasons that follow, a judgment in a prior civil or criminal case is admissible (if considered relevant by the Chambers judge) as evidence in subsequent interlocutory proceedings as proof of its findings and conclusions, provided that the parties are the same or were themselves participants in the prior proceedings on similar or related issues. It will be for that judge to assess its weight. The prejudiced party or parties will have an opportunity to lead evidence to contradict or lessen its weight (unless precluded from doing so by the doctrines of res judicata, issue estoppel, or abuse of process).

[136] In Malik, at paras. 37 and 42, Binnie J. explained his reasoning:

The admissibility of prior civil or criminal judgments in subsequent civil proceedings, and the effect to be given to them, must be seen in the broader context of the need to promote efficiency in litigation and reduce its overall costs to the parties. The doctrines of res judicata, issue estoppel and abuse of process are all part of this larger judicial policy but they do not exhaust its potential.

Of course the weight of the prior judgment will depend on such factors as the similarity of the issues to be decided, the identity of the parties, and (because of the differing burdens of proof) whether the prior proceedings were criminal or civil. As the Sopinka text points out: “The fact that it is a civil judgment only would be significant in terms of weight. The party against whom the judgment was rendered would have a greater opportunity to explain it or suggest mitigating circumstances” (Alan W. Bryant, Sidney N. Lederman and Michelle K. Fuerst, Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd ed. 2009), at §19.177).

[137] Dr. Saad submits that the eight rulings that the plaintiffs seek to admit against Dr. Saad are inadmissible on the contempt motion for three reasons: (1) all of the prior rulings were decided on the civil standard, proof on a balance of probabilities, and they are not admissible as evidence on the contempt motion, a quasi-criminal proceeding, where the burden of proof is the criminal standard, proof beyond a reasonable doubt; (2) admitting the prior rulings would infringe Dr. Saad’s right to the presumption of innocence; and (3) the prejudicial effect of admitting the prior rulings outweighs any probative value of the prior rulings.

[138] In Malik, the prior rulings were made in a civil proceeding and the plaintiff used the rulings in a subsequent civil interlocutory proceeding. Binnie J., at para. 46, addressed the approach to be taken in other cases involving trials on the merits:

Whether or not a prior civil or criminal decision is admissible in trials on the merits - including administrative or disciplinary proceedings - will depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions. On this point I agree with Del Core (which was not an interlocutory proceeding) that it “would be highly undesirable to replace this arbitrary rule [in Hollington v. F. Hewthorn & Co.] by prescribing equally rigid rules to replace it” (p.22).

[139] The plaintiffs submit that the governing statements in Malik do not suggest that they do not apply in quasi-criminal proceedings. They point to the statement by Binnie J. in para. 42 addressing the weight to be given to the prior judgment, and argue that this shows that all prior civil and criminal judgments are admissible in all subsequent proceedings, subject only to the weight to be given to the prior judgment. They point out that disciplinary proceedings can be quasi-criminal and submit that the reference in Malik to the rule’s application to a trial on the merits, including disciplinary proceedings, shows that the rule in Malik applies to all subsequent proceedings, including those where proof is required on the criminal standard.

[140] I disagree with these submissions. In Malik, Binnie J., at paras. 44-45, wrote that, on the appeal, the Court was concerned only with the admissibility of prior rulings in civil or criminal proceedings in subsequent interlocutory proceedings in a civil case. In subsequent cases, it has been held that the reasoning in Malik is not restricted to interlocutory proceedings and it has been applied in the context of final determinations on the merits in subsequent civil proceedings: Plate v. Atlas Copco, 2019 ONCA 196, at paras. 195-196, and cases cited. I observe that although Binnie J., in para. 46, raised the prospect of the rule applying in trials on the merits including administrative and disciplinary proceedings – where admissibility would depend on the purpose for which the prior decision is put forward and the use sought to be made of its findings and conclusions - he did not specifically mention the possible application of the rule in criminal trials on the merits. I do not regard the reference by Binnie J. to “disciplinary proceedings” in this context as supporting the plaintiffs’ submission that the principle in Malik should be read as applying to subsequent criminal or quasi-criminal proceedings.

[141] The plaintiffs submit that the year after Malik was decided, the Supreme Court of Canada adopted its reasoning in a criminal proceeding, R. v. Jesse, 2012 SCC 21, where Moldaver J. accepted Binnie J.’s analysis in Malik and applied this approach. In Jesse, the prior decision was a criminal jury verdict and the Crown sought to use the conduct underlying that conviction as similar fact evidence to meet the burden of proof on a balance of probabilities to prove identity in a voir dire in a subsequent criminal proceeding. See Jesse, at paras. 2, 21. The decision in Jesse does not assist with the issue before me because the burden of proof in the prior proceeding was the criminal standard, proof beyond a reasonable doubt, and the burden of proof in the subsequent proceeding was the civil standard, proof on a balance of probabilities. The plaintiffs do not cite any case where a judicial ruling decided on the civil standard was admitted as evidence of factual findings in a subsequent proceeding where the facts were required to be proven on the higher criminal standard.[^1]

[142] The factors identified by Binnie J. in support of his decision, the need to promote efficiency in litigation and reduce its overall costs to the parties, are factors which, as Dr. Saad observes, foreshadow the call in Hryniak v. Maudlin, 2014 SCC 7 for a culture shift towards the principle of proportionality in civil proceedings. These factors are important considerations in civil litigation but they do not apply in the same way or to the same extent in criminal proceedings.

[143] In Malik, there was no question that prior judicial findings that had preclusive effect by the application of the doctrines of issue estoppel or abuse of process were admissible in a subsequent civil proceeding. In criminal cases, however, where the burden on the Crown is to prove its case beyond a reasonable doubt, issue estoppel only applies to preclude the Crown from leading evidence which is inconsistent with findings made in the accused’s favour in a previous proceeding: R. v. Mahalingan, 2008 SCC 63, at paras. 2, 74-77.

