SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 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 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 Mohamed K.C., Jonathan G. Bell, and Douglas A. Fenton for the plaintiffs
Jeff Larry, Hailey Bruckner, 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 J. Adair and Sean Pierce for Saad Aljabri
Andrew Matheson for Dreams International Advisory Services Ltd.
Ryan A. Morris for 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 Nominee Shareholder of Black Stallion Investments Limited and Black Stallion Investment Limited
HEARD: In Writing
COSTS ENDORSEMENT
1This is my endorsement with respect to costs of several motions in this action.
2Rule 57.01 of the Rules of Civil Procedure provides that in exercising its discretion to award costs, the court may consider, in addition to the result in the proceeding and any offer to settle or to contribute made in writing, the factors listed in that rule.
3In Boucher v. Public Accountants Council for the Province of Ontario, 2004 14579 (ON CA), at paras. 24-26, the Court of Appeal held that the fixing of costs is not a mechanical exercise and does not begin and end with a calculation of hours times rates. The Court of Appeal held that, overall, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.
4The Court retains a broad discretion to make an award of costs that is just and appropriate having regard to the circumstances.
5The parties made written submissions with respect to costs of these motions. Saad Aljabri made written submissions and Mohammed Aljabri and the corporate defendants also represented by his counsel (the "Corporate Defendants") rely on the submissions made by Saad Aljabri in respect of several of the motions. I refer to Saad Aljabri, Mohammed Aljabri and the Corporate Defendnats, together, as the "Aljabri Defendants".
1. Trust Ledger Motion
6The Plaintiffs brought a motion for an order requiring Saad Aljabri and Mohammed Aljabri to produce trust ledgers from law firms in respect of funds received from June 2017. In a decision released on March 18, 2024, this motion was dismissed.
7The Divisional Court released a decision on January 10, 2025 dismissing an appeal of this decision, with the exception of the decision in respect of redacted bank statements. This issue was remitted back to me as the motion judge to be decided in accordance with the principles set out in the decision of the Divisional Court.
8The Aljabri Defendants seek costs on a partial indemnity scale of the Trust Ledger Motion from the Plaintiffs in the amount of $40,000.
9The Plaintiffs submit that the parties should bear their own costs of the Trust Ledger Motion. They submit that after the ruling against them on the Trust Ledger Motion, they were successful in obtaining the core relief they had sought through an undertaking given by Mohammed and the Corporate Defendants on their motion to vary the Mareva Order. The Plaintiffs also submit that Mohammed and the Corporate Defendants acted improperly by resiling from an agreement on terms that would result in Mohammed producing the bank statements, resulting in additional legal work by counsel for Plaintiffs, before Mohammed and the Corporate Defendants ultimately accepted the originally agreed upon terms. The Plaintiffs submit that, in any event, the amount of costs claimed is excessive.
10The Aljabri Defendants were the successful parties on the Trust Ledger Motion and are presumptively entitled to an award of costs.
11I do not agree that the fact that the Plaintiffs later obtained production of documents through an undertaking given by Mohammed and the Corporate Defendants in respect of the Motion to Vary should affect the disposition of costs of the Trust Ledger Motion.
12With respect to the amount of costs, I have considered the factors in rule 57.01 of the Rules of Civil Procedure. The motion was an important one for the parties. The issue raised legal issues of some complexity, as shown by the fact that a full hearing day was required. Although the Aljabri Defendants' claim for costs is for an amount that is higher than the partial indemnity costs of the Plaintiffs, the amount claimed falls within a range of costs that the Plaintiffs would reasonably expect to pay if they were unsuccessful on this motion.
13I fix costs of the Trust Ledger Motion to be paid by the Plaintiffs to the Aljabri Defendants in the amount of $40,000.
2. Bank Statements Motion
14The re-hearing of the Plaintiffs' motion for production of bank statements was scheduled to be held on March 31, 2025. The disposition of this re-hearing was resolved on consent in accordance with the terms of a consent order made that day. The Plaintiffs reserved the right to seek costs of the motion.
15The Plaintiffs claim costs of $15,000 on a partial indemnity scale. The Plaintiffs submit that costs should be awarded because Mohammed and the Corporate Defendants resiled from an agreement to produce the bank records, before ultimately agreeing to the original terms, requiring the Plaintiffs to urgently prepare a factum addressing the privilege issues.
