Court File and Parties

COURT FILE NO.: CV-21-00655418-00CL DATE: 20230517 ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST)

BETWEEN:

SAKAB SAUDI HOLDING COMPANY, ALPHA STAR AVIATION SERVICES COMPANY, ENMA AL ARED REAL ESTATE INVESTMENT AND DEVELOPMENT COMPANY, KAFA’AT BUSINESS SOLUTIONS COMPANY, SECURITY CONTROL COMPANY, ARMOUR SECURITY INDUSTRIAL MANUFACTURING COMPANY, SAUDI TECHNOLOGY & SECURITY COMPREHENSIVE CONTROL COMPANY, TECHNOLOGY CONTROL COMPANY, and NEW DAWN CONTRACTING COMPANY and SKY PRIME INVESTMENT COMPANY 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 JABBARI, personally and as litigation guardian for SULAIMAN SAAD KHALID AL JABRI, KHALID SAAD KHALID AL JABRI, MOHAMMED SAAD KB AL JABRI, NAIF SAAD KH AL JABRI, SULAIMAN SAAD KHALID 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 PTD 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

Counsel: Munaf Mohamed KC, Amanda C. McLachlan and Jonathan G. Bell, for the Plaintiffs John J. Adair, Jordan Katz and Sean Pierce, for the Defendants, Saad Khalid S Al Jabri, 1147848 B.C. Ltd., 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, Sulaiman Saad Khalid Al Jabri, Hissah Saad KH Al Jabri, Saleh Saad Khalid Al Jabri and 2701644 Ontario Inc. Andrew Max and Emily Young, for the Defendants, Dreams International Advisory Services Ltd., New East (US) Inc., New East 804 805 LLC, New East Back Bay LLC, New East DC LLC, Mohammed Saad KB Al Jabri, Golden Valley Management Ltd, Ten Leaves Management Ltd. and New East International Limited

HEARD: April 25, 2023

Endorsement

McEwen, J.

[1] The moving party defendants, as represented by counsel above, (the “Moving Parties”) seek an order pursuant to rr. 34.07(2) and 39.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for the issuance of two letters of request directed to the judicial authorities in the Kingdom of Saudi Arabia (the “KSA”) to issue, as per the wording of r. 34.07(2)(b), “such process as is necessary to compel the person to attend to be examined”.

[2] The witnesses that the Moving Parties seek to examine are Yasir O. Al-Rumayyan and Fahad Nasser Alarfaj. The Moving Parties submit that Messrs. Al-Rumayyan and Alarfaj have relevant evidence to give on their motion to set aside the Mareva orders that this Court issued against the Moving Parties (the “Set Aside Motion”).

[3] The motion is unopposed by the plaintiffs.

[4] Insofar as the background to this motion is concerned, the Moving Parties assert that the KSA established the plaintiff companies in and around 2008 as commercial fronts for counterterrorism operations. They further assert that Saad Khalid S Al Jabri (“Dr. Al Jabri”) was a key contributor to these operations and frequently liaised with the governments of the United States and Canada.

[5] The Moving Parties also allege that the commercial fronts were established under the authority and direction of Mohamed Bin Nayef (“MBN”) as a member of the KSA’s royal family and later Crown Prince of the KSA. MBN was responsible for leading the KSA’s counterterrorism security and intelligence operations. Dr. Al Jabri claims that he was MBN’s closest and most trusted advisor.

[6] The Moving Parties further allege that as a result of a political coup in 2017, Mohamed Bin Salman (“MBS”) usurped MBN and began persecuting MBN and his colleagues. In a further effort to consolidate his authority, the plaintiffs assert that MBS directed that the plaintiff companies be brought under the ownership of the KSA’s Public Investment Fund (“PIF”), of which MBS is the Chair.

[7] In this litigation, the Moving Parties allege that MBS controls PIF, and by extension, all of the plaintiff corporations.

[8] As part of the Moving Parties’ defence in this action, they allege that MBS directed PIF to cause the plaintiffs to commence this litigation as part of MBS’ ongoing persecution against MBN’s allies, including the Moving Parties. They further claim that they are unable to properly defend themselves because extensive evidence is not available to them.