[144] In my view, Malik is not determinative of the question before me, whether findings and conclusions in prior judicial rulings decided on the civil standard of proof are admissible in evidence on a subsequent motion (here, in the same proceeding) for a final order for contempt of court which, as a quasi-criminal proceeding, must be decided on the criminal standard of proof.

[145] As I have noted, in Malik, Binnie J. held that whether or not a prior civil or criminal decision is admissible in trials on the merits will depend on the purpose for which the prior decision is put forward and the use to be made of its findings and conclusions. I consider these factors when I consider whether the Prior Rulings are admissible in evidence on the contempt motion.

[146] The purpose for which the plaintiffs seek to admit the Prior Rulings, at least in part, is to prove that the gift is invalid. The plaintiffs seek to use the Prior Rulings as evidence to obtain a judicial decision that Dr. Saad and Mohammed breached the Saad Mareva Order by using assets frozen by this order to pay for Dr. Saad’s living and legal expenses. All of the findings and conclusions in the Prior Rulings were made on the lower civil standard of proof. Whether the same findings and conclusions would have been made if the plaintiffs were subject to a higher burden, proof beyond a reasonable doubt, cannot be known. This calls into question the probative value in a quasi-criminal proceeding of judicial findings or conclusions made in a prior proceeding on the balance of probabilities.

[147] In this context, and given the purpose for which the Prior Rulings are put forward and the use sought to be made of the findings and conclusions in them, the justifications given by Binnie J. for his conclusion with respect to admissibility of judicial decisions in subsequent civil cases in Malik, the need to promote efficiency in litigation and to reduce the overall costs of litigation, do not, in my view, apply to allow the prior rulings to be admitted in evidence on a contempt motion, a quasi-criminal proceeding. An alleged contemnor must be provided with all necessary safeguards that apply in a criminal case. A contempt proceeding is strictissimi juris and must be conducted in a manner that protects the rights of the alleged contemnor rigorously. The evidence that was before the courts when the Prior Rulings were made with respect to facts in issue, including the validity of the alleged gift, will be before the judge hearing the contempt motion, and this judge will be able to give this evidence appropriate weight.

[148] For these reasons, I conclude that no finding or conclusion made or purportedly made or contained in the Prior Rulings is admissible as evidence on the contempt motion as proof of any fact in issue on the contempt motion.

[149] Dr. Saad and Mohammed also submit that to admit the Prior Rulings would violate the presumption of innocence protected by s. 11(d) of the Charter because it would impermissibly put an onus on them to tender evidence to rebut facts that had not been proven beyond a reasonable doubt in circumstances where the Prior Rulings do not lead inexorably to acceptance of any fact in respect of which the Prior Rulings are tendered as proof. In support of this submission, Dr. Saad and Mohammed rely on R. v. Morrison, 2019 SCC 15.

[150] In Morrison, the Supreme Court of Canada held that a rebuttable statutory presumption violated an accused’s right to be presumed innocent by requiring the accused to adduce evidence to rebut facts that had not been proved beyond a reasonable doubt. The Court explained its reasoning, at para. 56:

The Crown maintains that the presumption under s. 172.1(3) does not infringe section 11(d) because the presumption is rebuttable where there is evidence to the contrary. With respect, I cannot agree. A basic fact presumption will infringe s. 11(d) if proof of the basic fact is not capable, in itself, of satisfying the trier of fact beyond a reasonable doubt of the presumed fact. (This is another way of articulating the “inexorable connection” test). The accused’s opportunity to raise or identify evidence to the contrary does not resolve or attenuate the s. 11(d) problem created when proof of a basic fact does not lead inexorably to acceptance of the presumed fact. This is because the presumption of innocence requires that the Crown “establish the guilt of the accused beyond a reasonable doubt before the accused must respond”: [citation omitted]

[151] On the motion before me, the Prior Rulings are not evidence that creates a presumption of the existence of any fact, including that the alleged gift of assets by Dr. Saad to his Mohammed is invalid, or that leads inexorably to acceptance of any fact. The weight to be given to the Prior Rulings, if they were held to be admissible, would be for the judge hearing the contempt motion to decide. For this reason, the problem raised by the statutory presumption in Morrison in relation to the presumption of innocence protected by s. 11(d) of the Charter does not arise.

[152] Given my conclusion concerning the admissibility of the Prior Rulings, it is not necessary for me to address the question of whether the probative value of the findings and conclusions made in the Prior rulings outweighs their prejudicial effect.

The plaintiffs’ motion to compel answers to undertakings given on Dr. Saad’s examination, to compel production of documents requested from Mohammed, and to compel production of information from Dr. Saad’s and Mohammed’s lawyers’ trust ledgers

[153] The plaintiffs move for an order (i) compelling Dr. Saad to answer undertakings given on his examinations and produce documents that are the subject of those undertakings, (ii) compelling Mohammed to produce relevant, non-privileged, documents that are relevant to the Mohammed Mareva Order, and (iii) compelling Dr. Saad and Mohammed to each produce documents, or instruct the relevant law firms to produce documents, disclosing factual, non-privileged information contained on the trust ledgers of their respective law firms (these questions were refused on Dr. Saad’s examinations).

[154] This motion must be considered together with Dr. Saad’s motion for an order staying any obligation to answer undertakings or produce documents until the plaintiffs’ contempt motion has been finally adjudicated or he voluntarily waives his rights. Dr. Saad acknowledges that he has an obligation to answer undertakings. The question he raises on his motion, and in response to the plaintiffs’ motion, in relation to the undertakings, is whether he is required to provide answers to undertakings, including through production of documents while the contempt motion against him is pending, that can be used against him on the contempt motion.

Undertakings given by Dr. Saad and Documents required from Mohammed

[155] Dr. Saad relies on evidence in the record that he offered to continue to provide answers to undertakings even while the contempt motion was outstanding, on the conditions that (i) none of the documents produced or answers given would be used or relied upon by the plaintiffs on their contempt motion, and (ii) the delivery of documents or answers would not amount to a waiver of Dr. Saad’s rights on the contempt motion. The plaintiffs did not agree to these conditions. Dr. Saad then advised that he would defer delivering responses to outstanding undertakings pending the outcome of the contempt motion. Dr. Saad’s counsel has advised that he continues to review his records, identify outstanding documents, and make appropriate inquiries of third parties in order to deliver answers to undertakings when he is required to do so.

