Superior Court of Justice – Ontario

Court File No.: CV-21-00655418-00CL
Date: 2025-04-25

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: Cavanagh J.

Counsel:
Munaf Mohammed K.C., Jonathan G. Bell, and Ian W. Thompson for the plaintiffs
Sean Pierce and Robert Trenker for the defendants Saad Khalid S. Al Jabri, Mohammed Aljabri, 1147848 New East (US) Inc., 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.

Heard: 2025-04-03

Endorsement

(April 3, 2025)

Introduction

[1] One of the defendants, Saad Aljabri ("Dr. Aljabri"), brings this motion for leave to issue a commission and letters of request seeking the assistance of foreign courts to take the evidence of witnesses outside Ontario for use at the trial of this action. If leave is granted, Dr. Aljabri proposes that the evidence of the witnesses be taken by video-conference at the trial which is scheduled to begin in March 2026.

[2] For the following reasons, Dr. Aljabri's motion is granted.

Factual Background

[3] The plaintiffs are a group of companies owned by Tahakom Investment Company ("TIC") which is owned by the Public Investment Fund ("PIF") of the Kingdom of Saudi Arabia ("KSA").

[4] The plaintiffs plead that they are companies (described in the statement of claim as the "Group Companies") which were established to pursue commercial activities and be fronts for counterterrorism efforts in the KSA. They plead that at the time (and until September 10, 2015), Dr. Aljabri was an official with the Ministry of the Interior of the KSA charged with overseeing the plaintiffs. They plead that Dr. Aljabri, instead, orchestrated a massive fraud, misappropriating at least USD 5.36 billion from the plaintiffs for his personal gain and that of his co-conspirators, including the former Crown Prince of Saudi Arabia, Mohammed bin Nayef ("MBN"), Abdullah Alhammad ("Alhammad"), Majed Almuzaini and Salem Almuzaini. The plaintiffs plead that Dr. Aljabri used an elaborate network of close friends, associates and family members to implement, orchestrate, direct and carry out the fraudulent activities pleaded.

[5] The plaintiffs plead that following the creation of the Group Companies, Dr. Aljabri directed the installation of "nominee shareholders" into each of the newly created entities who were all his friends or family members. They plead that these nominees were chosen because they would do Dr. Aljabri's bidding so that he could exert true control over the Group Companies while maintaining an illusion of separateness. The plaintiffs plead that the installation of nominee shareholders was confirmed under side agreements for each of the Group Companies which were a means to paper a purported basis to transfer substantial funds from the Group Companies to Dr. Aljabri's family and friends.

[6] In his Amended Statement of Defence, Dr. Aljabri pleads that in June 2017, the current Crown Prince, Mohammed bin Salman ("MBS"), deposed MBN through a "palace coup". He pleads that MBN was thereafter placed under house arrest and, in the following months, MBS used corruption charges as a pretext for rounding up his political enemies including allies of MBN.

[7] In his Amended Statement of Defence, Dr. Aljabri pleads that MBS has relentlessly pursued him since the "coup" in an attempt to force his return to the KSA. Dr. Aljabri pleads that this action is an elaborate sham by which MBS seeks to harm and intimidate him because he is a perceived political enemy - the Special Advisor to his deposed rival.

[8] Dr. Aljabri pleads that before 2018, most of the plaintiffs were owned and controlled by MBN who established these companies using funds from a secret counter-terrorism fund (which Dr. Aljabri calls the "Allocation") under a secret royal instruction issued by the King of Saudi Arabia (the "Royal Instruction") which authorized MBN to create private sector vehicles to serve as commercial fronts for covert counter-terrorism operations.

[9] Dr. Aljabri pleads that MBN was solely responsible for administering the Allocation, and given the top-secret nature of the counterterrorism fund, he relied on a small circle trusted advisors to help implement the Royal Instruction, including Dr. Aljabri, Alhammad, and the nominee shareholders. He pleads that the nominee shareholders were, in fact, nominees, but they were selected by MBN who, at all times, exercised complete control over the plaintiffs. Dr. Aljabri pleads that MBN imposed a nominee structure for the legitimate and necessary purpose of distancing himself from the MOI and from the commercial "fronts" for the MOI's counterterrorism operations.