[9] Against this backdrop, the Moving Parties proposed to examine Messrs. Al-Rumayyan and Alarfaj with regard to current, unrelated litigation in the United States District Court for the Northern District of California (respectively the “LIV Golf Litigation” and the “California Court”). In the LIV Golf Litigation, the PGA Tour has sought discovery from PIF, which owns LIV Golf. Messrs. Al-Rumayyan and Alarfaj provided evidence in the LIV Golf Litigation about the nature and status of PIF.

[10] The Moving Parties allege in the Set Aside Motion that the evidence and briefings filed with the California Court directly contradict evidence provided to this Court. The Moving Parties submit that the plaintiffs adduced evidence in this Court that PIF is independent of the KSA and MBS, but PIF filed evidence in the California Court in which PIF took the position that it is part of the KSA government.

[11] Further, in this regard, the Moving Parties argue that the declarations provided by Messrs. Al-Rumayyan and Alarfaj contradict expert evidence provided to this Court from Abdulaziz Fahad, a law partner of Mr. Alarfaj.

[12] Based on the foregoing, in the Set Aside Motion, the Moving Parties have sought to set aside the Mareva orders on a number of grounds, two of which are relevant to this motion:

(i) an abuse of the Court’s process in the form of taking contradictory positions and filing contradictory evidence in this action and the LIV Golf Litigation; and

(ii) a breach of the obligation to make frank and full disclosure by failing to advise this Court of the PIF position that Saudi law prohibits disclosing evidence in foreign legal proceedings.

[13] A review of the filed record discloses that, prima facie, the proposed witnesses have relevant evidence to give in this action. It would therefore be in order that they be examined with respect to evidence given in the LIV Golf Litigation and the alleged contradictions between that evidence and the position taken in this action, their knowledge of both actions and related topics.

[14] While it remains to be seen whether the allegations of the Moving Parties are borne out, it is sufficient to note that the Moving Parties’ allegations on the Set Aside Motion render the evidence filed in the LIV Golf Litigation relevant to the issues on the Set Aside Motion.

[15] I am therefore of the view that the Moving Parties have satisfied the requisite provisions of r. 39.03. As stated by this Court in 1632842 Ontario Limited v. Great Canadian Gaming Corp., at para. 8:

A party seeking to examine a witness under rule 39.03 (1) has the onus to show on a reasonable evidentiary basis that the examination will be conducted on issues relevant to the pending motion and that the proposed witness is in a position to offer relevant evidence. If the evidence sought to be adduced from a non-party is relevant, there is a prima facie right to examine under rule 39.03(1) so long as the right is not exercised in a manner which constitutes an abuse of process. The onus is on the proposed witness to establish an abuse of process. [Citations omitted.]

[16] Furthermore, where a proposed witness resides outside of Canada, I am also satisfied that r. 34.07(2) provides this Court with the authority to direct the registrar to issue letters of request. This proposition has been clearly established by this Court in Moore v. Bertuzzi, 2014 ONSC 1318, at para. 30, wherein the Court stated:

In summary, before issuing a commission and letter of request there must be proper evidence before the court of what the moving party believes the evidence will be of the proposed witness such that the proposed examination is not simply a fishing expedition. The anticipated evidence must be material to an issue in the action, as opposed to a collateral matter, and must be more than merely corroborative of evidence of other witnesses. The request must be bona fide and there must be good reason why the witness cannot attend personally at trial. The overriding principle however in the granting of a commission is a fair and full trial. The determination is a matter of judicial discretion to be exercised according to the circumstances of each case.

[17] In my view, the requirements set out in Moore have been met in this case.

[18] Based on the above, on an unopposed basis, I grant the Order pursuant to r. 34.07(2) for the issuance of the two letters of request to be directed to the judicial authorities in the KSA and the draft order shall go as signed by me this day.

McEwen J. Released: May 17, 2023

COURT FILE NO.: CV-21-00655418-00CL DATE: 20230517 ONTARIO SUPERIOR COURT OF JUSTICE (COMMERCIAL LIST)

BETWEEN:

SAKAB SAUDI HOLDING COMPANY et al. Plaintiffs / Moving Parties – and – SAAD KHALID S AL JABRI et al. Defendants / Responding Parties

ENDORSEMENT

McEwen J.

Released: May 17, 2023