[156] The plaintiffs submit that Dr. Saad and Mohammed should not be relieved of their disclosure obligations under the Saad Mareva Order and the Mohammed Mareva Order because ss. 7, 11(c), and 13 of the Charter do not operate prospectively to relieve Dr. Saad and Mohammed of their disclosure obligations under subsisting Court orders. The plaintiffs contend that the effect would be to reward Dr. Saad and Mohammed for their breaches of the Saad Mareva Order.

[157] The plaintiffs submit that s. 11(d) of the Charter does not affect Dr. Saad’s obligation to answer undertakings and creates only a narrow right against testimonial self-incrimination in respect of the offence charged in the contempt motion, a right that is not engaged on this motion. The plaintiffs submit that s. 13 of the Charter is not engaged because the contempt motion is not “other proceedings”. The plaintiffs submit that s. 7 of the Charter creates only a residual protection against self-incrimination which, in the specific context of this motion, is not engaged because there is no functional gap that needs to be filled through the application of s. 7.

[158] Dr. Saad, supported by Mohammed, relies on two authorities that, he submits, supports his position that he should not be compelled to answer undertakings including by producing documents while the contempt motion is pending.

[159] In Oesterlund v. Pursglove, 2015 ONSC 6145, the respondents brought two motions, to strike the applicants’ pleadings and for contempt of court. The court was required to address the sequence of the motions. The motion judge stayed the motion to strike, holding that when the contempt motion was brought, the applicant’s right not to testify and against self-incrimination were triggered and, given that the evidentiary record on both motions would be essentially the same, the applicant’s rights would be eviscerated if the motion to strike proceeded before the contempt motion was decided. The motion judge stayed the motion to strike. See Oesterlund, at paras. 16-18.

[160] Dr. Saad also relies on Lonnenberg where the motion judge would not permit cross-examination on an alleged contemnor’s list of assets given pursuant to a Mareva injunction while a motion for a contempt order was pending.

[161] 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.

[162] 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 are, in my view, valid, and they apply on these motions.

[163] 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.

[164] 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.

[165] The plaintiffs submit that documents required to be produced as part of Dr. Saad’s undertakings and documents required from Mohammed must be treated differently than other evidence.

[166] The plaintiffs submit that the documents of which they seek production by enforcing compliance with Dr. Saad’s undertakings, or by compelling Mohammed to produce documents, exist independently of any state compulsion and, therefore, there is no basis to resist production by reference to a right against self-incrimination. In support of this submission, the plaintiffs place particular reliance on British Columbia (Securities Commission) v. Branch, 1995 CanLII 142 (SCC), [1995] 2 S.C.R. 3.

[167] In Branch, the British Columbia Securities Commission issued and served summonses under statutory authority compelling two corporate directors to attend for an examination and to produce records in their possession. Their counsel stated on their behalf that the investigation appeared to be preliminary to possible criminal or quasi-criminal charges, and that they would rely on their right to remain silent and would not submit to an investigation or disclosure. The Commission petitioned for an order committing the directors in contempt and, in response, the directors asked for a declaration that the applicable provision of the Securities Act violates subsections 7, 8, 9 and 15 (1) of the Charter.

[168] In Branch, the Court considered s. 7 of the Charter and held that the liberty interest under s. 7 is engaged at the point of testimonial compulsion. Once it is engaged, the investigation then becomes whether or not there has been a deprivation of this interest in accordance with the principles of fundamental justice. The appeal raised the possibility of documentary compulsion which entailed jeopardy in so far as it engaged the appellants’ liberty interest. Sopinka J. and Iacobucci J., writing for the plurality held, at para. 48:

Accordingly, so far as S. (R.J.) bears on this issue, the documents are properly compellable unless they are excluded on the basis of the principles mentioned above. The rationale both at common law and under section 7 of the Charter for these principles is that in certain circumstances compellability would impinge on the right to silence. This right, however, attaches to communications that are brought into existence by the exercise of compulsion by the state and not to documents that contain communications made before such compulsion and independently thereof. The participation of the compelled witness in the process of production is a relevant consideration, in so far as the state may lack alternate means of acquiring the information.

[169] At the time of the compulsion in Branch, there were no ongoing criminal or quasi-criminal charges. The documents were sought at the inquiry stage under the Securities Act. This is an important distinguishing feature of Branch. The Court, at para. 40, held that the purpose of the Act justifies inquiries of limited scope and legitimately compels testimony. The predominant purpose of the inquiry was to obtain relevant evidence for the proceedings and not to obtain incriminating evidence against the directors. With respect to documents, the Court, at para. 46, identified the issue as whether their production can be compelled in the investigative proceeding and not their subsequent use. The Supreme Court was not called on the decide whether a person charged with an offence could be compelled to assist the prosecutor in an ongoing criminal or quasi-criminal prosecution by producing documents.

[170] The plaintiffs also cite R. v. D’Amour, 2002 CanLII 45015 (ON CA) in support of their submissions. In D’Amour, the appellant, who was convicted of fraud, contended on appeal that her constitutional rights under s. 7 of the Charter were violated by the manner in which the police acquired documents from the Community Service Department of the City of Toronto that provided proof of the fraud. The appellant provided T4 slips to the Department as required in order to apply for assistance under a statute. The appellant contended that she was effectively forced to produce the T4 slips to the Department and that the subsequent use of those documents to prosecute her amounted to a violation of the principle against self-incrimination. In addressing this argument, Doherty J.A. first explained the rational behind the principle against self-incrimination:

The rationale driving the principle against self-incrimination is as simple as it is important. Where the state alleges wrongdoing, it cannot force the target of that allegation to assist the state in proving the allegation. This rationale reflects the high premium placed on personal autonomy and individual privacy by the principles of fundamental justice. Those principles start from the premise that individuals are entitled to choose whether to co-operate with the state and, if they choose not to, to be left alone by the state. The rationale underlying the principle also reflects the hard learned lessons of history. Conscripted evidence is notoriously unreliable and the line between state compulsion and state abuse can be a fine one.