[10] Dr. Aljabri pleads that the King gave MBN broad discretion to determine how to use the Allocation and, in exercising this authority, MBN used the Allocation to (i) fund legitimate and highly classified counterterrorism operations through the plaintiffs, including important projects that Dr. Aljabri oversaw in partnership with Western allies; and (ii) compensate those involved in the plaintiffs by directing the Group Companies to make payments to himself, Dr. Aljabri, Alhammad and the nominee shareholders, among others.

[11] Dr. Aljabri pleads that the impugned payments in this action include significant compensation paid to him for successfully leading counterterrorism operations that made a valuable contribution to the international effort to combat terrorism, at great risk to his personal safety. He pleads that the impugned payments were lawful and entirely uncontroversial while MBN remained Crown Prince. He pleads that since the 2017 "coup", MBS has attempted to recast these payments as fraudulent to assist in his campaign to persecute Dr. Aljabri, including through this action.

[12] Dr. Aljabri pleads that MBS, aided by two key lieutenants, Yassir Al-Rumayyan ("Al-Rumayyan") and Mohammed Al Al-Sheikh ("Al-Sheikh"), caused the Group Companies to be expropriated by the PIF, then used his control of the PIF to (i) launch a forensic investigation of Dr. Aljabri, and, subsequently, (ii) cause the plaintiffs to commence this action. Dr. Aljabri pleads that this action is an improper abuse of the process of the Ontario court in an attempt to legitimize a campaign of political persecution by MBS.

[13] Dr. Aljabri pleads that a substantial portion (if not the full amount) claimed by the plaintiffs has already been seized from him and the alleged co-conspirators by the KSA. He pleads that shortly after MBS deposed MBN, the alleged co-conspirators, along with dozens of influential Saudi businessmen and politicians, were forcibly detained at the Ritz-Carlton Hotel in Riyadh, where they were forced to enter "settlements" through which the KSA seized USD billions in assets, including the amounts sought by the plaintiffs in this action.

Analysis

[14] Under Rule 34.07(1) of the Rules of Civil Procedure, where a person to be examined resides outside Ontario, the court may determine matters respecting the holding of the examination. Rule 34.07(2) provides that where the person is to be examined outside Ontario, the order under subrule (1) shall be in Form 34E and shall, if the moving party requests it, provide for the issuing of (a) a commission (Form 34C) authorizing the taking of evidence before a named commissioner; and (b) a letter of request (Form 34D) directed to the judicial authorities of the jurisdiction in which the person is to be found, requesting the issuing of such process as is necessary to compel the person to attend and be examined before the commissioner.

[15] In Moore v. Bertuzzi, 2014 ONSC 1318, the court heard a motion for leave to issue a commission and letter of request to the judicial authorities in the United States to compel the former CEO of certain defendants to give evidence as a witness at trial live or, alternatively, by videoconference. The court cited authorities concerning the test to be applied and, at para. 30, summarized the process to be followed by a court before issuing a commission and letter of request:

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.

[16] In Borrelli v. Chan, 2016 ONSC 4953, Penny J. held, at para. 24, that on a motion for the taking of commission evidence, the main consideration is a fair and full trial.

[17] Dr. Aljabri seeks an order under rule 34.07(1) in respect of fifteen proposed witnesses who fall into one of several categories.

Alleged Co-conspirators

[18] The first group of persons who Dr. Aljabri seeks to examine as witnesses at trial comprises persons who are alleged to have been co-conspirators with Dr. Aljabri in the fraud perpetrated against the plaintiffs and who are believed to be present in the KSA. These persons are MBN, Majed Almuzaini, Abdullah Alsowailem, Salem Al Muzaini, Abdullah Alhammad, and Fayad Alhadyan.

