Superior Court of Justice – Ontario

Court File No.: CV-21-00655418-00CL
Date: 2025-03-28

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, 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 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

Before: Mark L. Cavanagh

Counsel:

• Munaf Mohammed K.C., Jonathan Bell, and Doug Fenton for the plaintiffs
• Jeff Larry and Greta Hoaken for Mohammed Aljabri, 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., New East International Limited, and New East Family Foundation
• John Adair and Sean Pierce for Saad Aljabri
• Andrew Matheson and Solomon McKenzie for Dreams International Advisory Services Ltd.

Heard: 2025-02-21

Endorsement

Introduction

[1] The defendants Saad Aljabri, Mohammed Aljabri and various corporate defendants[^1] bring this motion for an order varying the Mareva orders freezing their worldwide assets (the “Mareva Orders”) to permit the release of frozen funds for payment of their legal fees.

[2] Dreams International Advisory Services Ltd. (“Dreams”) is separately represented and seeks separate relief from the other moving parties.

[3] For the following reasons, I grant the relief sought by the moving parties (except Dreams) as set out in the “Disposition” section of this endorsement. I dismiss the motion by Dreams.

Factual Background

[4] This Court issued Mareva injunction orders against Saad Aljabri (“Dr. Aljabri”) in January 2021 (the “Saad Mareva Order”) and against his son, Mohammed Aljabri (“Mohammed”) and various corporate entities in August 2021 (the “Mohammed Mareva Order”). I refer to the defendants subject to these orders as the “Mareva Defendants”. These orders freeze the Mareva Defendants’ worldwide assets.

[5] Following the Mareva Orders, the Mareva Defendants provided sworn asset declarations on which they were cross-examined.

[6] A further Mareva Order was made in October 2021 against Dr. Aljabri’s wife Nadyah and their sons Naif and Sulaiman.

[7] In March 2024, the plaintiffs brought a motion under rule 60.12 for a finding that Dr. Aljabri, Mohammed, the corporate defendants and other Aljabri family members had breached the Saad Mareva Order and the Mohammed Mareva Order by dealing with frozen assets and, separately, had failed to pay significant costs awards. The defendants consented to an order that provides that they will move to release frozen funds to pay for legal and living expenses.

[8] In June 2024, the Mareva Defendants brought this motion for an order to vary the Mareva Orders to permit the release of frozen funds to pay for legal expenses. They did not move to vary these orders to permit the release of frozen funds to pay for living expenses.

[9] This action is scheduled for a trial in 2026 that is anticipated to take 12 weeks.

Analysis

[10] The criteria for varying a Mareva injunction to release frozen funds for living and legal expenses was set out in Canadian Imperial Bank of Commerce v. Credit Valley Institute of Business and Technology, para 26, and were adopted by the Court of Appeal in Waxman v. Waxman, 2007 ONCA 326, para 37:

(a) Has the defendant established on the evidence that he has no other assets available to pay his expenses other than those frozen by the injunction?

(b) If the answer to a. is yes, has the defendant established on the evidence that there are assets caught by the injunction that are from a source other than the plaintiff?

(c) The defendant is entitled to use assets not belonging to the plaintiff to pay reasonable living and legal costs. Such assets must be exhausted before the defendant is entitled to look to the plaintiff’s assets.

(d) If the defendant has met the above three tests and still requires funding for legitimate living fees and/or legal fees, the court must balance the competing interests of the plaintiff in not permitting the defendant to use the plaintiff’s money for his own purposes and the defendant in ensuring that he has a proper opportunity to present his defence in the action. In weighing the interests of the parties, the court should consider the strength of the plaintiff’s case, as well as the strength of the defendant’s defence.

[11] The defendant bears the onus of establishing that the Mareva order should be varied. The decision as to whether to vary a Mareva order is discretionary.

Have the Mareva Defendants shown that they have no other assets available to pay their legal expenses than those frozen by the Mareva Orders?

[12] I first address the question at the first stage of the Credit Valley analysis.

Effect of the Mareva Orders

[13] The Mareva Orders freeze the Mareva Defendants’ worldwide assets. These frozen assets are not available to fund legal expenses. See Caja Paraguaya De Jubilaciones v. Obregon, 2019 ONCA 198, para 7.