16Mohammed and the Corporate Defendants submit that the parties should bear their own costs on the rehearing of this motion. In support of this submission, they cite Muskala v. Sitarski, 2017 ONSC 2842. In Muskala, the parties settled a motion "except for costs". Justice Myers held that, in his view, costs generally should not be awarded when parties settle except for costs. Justice Myers explained his reasons for this view and, at para. 10, concluded by expressing that "where the parties are not prepared to incur the time, cost, or risk to argue the motion on the merits just because they have not settled costs, then their efforts to upload the disembodied decision on to the court is equally not a proportional or efficient use of court time".
17I accept the reasoning in Muskala that in many cases, parties should bear their own costs when they settle a motion or proceeding except for costs. This reasoning does not, however, apply in all cases.
18The Plaintiffs brought a motion for production of bank statements and they were successful in obtaining such an order. Although this motion was ultimately resolved on consent before the need for a rehearing, the Plaintiffs expressly reserved the right to seek costs. They reasonably incurred costs in connection with this motion. These costs would not have been necessary if Mohammed and the Corporate Defendants had provided their consent before these costs were incurred.
19In these circumstances, I decline to follow the approach taken by Myers J. in Muskala. The Plaintiffs should be awarded costs of the Bank Statements Motion on a partial indemnity scale in the amount of $15,000. The amount claimed is fair and reasonable.
20I fix costs of the Bank Statements Motion to be paid by Mohammed and the Corporate Defendants to the Plaintiffs on a partial indemnity scale in the amount of $15,000.
3. Proffer Motion
21The Plaintiffs moved for an order directing Saad Aljabri to produce a document (the "Proffer") provided by him to the Attorney General of Canada pursuant to s. 38 of the Canada Evidence Act. The issue on this motion was whether the Proffer was subject to litigation privilege that was not waived.
22The Plaintiffs' motion was dismissed.
23Saad Aljabri seeks costs of this motion on a partial indemnity scale in the amount of $25,000.
24Saad Aljabri, as the successful party, is presumptively entitled to an award of costs. The amount claimed on a partial indemnity scale is fair and reasonable.
25I fix costs of the Proffer Motion on a partial indemnity scale to be paid by the Plaintiffs to Saad Aljabri in the amount of $25,000.
4. Privilege Motion
26The Plaintiffs moved for an order directing the Aljabri Defendants to produce certain documents over which privilege had been claimed and to answer questions asked on the examinations for discovery that had been refused on the ground of privilege. The Plaintiffs also moved for production of unredacted documents from Dreams.
27With respect to the documents of which production was sought, the Plaintiffs submitted that the Aljabri Defendants had failed to provide a proper evidentiary foundation to support their claim of privilege. The Aljabri Defendants relied on the documents themselves as evidence that show the role played by third parties and demonstrates that privilege was properly maintained. The Aljabri Defendants submitted that it was impractical for them to adduce affidavit evidence in relation to each of the 4,000 documents in question. The Court directed the Aljabri Defendants to proceed with a further review of the documents in question (they had offered to do so). The Court directed that, after this review, if there are still assertions of privilege with which the Plaintiffs disagree, they may seek further directions which may require review by the Court of documents over which privilege is claimed.
28The Defendants voluntarily produced many documents following these directions. The parties agreed to the appointment of privilege review counsel to review the disputed documents over which privilege was claimed. Many additional documents were directed to be produced through this process.
29With respect to the refusals on the examinations for discovery, the Plaintiffs, in their factum, identified three categories of questions that, they submitted, were improperly refused.
30At the hearing of this motion, the Plaintiffs sought directions from the Court with respect to six questions that, they submitted, would resolve the bulk of the refusals given during the examinations for discovery. The Aljabri Defendants did not accept that directions with respect to the six questions would be sufficient to address the issues on the motion.