[19] Dr. Aljabri's evidence is that to his knowledge, these persons, except Fayad Alhadyan, are detained by Saudi authorities in the KSA but he does not know precisely where they are being held.

[20] With respect to these witnesses, Dr. Aljabri's evidence is that on June 20/21, 2017, Mohammed bin Salman ("MBS") seized power in Saudi Arabia in a "palace coup" and MBS forced MBN to step down so that MBS could assume the role of Crown Prince. Dr. Aljabri's evidence is that on November 4, 2017, MBS was named the Chair of a new "Supreme Anti-Corruption Committee" and, within days thereafter, dozens of influential Saudi businessmen were rounded up and detained at the Ritz-Carlton Hotel in Riyadh where they were confined and forced to sign settlements with MBS. According to Dr. Aljabri's evidence, these persons included the alleged co-conspirators (except MBN who, allegedly, had already been detained).

[21] With respect to MBN, Dr. Aljabri's evidence is that in 2006, the Saudi government established the "Allocation" to fund counter-terrorism operations and that the King delegated to MBN the responsibility for deploying this allocation. Dr. Aljabri's evidence is that this allocation was the original source of the money at issue in this action and that all payments at issue in this action were authorized by MBN. Dr. Aljabri's evidence is that the Saudi government seized approximately $3 billion from MBN's bank accounts which, he alleges, represents partial recovery of the amounts claimed by the plaintiffs in this action.

[22] With respect to Alhammad, the statement of claim alleges that Dr. Aljabri conspired with him, and with MBN and possibly others, to self-deal, steal and unlawfully and fraudulently direct billions of SAR (the Saudi currency) from the plaintiffs to himself and his co-conspirators and other defendants. Dr. Aljabri's evidence is that Alhammad was detained at the Ritz-Carlton hotel and forced to transfer money to the Saudi government. Dr. Aljabri wishes to obtain Alhammad's evidence with respect to his involvement in the facts at issue, including with respect to the reasons for this transfer of money.

[23] In the statement of claim, the plaintiffs allege that Dr. Aljabri created the plaintiff companies and directed the installation of "nominee shareholders", who were friends or family members of Dr. Aljabri, into each of these newly created entities. The plaintiffs allege that the nominee shareholders fraudulently received substantial funds from the plaintiffs to which they were not entitled and that Dr. Aljabri orchestrated the fraudulent transfers. Abdullah Alsowailem and Majed Almuzaini are alleged to be "nominee shareholders".

[24] Salem Al Muzaini is Majed Almuzaini's brother and Dr. Aljabri's nephew. He is alleged to have been involved in fraudulent misappropriation of the plaintiffs' money through a company called New Dawn. According to Dr. Aljabri's evidence, his evidence is anticipated to be that New Dawn had nothing to do with the plaintiff companies and that $100 million was seized from his bank account after he was detained at the Ritz Carlton hotel.

[25] Fahad Alhadyan is a person who is in Saudi Arabia who Dr. Aljabri pleads formerly held the role of Head of Security Expenditures of the Saudi Ministry of the Interior. In the statement of claim, the plaintiffs allege that he received approximately $98 million of allegedly stolen money. Dr. Aljabri seeks to examine him concerning the reasons for his receipt of this money and the involvement, if any, of Dr. Aljabri in such receipt. Dr. Aljabri submits that these issues are material to relevant issues arising from allegations made in the statement of claim.

[26] Dr. Aljabri submits that these witnesses are able to give material evidence relevant to his defences that this action is an abuse of process and was brought and is being prosecuted for the purpose of political persecution against him.

[27] With respect to these alleged co-conspirators, the plaintiffs do not contend that the anticipated evidence of these persons is not material to relevant issues in this action. They submit that Dr. Aljabri has not shown that his request is bona fide when he has no knowledge of where to find certain of the proposed witnesses and has not shown that he has taken steps to locate them. The plaintiffs submit that Dr. Aljabri has not provided a plan for how he intends to enforce the requested order if letters of request are issued. The plaintiffs submit that they are concerned that the defendants will ultimately seek to rely on their failure to enforce any orders for commissioned evidence to adjourn or delay the trial.