USD 37.5 million

[14] The plaintiffs submit that the Mareva Defendants have not accounted for USD 37.5 million (CAD 50 million) that was removed from bank accounts controlled by Dr. Aljabri and Mohammed in the six months following the issuance of the Mareva Order against Saad Aljabri. The plaintiffs submit that without accounting for these funds, the Mareva Defendants cannot show that they do not have access to other funds to pay for legal expenses. The plaintiffs submit that the Mareva Defendants have not established that they made full disclosure of their assets and they cannot disprove that the “third-party” funding for past legal expenses is, in fact, these defendants using frozen funds to pay for legal expenses.

[15] The fact that the $37.5 million has not been accounted for does not show, or support an inference, that this money, or any unspent balance of it, is available to pay for the Mareva Defendants’ legal expenses. If the funds in question, or some of them, are still available, they are subject to the Saad Mareva Order or the Mohammed Mareva Order. These funds are frozen and are not available to the Mareva Defendants to pay for legal expenses.

[16] I will address the issue regarding the accounting of this money when I engage in a balancing of competing interests at the last stage of the Credit Valley analysis.

Assets of Non-Moving Defendants

[17] The plaintiffs submit that the Mareva Defendants have access to funds for legal expenses through the assets available to members of the Aljabri family who are non-moving defendants and are not subject to Mareva orders.

[18] The plaintiffs rely on Waxman v. Waxman, 2007 ONCA 326 and authorities which have followed it in support of these submissions.

[19] In Waxman, a defendant moved to vary a Mareva Order to access frozen funds to pay for legal expenses. The affidavit in support of the motion was made by the defendant’s son who swore that there was an absence of third party sources of funds for legal expenses. When he was cross-examined, the deponent refused to answer questions about resources available to him and his father. The motion judge drew an adverse inference from these refusals that other family resources were used to pay for the moving defendant’s legal expenses. The motion judge, nevertheless, granted the variation order.

[20] On appeal, the Court of Appeal held that even if it were inappropriate to look beyond the assets of the moving defendant and his sons to determine whether any funds were available for the payment of legal fees, the moving defendant and his sons did not meet the onus of establishing that they personally had no other assets available to them, given that the moving defendant’s son had refused to answer questions about efforts to arrange for funding of legal fees or what family resources were being conserved for payment of the moving party’s medical fees. The Court of Appeal held that given the motion judge’s adverse inference and the many refusals, the motion judge had erred in finding that the moving defendant had established on the evidence that he had no unfrozen assets available to him to pay for his legal expenses.

[21] In Wayne Safety v. Gendelman, 2024 ONSC 1642, Osborne J. addressed the disclosure of assets made by the moving defendants when he addressed the question at the first stage of the Credit Valley analysis. Justice Osborne cited Waxman as holding that a defendant will not meet his onus if he refuses questions related to potential sources of income, and an adverse inference will be drawn if the defendant refuses to answer questions about his or her ability to finance living and legal expenses from other sources. Justice Osborne held that defendants that have not been forthcoming about their ability to draw on the assets of family and friends cannot meet their onus under the first branch of the Credit Valley analysis. Justice Osborne considered the evidence filed on behalf of the moving defendants and found that this evidence raised serious concerns about the deponent’s credibility and that the explanations offered as to disclosed sources of income lacked common sense. Justice Osborne concluded that the moving defendants had not satisfied their onus on the first branch of the Credit Valley analysis.

[22] I take the principles from Waxman into consideration when I address the question at the first stage of the Credit Valley analysis.

[23] On this motion, there was disclosure of the assets of family members of Dr. Aljabri and Mohammed, namely, Nadyah Aljabri (Dr. Aljabri’s wife), Khalid Aljabri (Dr. Aljabri’s son), and Hissah Aljabri (Dr. Aljabri’s daughter).