[171] Doherty J.A. explained that this rationale addresses those situations in which it can be said that the evidence that the state seeks to use was created by the person against whom the state seeks to use it. However, Doherty J.A. held that documents that exist prior to, and independent of, any state compulsion do not constitute evidence “created” by the person required to produce those documents. Doherty J.A. held, at para. 37, citing Branch and other authorities, that “[w]ith certain narrow exceptions, neither the compelled production of such documents, nor the subsequent use in a criminal proceeding of such documents, attracts the protection of the principle against self-incrimination”.

[172] Mohammed and Dr. Saad submit that the plaintiffs’ reliance on Branch, Thomson, Fitzpatrick, and D’Amour is misplaced because in those cases, the state did not conscript the accused to aid in his own prosecution by being compelled to produce documents in an ongoing criminal or quasi-criminal proceeding. Mohammed and Dr. Saad contend that the plaintiffs, by seeking an order compelling them to produce documents to aid the plaintiffs in their contempt motion, are doing exactly that, which violates the principle against self-incrimination included in the protections under s. 7 of the Charter.

[173] Mohammed and Dr. Saad submit that the governing authority is not Branch, but a later decision of the Supreme Court of Canada in R. v. Jarvis, [2002] 3 S.C.R. 73.

[174] In Jarvis, the Supreme Court of Canada was called on to decide whether the statutory audit powers in the Income Tax Act for compelling statements and documents could be used for the purposes of a criminal prosecution. Iacobucci and Major JJ., writing for the Court, held, at para. 96, that where the predominant purpose of a particular inquiry is the determination of penal liability, s.7 of the Charter is engaged, and the taxpayer is not required to produce documents:

On the other hand, with respect to s. 7 of the Charter, when the predominant purpose of a question or inquiry is the determination of penal liability, the “full panoply” of Charter rights are engaged for the taxpayer’s protection. There are number of consequences that flow from this. First, no further statements may be compelled from the taxpayer by way of s. 231.1(1)(d) for the purpose of advancing the criminal investigation. Likewise, no written documents may be inspected or examined, except by way of judicial warrant under s. 231.3 of the ITA or s. 487 of the Criminal Code, and no documents may be required, from the taxpayer or any third party for the purpose of advancing the criminal investigation. CCRA officials conducting inquiries, the predominant purpose of which is the determination of penal liability, do not have the benefit of the ss. 231.1(1) and 231.2(1) requirement powers.

[175] 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.

[176] I do not agree that Branch 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.

[177] 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.

[178] Mohammed is not required to produce the requested documents to the plaintiffs for use on the contempt motion.

The Trust Ledger Information

[179] For reasons I have given, Dr. Saad and Mohammed are not required to produce information from their lawyers’ trust ledgers for use on the contempt motion. This would require them to assist in the prosecution of the contempt motion by compelling them to obtain and produce documents and information which the plaintiffs reserve the right to use for purposes of the contempt motion.

[180] On his examination, Dr. Saad did not undertake to provide information from his lawyers’ trust ledgers. This information is, therefore, in a different category than information that Dr. Saad undertook to provide.

[181] Dr. Saad has not provided evidence in response to the plaintiffs’ motion to compel answers to questions he refused to answer on his examination, including information from his lawyers’ trust ledgers. He submits that, in the absence of such evidence, he would be prejudiced if the motion were to be decided without his evidence and, therefore, the refusals motion that will decide whether the information sought is protected from disclosure by solicitor-client privilege should not be heard now.

[182] The hearing of the refusals motion against Dr. Saad should be adjourned and heard on a full record after the contempt motion has been heard and decided.

The Disclosure Motion by Dr. Saad and Mohammed

[183] Dr. Saad and Mohammed move for an order compelling the plaintiffs to make additional disclosure of information and documents in their possession, power and control that are relevant to the contempt motion including, but not limited to, information and documents set out in their disclosure requests.

[184] Dr. Saad and Mohammed rely on the principles stated in Vale Inco Ltd. v. YSM Local 6500, 2010 ONSC 3039 in respect of disclosure obligations on civil contempt motions. The plaintiffs agree that Vale is the leading authority.

[185] In Vale, the Court was asked to particularize the disclosure obligations of the moving party on a motion for civil contempt against a union and certain of its members. The union asked the moving party to make full disclosure of all relevant evidence in its possession on the ground that the disclosure obligations are akin to those in criminal prosecutions as provided for in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. Gordon J. held that against the interest of the alleged contemnors to make full answer and defence is to be balanced the interests of the administration of justice in ensuring that allegations of noncompliance with orders of the court are to be dealt with expediently, particularly when the dispute between the litigants is ongoing and the court’s decision may have an effect on the conduct of the parties.

[186] Gordon J. explained the nature and extent of disclosure obligations in civil contempt motions, at paras. 7-9:

7 I am not so certain that the Stinchcombe disclosure obligations will exist in every motion for civil contempt. In my view, the nature and extent of the disclosure obligations need to be decided on a case-by-case basis, having regard to such issues as:

(1) The relief being sought by the party bringing the motion for contempt. If the motion is brought essentially for the purpose of ending the unlawful conduct that is one thing; if the motion is brought with a request for significant penal sanction, that is another thing entirely;

(2) Whether the alleged contempt is ongoing, resulting in an urgent need to preserve order and protect the authority of the court;

(3) if the alleged contempt is not ongoing, whether the relationship between the parties is such that the impugned conduct might reasonably be expected to resume without timely intervention by the court;

(4) The nature of the conduct alleged; and

(5) The nature and extent of the materials of which disclosure is sought and the time expected to produce it.