[28] The plaintiffs point to Dr. Aljabri's amended statement of defence in which he pleads that the plaintiffs' claims are non-justiciable because the only witnesses who can fully explain the impugned transactions are unavailable "because they have been disappeared in Saudi Arabia at the direction of the now-Crown Prince bin Salman". Dr. Aljabri pleads that "without access to witnesses and documents ... Dr. Saad is not able to defend himself against the alleged discrepancy between amounts he purportedly received and the reported profits of the Sakab companies". Dr. Aljabri pleads that "the unavailability of evidence due to ... the unavailability of key witnesses (who have been disappeared) make it impossible for a court to fairly adjudicate this dispute".

[29] The plaintiffs submit that a fair inference may be drawn that Dr. Aljabri's true litigation strategy is to ensure that the witnesses who have been allegedly "disappeared" do not testify so that he can seek a dismissal of the action for this reason. They submit that Dr. Aljabri, by bringing this motion, truly seeks an outcome where these witnesses, and other witnesses such as high-ranking security officials in the United States, do not give evidence, and he would then use their failure to give evidence to seek to delay or to stay the action against him. The plaintiffs submit that Dr. Aljabri has not shown a proper basis for me to find that this motion is brought in good faith for a bona fide reason.

[30] In support of this submission, the plaintiffs refer to a motion made by Dr. Aljabri for an order for the taking of commission evidence in relation to his prior motion to set aside the Mareva Order against him, where an order was made on an unopposed basis by another judge of this Court authorizing the issuance of letters of request for certain witnesses. No steps were taken to enforce this order. The plaintiffs submit that Dr. Aljabri's motion should be viewed with skepticism given his failure to enforce the previous letters of request granted by this court. Dr. Aljabri responds that there was not sufficient time for him to enforce the letter of request in time for the motion that was scheduled. I do not treat this failure as a basis to find that Dr. Aljabri is not acting in good faith on this motion.

[31] I do not accept that the record supports an inference that this motion is not brought in good faith for a bona fide reason. Dr. Aljabri's explanation for his inability to communicate with the alleged co-conspirators, that they are under the control of the Saudi authorities, is sufficient to explain why these proposed witnesses cannot attend personally at trial. The evidence shows that anticipated evidence of the alleged co-conspirators is material to relevant issues raised by the pleadings. The fact that Dr. Aljabri pleads that he will be unable to defend the plaintiffs' action without the evidence he seeks raises a different issue that is not before me on this motion. Dr. Aljabri's pleading in this respect does not justify an inference that he is not making a bona fide request for the evidence he seeks. The absence of evidence of a plan for how Dr. Aljabri intends to seek recognition and enforcement of the requested order does not lead to a proper inference that this motion is not brought in good faith.

[32] I conclude that the request made by Dr. Aljabri in respect of these proposed witnesses is bona fide. My conclusion in this respect also applies to Dr. Aljabri's motion in relation to other anticipated witnesses.

[33] In finding that the anticipated evidence of these witnesses is material to relevant issues in the action, I do not make any finding, one way or the other, about whether these witnesses, or any other anticipated witnesses, are or are not necessary witnesses in order for there to be a fair trial.

[34] I am satisfied that the requested order should be made in relation to these six proposed witnesses.

Former HSBC Employee

[35] Sobhi Tabbara was formerly a senior manager at HSBC in Switzerland. Mr. Tabbara is a resident of Switzerland. He is not implicated in the alleged fraud. Dr. Aljabri's evidence is that Mr. Tabbara has not responded to any of his correspondence inquiring whether he is prepared to attend trial in Toronto voluntarily.