[24] The plaintiffs rely on evidence that Khalid Aljabri owns a villa and apartment complex in Cyprus which is not subject to a Mareva injunction and could be sold to pay for legal fees. This property is subject to an undertaking by Khalid Aljabri, accepted by the plaintiffs, that there will be no dealings with this property without an order of this court, with the proposed language of the undertaking to be provided to the court to be included in an endorsement. With this undertaking, this property is effectively frozen and cannot be sold. If the undertaking is released so that the property may be sold, this issue may be revisited to make any other order that is just.

[25] The plaintiffs rely on evidence that Khalid Aljabri owns four luxury cars that may be sold to pay for the defendants’ legal expenses. When he was cross-examined, Khalid Aljabri testified that he has four cars in his name, including a Tesla Cyber Truck that was ordered years ago with payment due in August 2024. He testified that this vehicle was registered in his name because his wife does not have a driver’s licence and his wife’s money was used to buy this vehicle. He testified that a Porsche SUV was a gift from his wife’s uncle and a Bentley was a gift from his wife’s father. A Tesla Model X was purchased with funds from his father.

[26] I find that these automobiles registered in the name of Khalid Aljabri are assets of Khalid Aljabri that are available to pay costs awards for which he is liable. The amounts that would be received as proceeds of sale will not be nearly sufficient to pay, in addition, the legal expenses of the defendants through to the completion of trial. The amount of any frozen funds to be released for payment of costs awards should take into account the value of these vehicles.

[27] The plaintiffs rely on evidence that Nadyah Aljabri owns a plot of land in Dubai worth approximately CAD 1.49 million and, separately, a house and two apartments of undisclosed value. The Mareva Order against Nadyah freezes assets in her name that were acquired with funds traceable to Saad Aljabri. The Mareva Defendants rely on Nadya Aljabri’s evidence that these properties were acquired using money traceable to Dr. Aljabri and they are frozen under the Mareva Order against Nadyah Aljabri. I confirm that these properties are frozen by the Mareva Orders. The result is that they are unavailable to fund payment of the defendants’ legal costs.

[28] The plaintiffs rely on evidence that Hissah Aljabri has cash assets of approximately $350,000 and owns a car purchased in 2022 for $70,000. She earns approximately $60,000 in annual employment income. Hissah’s evidence is that her monthly living expenses for her children and herself range from $16,000 to $20,000 and that she funds the deficiency from her cash assets. Her children are in elementary school and have special educational requirements. The private schools they attend where there is a special program were recommended by their physician.

[29] I accept that the $350,000 is needed for living expenses for Hissah and her children, and that her modest salary is also needed for these expenses. I am not satisfied that Hissah has assets that are available to be used to pay for the defendants’ legal expenses.

Availability of funding from third-party sources

[30] The plaintiffs submit that the fact that the defendants have been able to defend this action so far without release of funds frozen under the Mareva Orders, and have paid legal bills of approximately $8 million to Canadian counsel by June 2024, shows that the Mareva Defendants are unable to satisfy their onus at the first stage of the Credit Valley analysis. The plaintiffs also point to litigation in other jurisdictions where the Aljabri family continues to be represented by legal counsel. There was no evidence concerning the status of the foreign proceedings or the need for funding by the Aljabri family in these foreign proceedings.

[31] The plaintiffs submit that the Mareva Defendants’ assertion of privilege over details of the third-party funding arrangements does not excuse their refusal to answer questions about these arrangements and that an adverse inference should be drawn from these refusals, as was done in Waxman.

[32] The plaintiffs submit that this evidence makes it impossible for the Mareva Defendants to meet their onus at the first stage of the Credit Valley analysis.

[33] Dr. Aljabri and Mohammed provided evidence that their Canadian lawyers have not been paid for extended periods of time, have not all been paid in full, and they have no expectation that sufficient funds to finance a trial will be available. Dr. Aljabri deposes that Khalid has taken the lead on raising funds from arms-length third parties to fund the litigation and that there are no guarantees or expectations that this funding will continue. He deposes that his family is unable to properly and consistently fund their defence to this litigation without access to frozen funds.

[34] The plaintiffs submit that because the defendants have refused to answer questions about why these sources are no longer available, an inference should be drawn that funding for legal expenses from other sources remains available. The plaintiffs also submit that the Mareva Defendants have not shown that the money used to pay past legal expenses is not from frozen proprietary funds.