8 The Ontario Court of Appeal in the case of R. v. Ross (1984), 1984 CanLII 3611 (BC SC), 15 C.C.C. (3d) 177 (B.C. Co. Ct.)[^2], in dealing with the offence of criminal contempt in the face of the court, held that it is incumbent upon the court, when conducting such proceedings, to ensure that the alleged comptemnor has a fair trial in accordance with the principles of fundamental justice. However, the court added the following caveat:

In setting forth these rights it must be borne in mind, however, that there may be very exceptional cases where the circumstances are so compelling and the need for action on the part of the presiding judge so urgent to preserve the order and protect the authority of the court that some limitation on such rights, particularly with respect to time, may be justified. Where such circumstances exist, the limitation sought to be imposed will have to be considered in the light of the provisions of s. 1 of the Charter. Simply put, it is a matter of the common law continuing to evolve as it has done for centuries but henceforth, in Canada, evolve within the framework provided by the Charter to safeguard individual rights. Each case will have to be decided on its own particular facts after applying the proper legal principles.

9 This seems to me, a reasonable approach. In the context of proceedings for civil contempt I would expect that full disclosure would be expected in most cases. However, in each case it will be important for the court to consider the factors outlined above. It will be important for the court to consider whether the purpose for which disclosure is being sought is legitimate. It will be important for the court to consider whether the ends of justice are best met by making the requested order.

[187] In Blatherwick v. Blatherwick, 2016 ONSC 7247, the motion judge considered the disclosure obligations in a criminal context in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 on a motion for contempt of court in a civil proceeding.

[188] The Vale factors when applied to these motions show:

(a) The plaintiffs do not seek incarceration or similar penal sanctions. The plaintiffs seek “a suitable, non-penal, sanction” if Dr. Saad, following a hearing on sections, fails to purge his contempt. The requested non-penal sanctions include (i) an order precluding Dr. Saad from taking any further step in this proceeding until he has complied with the Saad Mareva Order; (ii) an order striking the statement of defence of Dr. Saad; and (iii) an order granting judgment against Dr. Saad in the amount of USD $3,472,821,045. The plaintiff seeks similar non-penal sanctions against Mohammed.

(b) The plaintiffs allege that the conduct by Dr. Saad and Mohammed that, they allege, is in contempt of the Saad Mareva Order, is ongoing.

(c) The nature of the conduct alleged to be in contempt of the Saad Mareva Order involves using assets that were frozen by the Saad Mareva Order to pay for Dr. Saad’s ordinary living expenses and legal expenses. The plaintiffs allege that in the absence of timely judicial intervention, this conduct will continue.

(d) Dr. Saad and Mohammed make eighteen disclosure requests (twelve by Dr. Saad and five additional requests by Mohammed). The requested disclosure is very broad and includes requests that relate to the merits of the underlying civil action which, Dr. Saad and Mohammed submit, are in issue based on the plaintiffs’ notice of motion and which, they contend, the plaintiffs have not shown are “clearly irrelevant”. The plaintiffs submit that the requested disclosure is not for a legitimate purpose because the requested information is relevant to the merits of the underlying fraud allegations, not the breach of the Saad Mareva Order.

[189] The plaintiffs’ Notice of Motion for their contempt motion specifies the grounds for the motion. The first ground is a statement that “[t]he Plaintiffs are the victims of a massive international fraud, orchestrated by Saad Aljabri, through which at least USD 3.5 billion has been stolen, misdirected and misappropriated (the “Fraudulent Scheme”). Saad Aljabri perpetrated the Fraudulent Scheme with the assistance of various co-conspirators, including his son, Mohammed Aljabri”.

[190] Dr. Saad and Mohammed submit that this statement in the Notice of Motion makes the existence of the alleged fraudulent scheme a relevant issue on the contempt motion, and justifies several of their disclosure requests. Dr. Saad, supported by Mohammed, also submits that information related to the existence of the fraud is relevant to his credibility which is in issue, generally, on the contempt motion.

[191] I disagree that the Notice of Motion should be so read. The Plaintiffs obtained the Saad Mareva Order and the Mohammed Mareva Order after having established, to the satisfaction of the judges who made the orders, a strong prima facie case of fraud on a preliminary assessment of the merits. The Notice of Motion for the contempt motion seeks remedies against Dr. Saad and Mohammed for alleged contemptuous conduct that is described at sub-paragraphs (kk), (ll), and (mm):

(kk) Despite their knowledge of the order, and Saad Aljabri’s failure to seek an exemption to the application of the worldwide freeze, Saad and Mohammed Aljabri have intentionally engaged in conduct in breach of the Saad Mareva Order by, among other things, using assets frozen by the Saad Aljabri Mareva order for funding, at a minimum, Saad Aljabri’s ordinary living expenses and the legal expenses he has incurred in Ontario, the United States and a number of other foreign jurisdictions.

(ll) Saad Aljabri has provided sworn evidence to such effect, acknowledging that Mohammed Aljabri funded his Canadian litigation expenses until June 2021, and that Mohammed Aljabri funnelled money to Saad Aljabri’s “house manager” to pay for his family’s living expenses after the Saad Mareva Order was granted. These payments were made by Mohammed Aljabri from the assets “gifted” by Saad Aljabri, which this Court has found to be frozen by the Saad Mareva Order. As such, Mohammed Aljabri and Saad Aljabri are, by their own admissions, in direct breach of the Saad Mareva Order.

(mm) Further, Saad Aljabri, Mohammed Aljabri and other defendants have used funds frozen by the Saad Mareva Order to pay significant legal fees associated with contesting the merits of this litigation in foreign jurisdictions as the Plaintiffs have moved to enforce the orders granted by this Court.

[192] On their contempt motion, the plaintiffs rely on the Saad Mareva Order and allege that Dr. Saad and Mohammed intentionally engaged in conduct in contravention of this order. I read the first ground of the plaintiffs’ Notice of Motion as a statement of the plaintiffs’ allegation of fraud against the defendants in the underlying action, one that provides context for the alleged non-compliance with the Saad Mareva Order.