[36] Dr. Aljabri's evidence is that Mr. Tabbara participated directly in meetings regarding the investment of the Allocation funds and would be able to testify that MBN, and not him, was at all times directing the financial matters with respect to the allocation.

[37] The plaintiffs submit that Dr. Aljabri's request for an order on this motion in respect of Mr. Tabbara is not bona fide.

[38] In support of their submission that Dr. Aljabri's motion in relation to Mr. Tabbara is not bona fide, the plaintiffs also submit that Dr. Aljabri has not shown that he has a proper plan to enforce any order issued in relation to obtaining evidence from Mr. Tabbara. They note that in Switzerland there are highly technical procedures to be followed under the applicable guidelines and that the proposed letter of request will be insufficient to be recognized and enforced in Switzerland.

[39] I do not accept the plaintiffs' submission that Dr. Aljabri's request is not bona fide. Dr. Aljabri has defended the action, in part, based on his assertion that MBN directed the payments at issue in this action. Dr. Aljabri has shown that Mr. Tabbara's anticipated evidence is material to an issue in this action and not a collateral matter.

[40] I am satisfied that the requested order should be made in relation to Mr. Tabbara.

Saudi Nationals with Ties to the PIF and/or MBS

[41] On this motion, Dr. Aljabri seeks an order with respect to three Saudi nationals who, he contends, were directly involved in MBS's efforts to persecute him.

[42] Mohammed Al Al-Sheikh ("Al-Sheikh") is a State Minister of the government of the KSA. Yasir Al-Rumayyan ("Al-Rumayyan") is the Managing Director/Governor of the PIF and a KSA Minister. Rasheed Shareef ("Shareef") is the former Chairman of TIC.

[43] The plaintiffs obtained a report from Deloitte dated October 31, 2018 to support their claims of fraudulent misappropriation by Dr. Aljabri. Shareef was the person at the PIF to whom the Deloitte Report was addressed. Dr. Aljabri submits that Shareef can explain who was involved in the Deloitte investigation from the PIF side, what instructions were given, and why Deloitte was engaged in November 2017.

[44] Dr. Aljabri submits that Al-Rumayyan, the Governor of the PIF, can reasonably be expected to be able to give material evidence concerning the engagement of Deloitte by the PIF including the reason for this engagement and the timing of the investigation in November 2017.

[45] Dr. Aljabri asserts that Mr. Al Al-Sheikh was directly involved in the transfer of ownership of the plaintiffs to the PIF in late 2017/early 2018 at the direction of MBS. He alleges that this was done as part of the scheme to persecute him. He alleges that MBS used his control of the PIF and indirect control of the plaintiffs to cause the plaintiffs to commence this action as a part of this scheme.

[46] Dr. Aljabri alleges that the "expropriation" of the plaintiffs put them under the control of MBS who, he alleges, controls the PIF. Dr. Aljabri alleges that through this control, MBS caused the plaintiffs to commence this action for the improper purpose of political persecution of Dr. Aljabri.

[47] Dr. Aljabri submits that Al-Sheikh, Al-Rumayyan, and Sharif are anticipated to be able to give material evidence on the issues relating to the alleged "expropriation" of the plaintiffs by the PIF which, he maintains, was a critical part of the political persecution directed against him by MBS.

[48] The plaintiffs submit that none of these persons would have material evidence to give in relation to a relevant issue at trial, and that the request in relation to these persons is simply a fishing expedition which, if these persons were to give evidence at trial, would result in the admission of irrelevant evidence.

[49] The plaintiffs refer to the affidavit of Dr. Aljabri filed for this motion in which he states that he wishes to have his lawyers examine Al-Sheikh, Al-Rumayyan, and Sharif about (a) the PIF retaining Ernst & Young and then later Deloitte to conduct the forensic investigation, including to understand what instructions were given to the expert accountants, what discussions were had with them, who participated, why the investigation was commenced, and who directed it; (b) any recovery of funds from alleged co-conspirators via the 2017 Ritz-Carlton "purge"; (c) the PIF paying money to government employees, independent of their government salary, for work done for PIF-owned companies; and (d) if the counterclaim is permitted, issues raised in the counterclaim.