[35] I do not accept that the evidence that the defendants have been able to make substantial payments for legal expenses in the past using funds made available by third parties leads to a proper inference that reliable funding of legal expenses needed for the defendants to defend the action through to trial remains available from these sources.

[36] The defendants claimed privilege over the identities of the third parties who provided funds for legal expenses, and refused to disclose their identities or details of the funding on examinations. The assertion of privilege was upheld when a motion was brought. Unlike in Waxman, the refusals cannot be said to have been improper. I do not draw an adverse inference from the defendants’ assertion of privilege and reliance on privilege to justify refusals to answer questions concerning the third party funding arrangements. The assertion of privilege also does not justify an inference that the defendants have been using frozen funds to pay for legal expenses. I consider these circumstances when I engage in the balancing exercise at the last stage of the Credit Valley analysis.

[37] Several law firms that represent or have represented the Aljabri family provided evidence that they have had to carry substantial WIP and finance large disbursements. Former Canadian counsel from three law firms provided evidence that they have unpaid accounts of $1.239 million, $648,000, and $110,000. The general counsel for a U.S. firm that represented the Aljabri family deposes that the firm has unpaid accounts of US $226,806.

[38] The evidence from these lawyers shows that they have not been paid substantial amounts for fees and disbursements for legal services provided to the Aljabri family. This evidence also supports Dr. Aljabri’s evidence that obtaining third party funding for legal expenses has been uncertain and precarious.

[39] The amount of legal expenses needed over a compressed period of time to the conclusion of trial in the first half of 2026 will be substantial, given the nature and complexity of the action. Experts will need to be retained and paid. Proper preparation for trial will be needed. The trial will be lengthy, extending over many weeks. If they are to commit to representing the defendants through to trial, counsel will need to have confidence that their fees and disbursements for discharging their professional obligations will be paid.

[40] The Mareva Defendants have shown that all of their worldwide assets are frozen and unavailable to be used to pay for legal expenses. They provided affidavit evidence of their difficulty in obtaining reliable funding from third parties for payment of legal expenses. This evidence is supported by the evidence from law firms with substantial unpaid accounts. I am satisfied that the Mareva Defendants have shown that they do not have reliable access to assets through family members or third parties which would be sufficient to pay for the legal expenses which will be needed for the Mareva Defendants to be represented by legal counsel through to the conclusion of the trial.

[41] I am satisfied that the Mareva Defendants have satisfied their onus at the first stage of the Credit Valley analysis.

Have the Mareva defendants shown that there are assets caught by the Mareva orders that are from a source other than the plaintiff?

[42] At the second step of the Credit Valley analysis, the court must determine whether the Mareva Defendants have shown that there are assets caught by the Mareva orders that are from a source other than the plaintiffs.

[43] In Credit Valley, para 25, Molloy J. held that where the plaintiff has frozen assets and advanced an arguable case that those assets are subject to a proprietary claim by the plaintiff, there is an onus on the defendant to put forward credible evidence as to the source of the subject assets if the defendant seeks to use the funds for his own purposes. It is only where the defendant can demonstrate that the assets are from a source other than the plaintiff that the usual rules for variation of a Mareva will apply. Otherwise, the defendant’s right to use the funds will be subject to the balancing of interests in the exercise of the court’s discretion.

[44] I accept that the plaintiffs advanced an arguable case that the defendants’ assets are subject to a proprietary claim. The Mareva Defendants have the onus to put forward credible evidence as to the source of the funds they seek to use for their defence.

[45] The Mareva Defendants rely on evidence of Dr. Aljabri that he received a payment on January 28, 2015 in the amount of SAR 20 million (USD 5.3 million) as a bonus tied to his ministerial position. He deposes that he continued to receive transfers of SAR 5 million (USD 1.3 million) on a monthly basis beginning in March 2015 and until he was removed from his ministerial position in September 2015. These transfers totalled USD 9.1 million. The payments were made to a particular bank account.

[46] Dr. Aljabri deposes that on June 21, 2015, he transferred SAR 40 million to another bank account. On the same day, he transferred SAR 37,520,000 (USD 10 million) to his family’s investment portfolio with The Family Office (“TFO”) into a bank account at a bank in Switzerland.