31The Court gave directions with respect to the three categories of questions identified in the Plaintiffs' factum. In respect of one category (how the defendants paid for living expenses and disclosure of communications among the defendants in relation to funding of living expenses), the Court ruled that the defendants are not required to answer the questions. With respect to the other two categories ((i) documents filed by Saad Aljabri with government authorities for immigration or tax purposes, and (ii) questions related to non-legal services provided by professional advisors), the Court gave directions and noted that if the Plaintiffs do not accept the assertion of privilege after further review by the Defendants, having regard to the directions given, it may be necessary for the Court to review the documents over which privilege was claimed to determine the validity of the assertion of privilege.
32The Plaintiffs seek costs of this motion on a partial indemnity scale in the amount of $45,000. They submit that they were overwhelmingly successful on the Privilege Motion, because, but for this motion, the Aljabri Defendants would have unjustifiably claimed privilege over more than 3,600 relevant documents.
33The Aljabri Defendants submit that there should be no award of costs in respect of the privilege motion. They submit that success was divided on this motion where, for example, the question of how living expenses were being funded and questions concerning communications among the defendants were not required to be answered. The Aljabri Defendants submit that the approach taken by the Plaintiffs at the hearing of the Privilege Motion was unfair because the Plaintiffs advised only in oral submissions that they were seeking directions concerning six questions. The Aljabri Defendants submit that the Plaintiffs failed to give fair notice of their position to them and, as a result, their counsel had to expend unnecessary time to prepare to respond to positions taken by the Plaintiffs which were not advanced at the hearing.
34The Plaintiffs brought the privilege motion to compel production of thousands of relevant documents and answers to many discovery questions that called for production of documents because the Aljabri Defendants had withheld production of such documents and refused to answer questions based on assertions of privilege. I do not fault the Plaintiffs for seeking directions with respect to categories of questions. It was not practical for the Court to address each contentious document or each refusal individually. As a result of the directions given, and the appointment of privilege review counsel that followed, thousands of relevant documents over which the Defendants had asserted privilege were produced.
35The Plaintiffs were substantially successful on their motion to compel production of documents over which privilege had been asserted. They were not successful on all issues on this motion. I reduce the Plaintiffs' claimed fees of $45,000 to $40,000 to account for these issues. The amount of $40,000 is fair and reasonable.
36I fix costs of the Privilege Motion on a partial indemnity scale to be paid by the Aljabri Defendants to the Plaintiffs in the amount of $40,000.
5. Investment Monitor Motion
37The Plaintiffs brought a motion for the appointment of an Investment Monitor to address their position that Mohammed Aljabri and the Corporate Defendants and the Black Stallion Entities (trustees and managers of the Black Stallion Trust which holds substantial frozen funds) had failed to appropriately invest frozen assets.
38At the hearing of the motion, the responding parties, Mohammed Aljabri and the Corporate Defendants, consented to the appointment of an Investment Monitor, and the Black Stallion Entities did not oppose an order appointing an investment monitor. The responding parties opposed the form of order sought by the Plaintiffs as being impermissibly broad. The only disputed issue at the hearing of the motion was the appropriate scope of the Investment Monitor's mandate and powers.
39In a decision released following argument of this motion, the Court did not accept several parts of the order requested by the Plaintiffs, and held that the Investment Monitor may seek further directions if necessary. The Court attached to its endorsement the form of order that it was prepared to have issued. The form of order was substantially in the form proposed by the responding parties.
40The Plaintiffs submit that they were forced to bring a motion to appoint an investment monitor after belated production of financial information by Mohammed Aljabri and the Corporate Defendants. They submit that they were prejudiced by the mismanagement of frozen assets which has reduced the value of assets over which a proprietary claim is made and which will reduce the amount available to satisfy a judgment if they are successful at trial. The Plaintiffs note that Mohammed Aljabri and the Corporate Defendants initially opposed the appointment of an investment monitor and only consented after the Plaintiffs had filed comprehensive material. The Plaintiffs rely on their submission that the Investment Monitor was required to move to amend the appointment order to correspond with the scope of the mandate initially proposed.
41The Plaintiffs seek costs of the Investment Monitor motion on a partial indemnity scale in the amount of $35,000.
42Mohammed Aljabri and the Corporate Defendants submit that they were successful on the contested issue before the Court, that is, the scope of the order to be issued. They submit that by consenting to the motion, they shortened the duration of the motion. Mohammed and the Corporate Defendants seek costs of the Investment Monitor Motion on a partial indemnity scale in the amount of $40,105.59.