[50] The plaintiffs submit that issues relating to the retainer of E&Y and Deloitte are, at most, collateral issues that are not material to matters in issue in the action and that Dr. Aljabri is engaged in a fishing expedition.

[51] The plaintiffs submit that there is no evidence in the record before me to show that any of these three persons had anything to do with the alleged detention of persons at the Ritz-Carlton hotel. They submit that there is no evidence that the plaintiffs received any money as a result of this event, and even if alleged co-conspirators were required to return money to the government of Saudi Arabia, this would have no effect on the claims of the plaintiffs in this action, where the plaintiffs are the only legal entities with status to bring this action and they are separate entities from the Saudi government.

[52] The plaintiffs submit that the question of whether the PIF paid money to government employees, independent of their government salary, for work done for PIF-owned companies, is not a relevant issue in this action, particularly where the plaintiffs were not owned by the PIF when the alleged fraud is said to have taken place.

[53] The plaintiffs submit that whether MBS engaged in political persecution of Dr. Aljabri, an allegation made by Dr. Aljabri in his defence of this action, is not a relevant issue in this action. The plaintiffs submit that even if this action was commenced to politically persecute Dr. Aljabri, the plaintiffs, and only the plaintiffs, have the legal right to advance a claim for damages caused to them by Dr. Aljabri and his co-conspirators. The plaintiffs submit that Dr. Aljabri's pleaded allegation that this action is an abuse of process because MBS directed that it be commenced as part of a campaign of political persecution against Dr. Aljabri does not raise a tenable defence and, therefore, evidence in relation to this allegation is not material evidence in respect of a relevant issue.

[54] In support of this submission, the plaintiffs rely, in part, on the decision of Gilmore J. dated March 11, 2021 dismissing Dr. Aljabri's motion to set aside the Mareva order against him. In this decision, Gilmore J., at paras. 117-124, addressed Dr. Aljabri's submission that the plaintiffs failed to disclose that MBS controls the litigation against him, and that evidence of his involvement with this litigation was critical evidence that should have been placed before the court in the course of the ex parte motion for the Mareva order. Gilmore J. rejected this submission and, citing the decision in Petrochemical Commercial Company International Ltd. v. Nexus Management Group SDN BHD, 2019 ONSC 1142, held that whether the plaintiffs are controlled by MBS does not affect their right under civil law to pursue their claims against Dr. Aljabri. Gilmore J. held that Dr. Aljabri had not proven any non-disclosure that is sufficiently material to displace the Mareva order as it relates to him.

[55] On this motion, under the test in Moore, I am required to consider whether Dr. Aljabri has shown through proper evidence what he believes the evidence will be of the proposed witnesses such that the proposed examinations are not simply a fishing expedition. The anticipated evidence must be material to an issue in the action as opposed to a collateral matter.

[56] The issues in the action are determined by the pleadings.

[57] Dr. Aljabri has alleged in his defence to this action that in December 2017 MBS issued an urgent direction requiring ownership of the plaintiffs to be transferred to the PIF. He pleads that this direction was carried out and the effect was that the plaintiffs were expropriated by MBS and placed under his control through the PIF. Dr. Aljabri has pleaded as a central allegation in his defence that MBS is using the plaintiffs to extend his campaign of political persecution of Dr. Aljabri through this action. He alleges as a defence to this action that it is illegitimate and an abuse of the process of the court. Based on the pleadings, the question of whether MBS is engaged in a campaign of political persecution of Dr. Aljabri and is using this action to further this campaign, such that it is an abuse of process, is an issue in the action.