[47] Mohammed provided evidence that the USD 10 million was placed in a portfolio account where it was commingled with other funds and the account held approximately USD 100 million. Currently, this portfolio account has a value of USD 50 million. The Mareva Defendants submit that once the funds were commingled, the amounts in the account were fungible, such that it is impossible to determine the composition of funds for any withdrawal, as between proprietary and non-proprietary funds. The Mareva Defendants submit that the proper approach is to apply to withdrawals the same ratio of non-proprietary to proprietary funds in the commingled account before any withdrawals. They submit that, using a ratio of 10/90 of non-proprietary to proprietary funds that were placed into the portfolio, there are USD 5 million of non-proprietary funds in that portfolio.

[48] The plaintiffs submit that the Mareva Defendants cannot show that any money that remained in the TFO account after transfers were made from that account is non-proprietary. The plaintiffs rely on evidence from Mohammed that there is no way to determine if the USD 10 million that is asserted to be non-proprietary funds was removed from the TFO portfolio in January 2018 when USD 44 million was transferred out of this account to New East International Limited.

[49] The plaintiffs are making a proprietary claim to millions of dollars that they allege were misappropriated by Dr. Aljabri from them. Although the evidence is that non-proprietary funds were commingled with proprietary funds, making money in the commingled fund fungible, I do not accept the submission of the Mareva Defendants that the proper approach to determining the composition of the fund after withdrawals is to apply a ratio of non-proprietary to proprietary funds to the withdrawals.

[50] In Marlowe et al. v. Barlas et al., 2025 NWTSC 3, the Court considered the moving defendant’s assertion that some of the money frozen by a Mareva order was from salary payments that were not subject to a proprietary claim and that some non-proprietary assets can be presumed to subsist in the frozen pool of funds. The Court applied a principle from trust law that a trustee who has commingled misappropriated trust funds with personal assets is deemed to have spent his own money first. The Court concluded that any non-proprietary funds had already been released or spent.

[51] In my view, the approach taken in Marlowe based on trust principles should be followed here. If I am incorrect in this respect, I would conclude that, given that the fund in question is commingled and includes proprietary and non-proprietary funds, and it is impossible to know which funds were withdrawn, the Mareva Defendants, who bear the onus of proof, have failed to show that there are frozen assets that are from a source other than the plaintiffs.

[52] As a result of this conclusion, I move to the fourth step of the Credit Valley analysis.

Balancing of competing interests

[53] The final step in the Credit Valley analysis requires the court to balance the competing interests of the plaintiff in not permitting the defendant to use the plaintiff’s money for his own purposes and of the defendant in ensuring that he has a proper opportunity to present his defence before assets in his name are removed from him without a trial. In weighing the interests of the parties, it is relevant for the court to consider the strength of the plaintiff’s case, as well as the extent to which the defendant has put forward an arguable case to rebut the plaintiff’s case. See Credit Valley, at para. 26(iv).

[54] In Marlowe, at para. 55, the Court set out several factors to be considered in the balancing exercise: (i) the merits of the proceeding; (ii) the impact of the defendant having to proceed without counsel; (iii) the stakes of the proceeding for the defendant; (iv) the impact on potential recovery of releasing the requested amount; and (v) the defendant’s behaviour, including: (a) adherence to the injunction; (b) conduct of the litigation; and (c) treatment of already released funds.

Merits of the action

[55] In Marlowe, at paras. 66-67, the Court held that the assessment of how likely the forthcoming process is to vindicate the defendant and, consequently, find that the restrained funds were theirs to use, is one important component in the balancing process and, where arguable merit exists, even if slight, the full spectrum of factors must be weighed together.

[56] In Caja Paraguaya, after a trial judgment, the unsuccessful defendants brought a motion to vary a Mareva order which was dismissed by the trial judge. The dismissal order was appealed and, on appeal, Nordheimer J.A., at para. 10, addressed the merits of the appeal. He observed that it is generally recognized that the test for the merits of an appeal on this form of motion establishes a very low bar. Nordheimer J.A. was satisfied that there were arguable grounds for the appeal.