43Certain of the Defendants (the "Black Stallion Entities") seek an order of costs of the Plaintiff's motion to appoint an investment monitor on a partial indemnity scale in the amount of $30,000. The Black Stallion Entities did not oppose the appointment of an investment monitor. They submit that the only issue for the hearing of the motion was the scope of the powers of the investment monitor. The Black Stallion Entities submit that they should be awarded costs of this motion because (i) they were successful on the issues argued before the Court (the order granted was substantially the same as the order proposed by the Black Stallion Entities); (ii) the appointment of an investment monitor was not a successful outcome for the Plaintiffs in respect of the Black Stallion Entities because, they contend, the Plaintiffs did not meet the test at law for such an appointment in respect of these entities; (iii) the subsequent variation of the order having regard to conduct of other defendants (and without notice to them) does not affect the Black Stallion Entities' claim for costs; and (iv) they were required to incur significant costs because the Plaintiffs chose to examine a representative of the Black Stallion Entities accompanied by broad document requests which did not yield evidence that influenced the outcome of the motion.
44The Plaintiffs responded separately to the submissions made by the Black Stallion Entities. The Plaintiffs seek costs against the Black Stallion Entities. They submit that the motion for an order appointing an investment monitor was necessary because the Black Stallion Entities had failed to reasonably invest frozen assets while continuing to charge significant fees. They submit that the Rule 39.03 examination of the representative of the Black Stallion Entities did not produce evidence that influenced the outcome of the motion because the representative refused to answer proper questions about investments of frozen assets.
45The Black Stallion Entities did not oppose the Plaintiffs' motion for an order appointing an investment monitor for the purpose of reporting to the Court on how best to have the funds invested with minimal or no risk and capture a substantial return. As a result, it was not necessary for the Court to address the submissions made in the factum of the Black Stallion Entities that the Plaintiffs do not meet the test at law for the appointment of a monitor, and no findings or conclusions were made in this regard.
46The Plaintiff's motion for an order appointing an investment monitor (in respect of which costs are sought) was properly brought, and the costs to prepare motion material were properly incurred. After the motion was brought, Mohammed Aljabri and the Corporate Defendants consented to an order appointing an investment monitor, and the Black Stallion Entities, did not oppose the appointment of an investment monitor, leaving the only contentious issue being the scope of the order. The responding parties, Mohammed Aljabri and the Corporate Parties, and the Black Stallion Entities, were substantially successful on this issue. The fact that the order was later varied on a motion by the Investment Monitor does not affect the costs of the motion heard on December 13, 2024.
47I exercise my discretion to award costs of the Investment Monitor Motion to the responding parties who were substantially successful on the only contentious issue at the hearing of the motion, that is, the scope of the powers of the investment monitor. I reduce the amounts claimed for costs by the responding parties to account for the Plaintiffs' costs of preparing the motion materials which I determine to be $15,000.
48I fix costs of the Investment Monitor Motion to be paid by the Plaintiffs to Mohammed and the Corporate Defendants in the amount of $25,000. I fix costs of the Investment Monitor Motion to be paid by the Plaintiffs to the Black Stallion Entities in the amount of $15,000.
6. Preliminary Motion (on motion to vary Mareva Orders)
49The Aljabri Defendants brought a motion to vary the Mareva Orders (the "Motion to Vary"). Within this motion, the Plaintiffs brought a preliminary motion (the "Preliminary Motion") for an order that Saad Aljabri and Mohammed Aljabri answer questions that were refused on their cross-examinations.
50The Plaintiffs argued the Preliminary Motion by asking for directions that the Aljabri Defendants be required to answer questions in five categories that were refused on the cross-examinations of the moving Defendants.
51The first category was questions regarding how the Aljabri Defendants have been meeting their ordinary living expenses to date (including source of funds) and how they intend to meet those living expenses going forward. The second category was questions regarding the "Non-Moving Defendants'" (those other than Saad, Mohammed and the Corporate Defendants) assets and their ability to pay for legal fees, living expenses and costs awards. I ordered that questions in these two categories be answered. I ordered that questions in the other three categories, which raised questions of privilege, did not need to be answered.