[58] This motion is not a trial of the action or a motion for summary judgment. On this motion, I am not required to decide whether, if the facts alleged by Dr. Aljabri in his statement of defence are proven, he can successfully defend the claims made against him. The decision of Gilmore J. is not one that precludes Dr. Aljabri from defending the action based on alleged abuse of process. At the trial, the trial judge will decide questions of admissibility of evidence, make factual findings, and decide legal questions. On this motion, I make no determination, one way or the other, as to whether Dr. Aljabri can successfully defend the plaintiffs' action if he is able to prove the facts alleged in his pleading concerning MBS's involvement in this action.

[59] In addition to the matters raised in Dr. Aljabri's affidavit, Dr. Aljabri relies on his affidavit evidence as a basis to seek the evidence of Al-Shiekh, Al-Rumayyan, and Sharif on the issue of the circumstances surrounding the transfer of ownership of the plaintiffs to the PIF.

[60] Dr. Aljabri has provided evidence stating that Al-Sheikh was directly involved in the events in relation to the transfer of ownership of the plaintiffs to the PIF in late 2017 and early 2018. He has provided evidence that a letter was sent by Al-Sheikh dated December 24, 2017 to the Supervisor of the PIF. His evidence is that Al-Rumayyan was the managing director of the PIF at the time. This letter refers to the instructions of the Crown Prince to transfer of ownership of a number of companies to the PIF. Dr. Aljabri refers to evidence tendered on this motion of a direction from the PIF dated December 26, 2017 to Sharif to "do what's necessary as fast as possible to transfer ownership of the companies as explained in the letter of [Al Sheikh]".

[61] These documents appear to show that Al-Sheikh, Al-Rumayyan, and Sharif had engaged in correspondence concerning a direction by MBS to transfer ownership of the plaintiffs to the PIF. These documents suggest that these three persons were involved in the transfer of ownership of the plaintiffs to the PIF. This transfer, which Dr. Aljabri alleges was a central element of the campaign of political persecution against him, is a relevant issue in the action.

[62] I am satisfied that Dr. Aljabri has provided evidence of his belief, and the grounds for his belief, that these three persons have knowledge of information concerning this issue. Given this knowledge, their anticipated evidence would be material to a central issue raised through Dr. Aljabri's defence to the claims made in the action.

[63] I am satisfied that the requested order should be made in relation to these three proposed witnesses.

Head of MBS's Private Office

[64] Dr. Aljabri's evidence in his January 20, 2025 affidavit is that Bader Alasaker ("Alasaker") is the head of MBS's private office. Dr. Aljabri deposes to his belief that Alasaker gave instructions on MBS's behalf to have Dr. Aljabri killed or taken to Saudi Arabia by extra-judicial means, or that he is aware of those instructions being given. In an earlier affidavit, Dr. Aljabri deposes to his belief that agents of MBS had been dispatched to Canada to assassinate him on or around October 15, 2018 and that some of those individuals had been turned away at the Ottawa International Airport by Canada Border Services Agency officers. He deposes to his belief that Alasaker would therefore have evidence relevant to his allegation that MBS is persecuting him.

[65] In his Amended Statement of Defence, Dr. Aljabri alleges that as part of MBS's campaign of political persecution against him, MBS dispatched a squad to Canada to assassinate him. This pleading makes this allegation a relevant factual issue in the action.

[66] When I apply the test in Moore, there is a sufficient evidentiary basis to satisfy me that Alasaker may be expected to give evidence in respect of his knowledge of these matters that would be material to an issue in the action, such that the proposed examination is not a fishing expedition.

[67] I am satisfied that the requested order should be made in relation to Alasaker.

American Counterterrorism Officials

[68] Dr. Aljabri seeks to obtain the evidence of four high ranking members of the U.S. Central Intelligence Agency, the Department of Homeland Security, and the FBI. He submits that these officials can speak to: (i) the significance of the operations Dr. Aljabri oversaw to the international effort to combat terrorism (tendered to explain why Dr. Aljabri was paid the amounts in issue); and (ii) the reason that financing of counterterrorism operations was necessarily obfuscated, which, he deposes, responds to the plaintiffs' assertion that such obfuscatory actions are evidence of fraudulent intent by Dr. Aljabri.