[193] Dr. Saad and Mohammed also point to paragraphs 3-7 of the affidavit of Abdulaziz Alnowaiser filed in support of the plaintiffs’ contempt motion as containing allegations of fraud that makes the existence of the alleged fraud relevant to the contempt motion. Under the heading “Background of the Action and the Mareva Orders” the deponent refers to an investigation that was undertaken pursuant to which the plaintiffs are said to have developed “overwhelming evidence of fraud” and, accordingly, they commenced an action against Saad, Mohammed and other named defendants. The deponent states that the investigative report concluded that large amounts of money “could be traced” to Saad in addition to a large sum of “indirect payments of misappropriated funds from other individuals involved in the fraudulent scheme”.

[194] These paragraphs of the affidavit state the evidence that was presented to the court in support of the motion that resulted in the Saad Mareva Order. This is shown by paragraph 8 of the affidavit which states “[o]n the basis of that record” the Saad Mareva Order was granted. When I read the Notice of Motion with these paragraphs of the supporting affidavit, the existence of the alleged fraud is not put into issue for the relief sought on the contempt motion. To require full disclosure of information and documents relating to the alleged fraud would lead to full discovery of the issues in the action. This would undoubtedly be a large undertaking that, in my view, would very likely unreasonably delay the determination of the contempt motion.

[195] In Vale, at para. 9, Gordon J. held that in each case, the court must consider whether the ends of justice are best met by making the requested order. To require the plaintiffs to provide disclosure directed to the existence of the fraud would likely lead to prolonged and comprehensive discovery on matters that are irrelevant to the question on the contempt motion of whether Dr. Saad or Mohammed used frozen funds to pay for Dr. Saad’s living expenses and legal expenses. I do not require the plaintiffs to respond to disclosure requests for information relevant to the existence of the alleged fraud or to broad requests for information that is said to be only relevant, generally, to Dr. Saad’s credibility. I conclude that the interests of justice would not be met by requiring the plaintiffs to respond to such broad disclosure requests.

[196] Dr. Saad and Mohammed submit that the form of the responses to their disclosure requests, letters from the plaintiffs’ lawyers, does not comply with the requirements for such responses in respect of either relevance or whether the plaintiffs have possession of the information or documents requested. Although under Stinchcombe, “the burden is on the Crown to justify its refusal to disclose”, I was not directed to an authority that states that an affidavit is needed to discharge this burden.

[197] Counsel for Dr. Saad was not able to direct me to an authority which held that the response to a disclosure request providing information or responding that no additional responsive information or documents are in the possession or control of the party must be provided by affidavit. In my view, the sufficiency of the form of responses to disclosure requests should be determined on a case by case basis. On this motion, the letters written by plaintiffs’ counsel in response to the disclosure requests are sufficient.

[198] I address below each of the issues in respect of which Dr. Saad and Mohammed seek disclosure of information and documents within the possession, power or control of the plaintiffs.

(a) The validity of Dr. Saad’s gift of his assets to Mohammed.

[199] The plaintiffs’ response is that the relevant evidence is included in the plaintiffs’ motion materials and includes information that the plaintiffs obtained from Dr. Saad in his declaration of assets and cross-examination and answers to undertakings thereon, and from Mohammed in his affidavits in support of the jurisdiction motion and information obtained during cross-examination on those affidavits and in answers to undertakings.

[200] The plaintiffs also refer to documents obtained in foreign proceedings brought to enforce the orders made by the Ontario court, copies of which have previously been provided to Dr. Saad and Mohammed in those proceedings.

[201] Dr. Saad’s response is that the plaintiffs have failed to disclose the information in a reasonably accessible format.

[202] This request has been answered.

[203] The plaintiffs are directed to identify the information referenced in their response in the contempt motion records.

(b) Dr. Saad’s fear in the period in and after 2017 that his life was at risk because of his prior association with any of the plaintiffs, the government of the kingdom of Saudi Arabia, and/or any agent or agency thereof.

[204] The plaintiffs response is that the information requested is not in their possession and is irrelevant. The plaintiffs point out that they are a group companies and not the government of Saudi Arabia or an agent thereof.

[205] This request has been answered.

(c) Saudi law or practice relating to the gift of large sums of money by persons in the rank and position of the Crown Prince to persons of the rank and position of Dr. Saad.

[206] The plaintiffs’ response is that the evidence available to the plaintiffs relevant to this issue has been previously produced as part of these proceedings including the affidavits of Abdulaziz Al Fahad dated January 17, 2021 and February 10, 2021. The plaintiffs also respond that no such documents are relevant to the plaintiffs’ contempt motion.

[207] This request has been answered.

(d) Events in or after 2017 related to any attempts to kill or otherwise harm Dr. Saad or members of his family.

[208] The plaintiffs’ respond that the information requested is not in their possession and is irrelevant.

[209] This request has been answered.

(e) Dr. Saad’s assets since January 22, 2021.

[210] The plaintiffs respond that Dr. Saad deposed to this and provided the supporting documents that are contained in the motion materials. They add that pursuant to a Norwich order granted by Justice Gilmore on January 22, 2021, the plaintiffs also possess bank statements from certain of Dr. Saad’s Canadian bank accounts showing account balances past January 22, 2021, copies of which will be produced. The plaintiffs respond that they have produced all relevant documents regarding this issue.

[211] This request has been answered, provided that the plaintiffs are required to produce the documents they obtained pursuant to the Norwich order.

(f) Dr. Saad’s use of funds since January 22, 2021.

[212] The plaintiffs respond that Dr. Saad and Mohammed deposed to this and provided the supporting documents that are contained in the motion materials. They respond that they have produced all relevant documents regarding this issue.

[213] This request has been answered.

[214] The plaintiffs are required to direct Dr. Saad and Mohammed to the location of the responsive documents in the motion materials.

(g) The source(s) of any funds used to pay for Dr. Saad’s legal or living expenses since January 22, 2021.

[215] The plaintiffs respond that Dr. Saad and Mohammed deposed to this and their relevant admissions are contained in the motion materials. The plaintiffs respond that they have produced all relevant documents.

[216] This request has been answered.

[217] The plaintiffs are required to direct Dr. Saad and Mohammed to the location of the responsive documents in the motion materials.