[57] In the within action, when the plaintiffs obtained the Mareva Orders, they established a strong prima facie case against the Mareva Defendants.

[58] The Mareva Defendants’ main defence is that the impugned payments were authorized by Mohammed Bin Nayef (“MBN”) using authority delegated to him by the King of the Kingdom of Saudi Arabia.

[59] The Mareva Defendants rely on several documents in support of their defence.

[60] First, they point to a Royal Order issued by King Abdullah which creates funding for operations that Dr. Aljabri ran and designates MBN as the official directly responsible for managing the funding allocation and making disbursements from it to enhance counter-terrorism activities.

[61] Second, they point to a letter dated January 19, 2008 in which MBN agreed to pay Dr. Aljabri 5% of the profits generated by the plaintiff companies plus additional discretionary bonuses. They also rely on other documents which, they say, show that MBN authorized the impugned payments.

[62] The Mareva Defendants also rely on evidence which, they say, shows that the plaintiffs’ action is an abuse of process because it is motivated by a political persecution.

[63] I do not propose to undertake a detailed analysis of the merits of the plaintiffs’ claim or the defendants’ defences. This action is scheduled for a twelve-week trial in 2026. The Mareva Defendants have met the low bar of showing an arguable position in defence to the plaintiffs’ claim. This is not a case where it has been shown that the defences are clearly meritless and have been advanced simply to delay an inevitable judgment.

Impact of the defendants proceeding without counsel

[64] In the decision of the Court of Appeal for Ontario in Caja Paraguaya, at para. 11, Nordheimer J.A. addressed this factor and noted that “a party has the right to meaningfully participate in their appeal”. He concluded that in that case, meaningful participation cannot be achieved with the applicants unrepresented.

[65] This is a highly complex action. The plaintiffs are represented by very capable and experienced legal counsel. The proceedings involve many and complicated financial transactions in several jurisdictions. Issues of foreign law will need to be determined. Many documents will need to be put into evidence. The trial will involve many witnesses, including expert witnesses, and is scheduled to be heard in 2026 over 12 weeks.

[66] Given the nature and complexity of this action, I am satisfied that it would be very difficult, if not practically impossible, for the defendants to meaningfully participate in this trial without legal representation. The trial judge will undoubtedly benefit from having the defendants represented.

Stakes of the action for the defendants

[67] The plaintiffs claim very substantial amounts from the defendants. If the action is successful, there will be a very large judgment against the defendants which will likely wipe them out financially.

[68] The stakes of this action for the defendants are exceedingly high.

Impact on potential recovery of varying the Mareva Orders

[69] The amount of frozen funds sought to be released based on budgets provided is significant. This is not surprising based on the nature of the action and the time that counsel will need to spend for preparation and attendance at trial. The amount of the budgets represents about 2.5% of the total amount of frozen funds.

The Mareva Defendants’ conduct

[70] I have held that to the extent that some of the USD 37 million that was moved from certain accounts after the Saad Mareva order is still available, it is frozen and unavailable to be used to pay for the defendants’ legal expenses.

[71] The plaintiffs submit that the defendants dissipated this money in contravention of the Saad Mareva Order and that this conduct disentitles the Mareva Defendants from obtaining an order varying the Mareva Orders. The contempt motion by the plaintiffs for violation of the Saad Mareva Order was dismissed based on the conclusion that they had not proven a violation beyond a reasonable doubt. The plaintiffs then brought a rule 60.12 motion that resulted in a consent order. There has been no finding that the movement of this money or its use after the Saad Mareva Order was or was not in violation of this order. On the evidentiary record in relation to this issue, I am not satisfied that the actions taken in respect of the USD 37.5 million disentitle the defendants to variation of the Mareva orders.

[72] The plaintiffs submit that the defendants failure to account for the USD 37.5 million disentitles them to a variation of the Mareva Orders.

[73] The plaintiffs moved for an order that the defendants should be directed to answer questions regarding the source and use of funds transferred from accounts controlled by the defendants since the Saad Mareva order in the approximate amount of USD 37.5 million. In my endorsement released on December 2, 2024, the plaintiffs’ motion for an order that the Mareva Defendants answer these questions that would call on them to disclose information over which privilege is asserted was dismissed.