[69] These persons reside in the United States. Dr. Aljabri states that the CIA and Department of Homeland Security have yet to respond to his request to examine these witnesses, however, the FBI has advised that its former agents are precluded from providing testimony absent a subpoena, order or demand of a court.

[70] Dr. Aljabri deposes that he met regularly with one of the proposed witnesses to discuss and report on operations being carried out with funds from the Allocation. With respect to another proposed witness, Dr. Aljabri deposes that he is a former CIA operative who can speak to the events that led to the creation of the Allocation in 2007. He deposes that a third proposed witness is a former CIA and FBI official who engaged directly in financial transactions with Dr. Aljabri while he was running counter-terrorism operations in the KSA, using funds from the allocation. He deposes that the fourth proposed witness is a former U.S. national security official who worked directly with him on projects funded by the Allocation and who can attest to the need to keep the sources of funding and government involvement secret.

[71] In his Amended Statement of Defence, Dr. Aljabri alleges that the payments he received were compensation for his involvement in security-related aspects of the activities of the plaintiffs including sensitive and top secret counter-terrorism projects. He alleges that some of the payments he received were rewards for particularly important and successful sensitive security operations conducted in partnership with Western Governments.

[72] Dr. Aljabri submits that in addition to discrediting to the plaintiffs' allegations that there are badges of fraud shown by financial transactions involving Dr. Aljabri, these four witnesses are able to give evidence that explains his role in counter-terrorism operations and why he was compensated as he was. As such, he submits, the evidence from these witnesses is material to relevant issues at the trial.

[73] The plaintiffs submit that evidence from these witnesses would be merely corroborative of evidence from Dr. Aljabri and, for this reason, his motion in respect of these proposed witnesses should be dismissed. The plaintiffs rely on the statement in Moore, at para. 30, in support of this submission.

[74] One of the cases cited in Moore to support this statement is Simpson v. Vanderheiden; Phoenix Assurance Co., Third Party Simpson v. Phoenix Assurance Co. of Canada. In Simpson, the motion judge, after stating that the principle that the evidence sought must be material to the issue, and not merely corroborative, made an order for the taking of commission evidence by two witnesses who were eyewitnesses to an accident, where an issue in the action was whether the defendant purposefully opened a car door causing the accident. The defendant had denied that he did so. The motion judge held that there was a permissible inference that the evidence of the plaintiff and the defendant will raise a question of credibility and, in this circumstance, the materiality of the testimony sought is plain, and, he held, an eyewitness is a vital witness. This is an example of a case where an order for the taking of commission evidence was made even where the evidence of the proposed witness would be corroborative of the evidence of the defendant.

[75] There is no question that Dr. Aljabri's credibility will be an issue at the trial of this action. Although he is able to testify about his own role in counter-terrorism activities, how this affected his compensation, and the need for secrecy in respect of payments from the Allocation, I do not regard the proposed evidence from the four U.S. security officials to be redundant and repetitive, such that it should not be compelled, because it is merely corroborative. In the circumstances of this case, I am satisfied that the interest of ensuring a fair trial justifies the requested order in respect of these witnesses because their testimony, as non-interested third parties, may assist the court in making findings in respect of these contentious issues.

[76] I am satisfied that the requested order should be made in relation to these four proposed witnesses.

Conclusion

[77] When I consider the test articulated in Moore, having particular regard to the main consideration, being a fair and full trial, I am satisfied that the requested order in relation to the fifteen proposed witnesses should be granted.

Disposition

[78] For these reasons, I grant Dr. Aljabri's motion for an order for the issuing of a commission and letters of request seeking the assistance of foreign courts to take the evidence of the proposed fifteen witnesses who reside outside Ontario for use at the trial of this action.

[79] I ask counsel to provide me with an approved form of order to be issued.

[80] If costs cannot be resolved, I may be spoken to.

Cavanagh J.
Date: 2025-04-25