52The Divisional Court allowed an appeal with respect to that aspect of my Order directing the Aljabri Defendants to answer questions regarding the identity of the third parties who are paying for their living expenses and remitted this aspect of the order back to me for determinations that relate to this part of the order. On June 2, 2026, I released an endorsement and ordered that the Aljabri Defendants shall not be required to disclose to the Plaintiffs the identities of the third-party funders.
53The Plaintiffs submit that the costs of the Preliminary Motion and the Motion to Vary must be determined having regard to the history of this action and the Aljabri Defendants' approach to the Motions to Vary. I set out their submissions in this respect when I address costs of the Motions to Vary. The Plaintiffs submit that having regard to these submissions, they should receive their partial indemnity costs of the Preliminary Motion in the amount of $20,000.
54The Aljabri Defendants submit that there was divided success on the Preliminary Motion and that there should be no costs of the Preliminary Motion.
55I accept the submission of the Aljabri Defendants that there was divided success on the Preliminary Motion. I have considered the submissions by the Plaintiffs concerning the history of the action and the approach taken by the Aljabri Defendants to the Motions to vary.
56I exercise my discretion and conclude that there should be no costs of the Preliminary Motion.
7. Motion to Vary the Mareva Orders
57The motion by Saad Aljabri and Mohammed Aljabri and the Corporate Defendants to vary the Mareva Orders was decided with reasons released on March 28, 2025. Dreams was separately represented as a moving party on this motion. The relief sought by the moving parties was granted, except for Dreams.
58The Aljabri Defendants seek costs of this motion on a partial indemnity scale in the amount of $200,000. They submit that this amount is reasonable in the circumstances. They submit that the motion was procedurally complex, counsel had to prepare and defend approximately 15 witnesses for two rounds of examinations and prepare answers to two rounds of undertakings, in addition to preparing extensive motion materials and briefing legal arguments. The Aljabri Defendants submit that the importance of the issues justifies the amount claimed for costs. The Aljabri Defendants did not provide a Costs Outline showing the time spent in relation to this motion.
59The Plaintiffs submit, for several reasons, that the Aljabri Defendants should bear their own costs of the Motion to Vary.
60The Plaintiffs submit that the Aljabri Defendants failed to comply with a consent order requiring the Aljabri Defendants to move to release funds for legal expenses and living expenses (only Saad, Mohammed, the Corporate Defendants and Dreams brought a motion, and only in respect of legal expenses).
61The Plaintiffs submit that the Aljabri Defendants' approach taken to the Motion to Vary was deficient and failed to comply with the Credit Valley test and, as a result, the Plaintiffs were obliged to bring the Preliminary Motion which led to the Aljabri Defendants being required to answer additional questions about their assets leading to disclosure of additional information about their assets.
62The Plaintiffs submit that following the Preliminary Motion, they learned that the law firm representing Saad and the law firm representing Mohammed and the Corporate Defendants had been paid invoiced amounts up to December 2024 including amounts received after the Motion to Vary was brought and the hearing of the Preliminary Motion in June 2024. The Plaintiffs submit that if they had not received information as a result of the Preliminary Motion, the Court would have been misled at the hearing of the Motion to Vary.
63The Plaintiffs submit that shortly before the hearing of the Motion to Vary, Mohammed and the Corporate Defendants agreed to provide information regarding USD $37.5 million transferred from bank accounts controlled by them since the issuance of the Saad Mareva. They say that the information disclosed that money was held at various law firms, at least since the issuance of the Mohammed Mareva. The Plaintiffs submit that it was misleading for the Aljabri Defendants to assert that law firms which had represented them faced a risk of non-payment while the firms held millions of dollars in trust.
64The Plaintiffs submit that in light of these submissions, the proper and just order is that Saad, Mohammed and the Corporate Defendants bear their own costs.