(h) Any services Dr. Saad provided to the government of the Kingdom of Saudi Arabia or to Mohammed bin Nayef.

[218] Dr. Saad and Mohammed make this request for this information on the ground that it is relevant to the existence of the alleged fraudulent scheme.

[219] The plaintiffs respond that this information is irrelevant and amounts to a request for information seeking to collaterally attack the Saad Mareva Order.

[220] The existence of the alleged scheme is not relevant to the issue on the contempt motion, whether Dr. Saad or Mohammed breached the Saad Mareva Order by using frozen assets to pay for Dr. Saad’s ordinary living and legal expenses. I do not require the plaintiffs to provide disclosure of the requested information.

(i) Dr. Saad’s role as an official or agent of the government of the Kingdom of Saudi Arabia or Mohammed bin Nayef.

[221] Dr. Saad and Mohammed submit that this item is relevant to the existence of the alleged fraudulent scheme.

[222] The plaintiffs respond that information responsive to this request is irrelevant to the motion.

[223] For reasons I have given, I do not require the plaintiffs to provide the requested disclosure.

(j) Any amounts paid or transferred to Dr. Saad by the King or Kingdom of Saudi Arabia or by Mohammed bin Nayef.

[224] Dr. Saad and Mohammed submit that this item is relevant to the existence of the alleged fraudulent scheme.

[225] The plaintiffs respond that this is irrelevant to the motion.

[226] For reasons I have given, I do not require the plaintiffs to provide the requested disclosure.

(k) The relationship between the plaintiffs and the government of the Kingdom of Saudi Arabia, including Mohammed bin Salman.

[227] Dr. Saad and Mohammed submit that this item is relevant to the existence of the alleged fraudulent scheme.

[228] The plaintiffs respond that this is irrelevant to the motion.

[229] For reasons I have given, I do not require the plaintiffs to provide the requested disclosure.

(l) The relation, past or present, between Dr. Saad and any of the plaintiffs, Mohammed bin Nayef, Mohammed bin Salman, or the government of the Kingdom of Saudi Arabia.

[230] Dr. Saad and Mohammed submit that this item is relevant to the existence of the alleged fraudulent scheme.

[231] The plaintiffs respond that this is irrelevant to the motion and overbroad.

[232] For reasons I have given, I do not require the plaintiffs to provide the requested disclosure.

(m) Mohammed’s knowledge of Dr. Saad’s fear in and after 2017 that his life was at risk, and any basis for belief in the reasonableness of that fear.

[233] The plaintiffs respond that they do not have information regarding this item which, they submit, is, in any event, irrelevant.

[234] The plaintiffs’ response addresses this request.

(n) Mohammed’s assets, whether owned by him directly or indirectly, legally or beneficially, since January 22, 2021.

[235] The plaintiffs respond that they have no additional information regarding Mohammed’s assets, other than his declaration of assets affirmed August 19, 2021 and has cross-examination transcript, which have been disclosed.

[236] This request has been answered.

(o) Mohammed’s expenditure of funds and alleged use or dissipation of funds or assets, directly or indirectly, since January 22, 2021.

[237] The plaintiffs respond that they have produced all relevant documents regarding this issue in their contempt motion record in the documents include asset declarations, affidavits and transcript of evidence of Dr. Saad and Mohammed, as well as supporting documents and answers to undertakings that were provided.

[238] This request has been answered.

(p) The source(s) of any funds used to pay legal or living expenses by, of, on behalf of, or associated with Dr. Saad and/or Mohammed has since January 22, 2021.

[239] The plaintiffs respond that they have produced all relevant documents regarding this issue in the contempt motion record.

[240] This request has been answered.

(q) Any amounts paid or transferred to Mohammed, directly or indirectly, or for his account or benefit, by the plaintiffs or the Kingdom of Saudi Arabia or any agent or agency thereof, or by Mohammed bin Nayef, and any information and/or documents relating to the authorization of those amounts.

[241] Mohammed relies on submissions in paragraphs 29-45 of Dr. Saad’s factum in respect of this disclosure request.

[242] This request relates to the existence of the alleged fraudulent scheme. For reasons I have given, I do not require the plaintiffs to provide disclosure of the requested information.

(r) The relationship, past or present, between Mohammed and the following: a. any of the plaintiffs; b. Mohammed bin Nayef; c. Mohammed bin Salman; d. The government of the Kingdom of Saudi Arabia.

[243] Mohammed relies on submissions in paragraphs 29-45 of Dr. Saad’s factum in respect of this disclosure request.

[244] This request relates to the existence of the alleged fraudulent scheme. For reasons I have given, I do not require the plaintiffs to provide disclosure of the requested information.

[245] The documents on which the plaintiffs rely were produced in a searchable format. However, Dr. Saad and Mohammed submit that the responses to many disclosure requests refer only generally to information in the motion materials without identifying where in these materials the information is found. Where the plaintiffs have responded that the requested information is included in the motion materials on the contempt motion, including in transcripts or answers to undertakings, they are required to identify the responsive information in these materials.

Mohammed’s Motion to Stay Contempt Proceedings

[246] Mohammed moves for an order staying the contempt motion pending disposition of his appeal from the order of Gilmore J. dated June 22, 2021 dismissing his motion challenging the jurisdiction of the Ontario Court.

[247] The appeal is scheduled for argument before the Court of Appeal for Ontario on January 19, 20212.

[248] The contempt motion is scheduled to be heard on February 3 and 4, 2022.

[249] In support of his motion, Mohammed relies on the three part test for an injunction or a stay in RJR-MacDonald Inc. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311. The moving party is required to demonstrate that (i) there is a serious question to be determined on the appeal; (ii) the moving parties will suffer irreparable harm if the stay is not granted; and (iii) the balance of convenience favours granting the stay. These three factors are not “watertight compartments”, and the strength of one factor may compensate for the weakness of another. The overarching question is whether it is in the interests of justice to grant the stay.