[74] I decline to draw an adverse inference against the Mareva Defendants for failure to provide information over which it claims privilege where the assertion of privilege was upheld on the plaintiffs’ motion. See Mittra v. Royal Bank of Canada et al., 2024 ONSC 636, paras 225-231. I do, however, consider this circumstance as part of the balancing exercise.

[75] Shortly before the hearing of this motion, counsel for Mohammed and the corporate defendants confirmed that his clients undertook to provide information and documents to the plaintiffs with respect to the USD 37.5 million:

(a) A list showing each transfer (above a threshold of U.S. $100,000) comprising the $37.5 million including, for each transfer, the amount, recipient and date;

(b) a bank statement for each of the transfers listed that shows the date, recipient, and amount of the outgoing payment;

(c) how much of these funds, on an aggregate basis, are currently being held by law firms; and

(d) confirmation on how the funds were used.

[76] This undertaking, when it is fulfilled, will provide an accounting of what happened to the $37.5 million. If after this accounting is provided, there is a question about whether the undertaking was fulfilled, the plaintiffs are entitled to come back to this Court to address any issues as part of the supervision process to be implemented as part of the variation order.

[77] The plaintiffs submit that the failure of the Mareva Defendants to move to vary the Mareva Orders to pay for living expenses, as required by the consent Order on the rule 60.12 motion, is a circumstance that should be taken into account in the balancing exercise and should disentitle the Mareva Defendants to the requested variation. The Moving Defendants explain that they could not bring such a motion where they do not meet the test under Credit Valley because they cannot show that they do not have access to non-frozen funds to pay for living expenses.

[78] The Mareva Defendants should not have consented to the requested order if they did not intend to comply with it.

[79] In my endorsement dated December 2, 2024, I ruled that the Mareva Defendants are required to answer questions about their assets and their ability to pay for legal fees, living expenses and costs awards, and that I would consider the Mareva defendants failure to move to vary the Mareva Orders for release funds for living expenses at the hearing of this motion. I conclude that the legal consequence of the Mareva Defendants’ failure to so move after agreeing to the consent Order is not that they are disentitled to a variation of the Mareva Orders. This would be too severe a remedy in the circumstances.

[80] When I consider these factors and circumstances, I am persuaded that a variation of the Mareva orders to release frozen funds is appropriate to provide for payment of legal expenses for the Mareva Defendants through to the completion of the trial. I am satisfied that without a variation providing for release of frozen funds to pay for legal expenses, there will not be a reliable source of funding that will allow the Mareva Defendants to retain legal counsel who would be willing to commit a substantial amount of professional time to the defence of this action over a compressed period of time. Although the amount needed for legal expenses will be significant, it is still a relatively small percentage of the frozen assets. The Mareva Defendants would be at an extreme disadvantage if they were required to represent themselves at this high-stakes trial. On balance, I accept that the Mareva Orders should be varied to permit release of frozen funds to pay for legal expenses of the Mareva Defendants, except Dreams, which I will address separately.

The amount and staging of funds to be released

[81] The Mareva Defendants provided a budget that provides for the amount of $8,646,132 (including disbursements and HST) to fund the defendants’ legal fees in defending this action, the proposed counterclaim, and the related Federal Court proceedings.

[82] They ask for an order providing for (i) the release of funds to meet this budget in stages and subject to a protocol that includes disclosure to the plaintiffs (respecting all privileges) and, to the extent necessary, supervision by the Court; (ii) the immediate release of $1,000,000 to each of the firms representing Dr. Aljabri and Mohammed Aljabri (and certain corporate defendants); and (iii) the release of funds to pay outstanding costs awards.

[83] The plaintiffs submit that any funds released must be subject to supervisory and reporting structures that are imposed when access to frozen funds is authorized.

[84] I will need to review the proposed budget before approving it. I accept that funds should be released now, and in stages going forward, subject to an agreed protocol.