65I do not regard the failure of the Aljabri Defendants to comply strictly with the terms of the consent order to be a consideration that justifies depriving them of costs of the Motion to Vary. Although the consent order, by its terms, required a motion to vary the Mareva Orders in respect of legal expenses and living expenses, the Aljabri Defendants were unable to satisfy the first part of the Credit Valley test in respect of living expenses and, as a result, were unable to properly move for this relief. The fact that the Plaintiffs were successful, in part, on the Preliminary Motion is a factor that was taken into account in determining the costs of that motion. I decline to exercise discretion to deprive the Aljabri Defendants of costs of the Motion to Vary because of the outcome of the Preliminary Motion and the information obtained thereby. The money held in trust accounts at law firms that represented the Aljabri Defendants is subject to the Mareva Orders in an action where the Plaintiffs make proprietary claims. Given this, I do not agree that the Aljabri Defendants made a misleading assertion that the law firms faced a risk of non-payment. I do not deprive the Aljabri Defendants of costs of their motions to vary for this reason.
66The moving parties on the Motion to Vary, except for Dreams, were successful and are presumptively entitled to an award of costs on a partial indemnity scale. The motion was very important to the successful parties because it allows them to access frozen funds to pay for legal expenses for what is scheduled to be a long trial. The motion involved a complicated procedural background. There were many examinations conducted as well es extensive briefing.
67When I consider the factors in Rule 57.01 of the Rules of Civil Procedure and the principle in Boucher, I conclude that the amount that is fair and reasonable for the Plaintiffs to pay to the Aljabri Defendants for costs of the motion to vary is $150,000. I am satisfied that this amount is within a range of costs that the Plaintiffs would reasonably expect to pay to the Aljabri Defendants if they were unsuccessful in opposing the motion.
68Dreams was a moving party on the Motion to Vary. At the hearing, Dreams filed a separate reply factum. Dreams sought release of frozen funds in the amount of $1.56 million (to be released in stages). Dreams was unsuccessful on the Motion to Vary.
69The Plaintiffs seek costs of the Motion to Vary from Dreams in the amount calculated as approximately ¼ of the partial indemnity costs incurred by the Plaintiffs in responding to the Motion to Vary in the amount of $21,000.
70Dreams submits that costs should not be awarded against Dreams on the Motion to Vary because the Defendants were mostly successful on the motion and Dreams' role was relatively minor. Dreams submits that to the extent that costs associated with Dreams are assigned by the Court, such costs can be covered by a small offset in costs awarded to the other Defendants. The Aljabri Defendants agree that costs to be paid by Dreams should be applied as an offset to the amount of costs to be paid to the Aljabri Defendants.
71I do not agree that costs awarded against Dreams should be calculated as a percentage of costs incurred by the Plaintiffs for responding to the Motion to Vary. The materials filed by Dreams were limited, and their submissions were brief. There was a short cross-examination of a law clerk who filed an affidavit.
72When I consider the principle in Boucher and the factors in Rule 57.01 of the Rules of Civil Procedure, I fix costs to be paid by Dreams to the Plaintiffs in the amount of $10,000. This amount is fair and reasonable in the circumstances.
73I fix costs of the Motion to Vary be paid by the Plaintiffs to the Aljabri Defendants (the moving parties, except for Dreams) on a partial indemnity scale in the amount of $150,000, less the amount of $10,000 to be paid by Dreams, for a net amount of $140,000.
Summary
74For these reasons, costs of these motions are disposed of as follows:
a. Trust Ledger Motion – The Plaintiffs are ordered to pay to the Aljabri Defendants costs fixed in the amount of $40,000.
b. Bank Statements Motion – The Aljabri Defendants are ordered to pay to the Plaintiffs costs fixed in the amount of $15,000.
c. Proffer Motion – The Plaintiffs are ordered to pay to the Aljabri Defendants costs fixed in the amount of $25,000.
d. Privilege Motion – The Aljabri Defendants are ordered to pay costs to the Plaintiffs fixed in the amount of $40,000.
e. Investment Monitor Motion – The Plaintiffs are ordered to pay to the Mohammed and the Corporate Defendants costs fixed in the amount of $25,000. The Plaintiffs are ordered to pay to the Black Stallion Entities costs fixed in the amount of $15,000.
f. Preliminary Motion (on Motion to Vary) – No costs.
g. Motion to Vary – The Plaintiffs are ordered to pay to the Aljabri Defendants costs fixed in the amount of $140,000 (net of costs in the amount of $10,000 awarded in favour of the Plaintiffs against Dreams).
75I ask counsel to provide me with an approved form of order to be signed to give effect to this endorsement.
Cavanagh J.
Date: June 3, 2026