[250] The first step of the test, showing that the appeal raises a serious issue, presents a low threshold: Circuit World Corp. v. Lesperance, 1997 CanLII 1385 (Ont. C.A.), at p. 5. On a motion for a stay, the court should not extensively review the merits of the appeal. Under this branch of the test, the party seeking a stay must demonstrate that the appeal is not frivolous or vexatious. In her decision dismissing the motion to stay the Order of Gilmore J. dismissing the jurisdiction motion so that the underlying action awaits the determination of the appeal, Benotto J.A. concluded that although she “cannot say the appeal is frivolous, the merits of the appeal lean to favour the plaintiffs”.

[251] Mohammed submits that the appeal raises several serious legal errors that undermine the motion judge’s decision including (a) misapplying the test for the presumptive connecting factor of a contract connected with the dispute made in the province; (b) relying on the use of proceeds of an alleged fraud to acquire property in Ontario to assume jurisdiction; (c) relying on considerations of efficiency to ground jurisdiction over the claim as a whole; (d) relying on connections between other, non-foreign, defendants and Ontario to assume jurisdiction over the foreign defendants; and (e) applying the wrong test for locating the tort of conspiracy for jurisdictional purposes. Mohammed also submits that the motion judge made a palpable and overriding errors of fact in her jurisdictional analysis including finding, for purposes of the motion, that the Gift Deed was a “ruse”.

[252] The plaintiffs, although they do not accept that the appeal has merit, do not submit that there is not a serious question to be determined on the appeal.

[253] I am satisfied that Mohammed has met the threshold for showing that there is a serious question to be determined on the appeal.

[254] Mohammed submits that he will face irreparable harm in two ways if a stay is not granted: (i) Mohammed will be forced to face quasi-criminal contempt proceedings, which could lead to drastic penal and non-penal sanctions, while both the purported findings on which the plaintiffs’ contempt motion is premised and the Court’s jurisdiction over Mohammed remain to be finally determined; and (ii) if the contempt motion proceeds against Dr. Saad alone pending the determination of the appeal, Mohammed will be prejudiced in defending the plaintiffs’ contempt motion against him after the appeal is determined.

[255] With respect to the first way in which Mohammed asserts that he will suffer irreparable harm, I have held that the findings and conclusions in the Prior Rulings, including the decision of Gilmore J. on the jurisdiction motion, are inadmissible in evidence on the contempt motion. The evidence that was before Gilmore J. will be before the judge hearing the contempt motion and, as the plaintiffs correctly state, it will be open to the judge hearing the contempt motion to make his or her own findings regarding the validity of the gift. The decision of the Court of Appeal with respect to findings made by Gilmore J. on the jurisdiction motion will not affect the record before the judge who hears the contempt motion.

[256] With respect to Mohammed’s second assertion of the way in which he will face irreparable harm if a stay is not granted, this would only become relevant if a stay of the contempt motion against Mohammed is granted, and the motion proceeded only against Dr. Saad. Mohammed will not face irreparable harm on this basis if the contempt motion proceeds against both.

[257] With respect to the balance of convenience, Mohammed submits (i) if the jurisdiction appeal is successful, the contempt proceeding against Mohammed will be stayed for lack of jurisdiction and waiting until the outcome of the appeal is known before proceeding represents an efficient use of court resources; (ii) the appeal will be heard on January 19, 2022 and the contempt proceedings are currently scheduled to be heard February 3 and 4, 2022. There will be minimal delay of the stay is granted; and (iii) the harm from a stay will be minimal where the plaintiffs have obtained a worldwide Mareva order freezing all of Mohammed’s worldwide assets.

[258] The contempt proceedings have been brought because the plaintiffs assert that Mohammed and Dr. Saad have violated, and continue to violate, the Saad Mareva Order by using frozen funds to pay for Dr. Saad’s ordinary living expenses and his legal expenses. Given these serious allegations, the protection afforded by the Mohammed Mareva order is not determinative on where the balance of convenience lies. I also do not give significant weight to the factor of the efficient use of court resources, given the nature of the issues in this litigation and the amounts in dispute. In addition, if a stay were to be ordered, the plaintiffs’ efforts to enforce compliance with the Saad Mareva Order through a contempt motion will be delayed, perhaps for several months. If the plaintiffs are right that assets are being dissipated, this conduct would be allowed to continue, and the plaintiffs would be materially prejudiced.

[259] The purpose of a Mareva and asset disclosure order, and the risk of prejudice to the party who benefits from the protection of such an order, are important considerations on a motion such as this, and these considerations must be weighed against the prejudice to the party who is subject to the order of proceeding with the contempt motion while jurisdiction is being challenged.

[260] The plaintiffs undertake that if a contempt order is made against Mohammed and he fails to purge his contempt and if, following a sanctions hearing, sanctions are imposed, they will not seek to enforce or enter any sanctions until the Court of Appeal has released its decision on the jurisdiction appeal (but not until any subsequent application for leave to appeal to the Supreme Court of Canada). I accept that this undertaking substantially diminishes the prejudicial effect to Mohammed of allowing the contempt motion to proceed pending the decision on the appeal of the jurisdiction motion.

[261] When I consider the three-part test in RJR MacDonald, I conclude that it would not be in the interests of justice for me to grant a stay of the contempt motion in favour of Mohammed pending the decision on the appeal of the jurisdiction motion.

Disposition

[262] For the foregoing reasons, orders to issue on these motions in accordance with these reasons.

[263] I ask counsel to provide me with one or more forms of orders that are approved. If there are disagreements about the forms of orders to be issued, I may be spoken to.

[264] If costs are not resolved, I may be spoken to and a timetable may be set for written submissions.

Cavanagh J.

Released: November 19, 2021

[^1]: The plaintiffs cite three other cases; R. v. Cremer, 2015 ONCJ 83; R. v. McDonald, 2013 BCSC 1977, and R. v. Jahanrakhshan, 2012 BCCA 341. In each of these decisions, evidence of the prior judicial rulings was admitted in a subsequent proceeding where the standard of proof was the civil standard.

[^2]: The Court of Appeal decision in which the passage quoted appears is R. v. Cohen (1984), 1984 CanLII 43 (ON CA), 48 O.R. (2d) 65.