Motion by Dreams International Advisory Services Limited (“Dreams”)

[85] In the joint notice of motion of the moving parties, Dreams seeks an order varying the Mareva Orders to release frozen funds to satisfy:

a. $600,000 to be paid to its legal counsel in trust for Dreams legal fees and disbursements to fund the litigation, and cover some of its past legal fees; and

b. An amount to satisfy the outstanding costs award for the British Virgin Islands proceedings between Sakab Saudi Holding Company and Dreams pursuant to the order of Justice Gerhard Wallbank dated March 20, 2024;

c. Costs awards made against Dreams in this litigation

[86] In the submissions of Dreams’ legal counsel at the hearing of this motion, he confirmed that Dreams seeks an order varying the Mareva Orders to:

a. Permit the release of $1.56 million (including disbursements and HST) to fund Dreams’ legal fees in defending this action, the release of which shall occur in stages and subject to a protocol that includes disclosure to the plaintiffs (respecting all privileges) and, to the extent necessary, supervision by the Court;

b. Permit the immediate release of $600,000 to legal counsel for Dreams.

[87] Dreams prepared a litigation budget and produced this budget in response to an undertaking given on the cross-examination of the law clerk who provided affidavit evidence in support of this motion.

[88] Dreams relies on and adopts the submissions made by counsel for the other moving parties.

[89] Dreams is professionally managed by its sole director HSBC PB Corporate Services which is based in Jersey.

[90] On this motion, no representative of Dreams provided affidavit evidence. The only evidence was from a law clerk employed by counsel for Dreams. In this affidavit, the law clerk deposes that Dreams is seeking an amount for future legal fees on a go forward basis and “[a]s stated in the Notice of Motion, this matter requires access to reliable funding and Dreams has no assurance that the payor of [its legal counsel’s] legal fees will continue to fund the litigation”.

[91] The law clerk was cross-examined on her affidavit. She was asked to provide the basis for her understanding that Dreams has no assurance that the payor of its counsel’s legal fees will continue to fund the litigation. This question was refused on the ground of privilege.

[92] Dreams has had funding from a third party to pay for its legal expenses in this action. Legal counsel for Dreams has received payments of invoices for legal services from this third party from the time counsel was retained (September 2023) to December 2024. The aggregate amount of these payments is significant.

[93] There is no evidence that such funding has been intermittent or precarious, or that there are any unpaid accounts. There is no evidence that there have been any delays or difficulties in the payment of invoices from counsel for Dreams. There is no evidence that calls into question whether the third party payor will continue to fund payment of legal expenses for Dreams through to the conclusion of trial.

[94] On this evidentiary record, I am not satisfied that Dreams has shown that it has no other assets available to pay its legal expenses than those frozen by the Mareva Orders. See Waxman, at para. 43. Dreams has failed to satisfy its onus at the first stage of the Credit Valley analysis.

Disposition

[95] For these reasons, the motion by the Mareva Defendants (with the exception of Dreams) to vary the Mareva Orders is granted to:

a. permit the release of frozen funds (in an aggregate amount not exceeding the all-inclusive amount in the budget provided by these defendants, to be approved) to fund these defendants’ legal fees and disbursements in defending the action, the proposed counterclaim if leave is granted, and the related Federal Court proceedings, with such release to occur in stages and be subject to a disclosure protocol to be approved by this Court; and

b. permit the release of frozen funds in the amount as is required to pay outstanding costs awards, with such amount to be reduced by the value of the four vehicles registered in the name of Khalid Aljabri (to be agreed upon or, if necessary, determined by me based on evidence to be provided).

[96] I ask counsel for Dr. Aljabri to provide me with a copy of the budget for which approval is sought.

[97] I authorize the immediate release of $1,000,000 to each of the law firm representing Dr. Aljabri and the law firm representing Mohammed and the corporate defendants.

[98] I ask counsel to confer on a protocol for a supervisory and reporting protocol to be incorporated in the formal order to be issued and to provide me with an approved form of order.

[99] The motion by Dreams is dismissed.

[100] If costs are not agreed upon, I may be spoken to.

Mark L. Cavanagh
Date: 2025-03-28

[^1]: 1147848 B.C. Ltd., 2701644 Ontario Inc., 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., New East International Limited, New East Family Foundation, and Dreams International Advisory Services Ltd.