Sean Pierce

The Court of Appeal for Ontario dismissed the appeal of Vahid Mehdizadeh Asiyaban and 2468692 Ontario Ltd. against Halime Khatoun Aghdasi.

The trial judge had found that the appellant falsified evidence and solicited false testimony in support of a property claim in family litigation.

The Court held that the trial judge was entitled to reject the appellant’s uncorroborated evidence and found no basis to interfere with the credibility findings.

The appeal was dismissed in its entirety, and the appellant was ordered to pay costs to the respondent.

The decision grants the motion of Saad Khalid S. Al Jabri for leave to issue a commission and letters of request to obtain evidence from witnesses outside Ontario for use at trial.

The court finds that the anticipated evidence of the proposed witnesses is material to issues in the action, and that the request is bona fide.

The ruling addresses the test for issuing commissions and letters of request, emphasizing the importance of a fair and full trial, and applies the test to several categories of proposed witnesses, including alleged co-conspirators, foreign officials, and counterterrorism experts.

The decision concerns a motion by Saad Aljabri and related parties for leave to issue a counterclaim in a complex civil action.

The court dismissed the motion, finding that the proposed counterclaim for abuse of process and conspiracy was statute-barred under Ontario law, and that the applicants failed to prove that Saudi law applied or that any exception to the limitation period existed.

The court also found that the proposed claims for declaratory relief against additional parties were not supported by a tenable cause of action.

The risk of prejudice to the plaintiffs, including loss of the scheduled trial date and increased costs, further supported dismissal.

The court determined the appropriate prejudgment and post-judgment interest rates following an award of damages and punitive damages to the plaintiff for the improper registration of a certificate of pending litigation.

The court found that prejudgment interest should run from the date the certificate was registered, calculated at an average rate reflecting market changes, and that post-judgment interest applies to all amounts owing under the order, including costs.

The decision addresses a motion by Saad Aljabri, Mohammed Aljabri, and various corporate defendants to vary Mareva orders freezing their worldwide assets, seeking the release of frozen funds to pay legal fees.

The court grants the motion for all moving parties except Dreams International Advisory Services Ltd., finding that the Mareva Defendants have shown they lack access to other assets or reliable third-party funding, and that a variation is necessary to ensure a fair trial.

The court dismisses the motion by Dreams, finding insufficient evidence that it lacks access to other funds.

The decision reviews the legal test for varying Mareva orders and applies a balancing of interests, including the merits of the case, the complexity of the litigation, and the conduct of the parties.

This decision addresses a motion by the plaintiffs for production and directions regarding claims of privilege over thousands of documents and answers to questions refused on discovery in a complex, multi-party commercial litigation.

The court reviews the legal principles governing solicitor-client privilege, litigation privilege, and common interest privilege, and applies them to various categories of documents and questions.

The court provides detailed directions on the production of documents, the sufficiency of evidence to support privilege claims, and the process for resolving ongoing disputes about privilege.

This costs endorsement follows a judgment in favour of the plaintiff, Halime Khatoun Aghdasi, in a dispute over two properties.

The court found that the defendant, Vahid Mehdizadeh Asiyaban, engaged in reprehensible conduct, including fabricating evidence, and awarded substantial indemnity costs to the plaintiff.

The decision reviews the applicable legal principles for costs, the scale of costs, and the quantum, ultimately awarding the plaintiff $279,495 in fees plus HST and disbursements.

The plaintiffs brought a motion seeking a declaration that a document ("the Proffer") provided by the defendant to the Attorney General for Canada (AGC) under s. 38 of the Canada Evidence Act was not subject to privilege or that any such privilege had been waived, and an order for its production.

The defendant asserted litigation privilege.

The court found that the Proffer was created for the dominant purpose of preparing for litigation, making it presumptively protected by litigation privilege.

The court further held that the disclosure of the Proffer to the AGC, being a statutory compulsion, did not constitute a voluntary waiver of privilege, nor did fairness and consistency require waiver.

The plaintiffs' motion was dismissed.

Following the breakdown of their common-law relationship, the parties disputed ownership of two properties.

The plaintiff sought a 50% interest in a commercial property registered to the defendant's corporation, while the defendant sought a 50% interest in a residential property registered to the plaintiff.

The court found the plaintiff contributed 50% to the commercial property and awarded her a half interest via resulting trust.

The court dismissed the defendant's claims to the residential property, finding he made no contributions and fabricated invoices to improperly obtain a Certificate of Pending Litigation.

The plaintiff was awarded $241,000 in damages for the improper CPL and $100,000 in punitive damages for the defendant's malicious litigation conduct.

The plaintiffs moved to compel the defendants, Saad Aljabri and Mohammed Aljabri, to produce law firm trust ledgers and to answer certain questions from examinations.

The court held that trust ledgers are presumptively protected by solicitor-client privilege and that the plaintiffs failed to rebut this presumption.

The court further concluded that the "crime/fraud" exception to solicitor-client privilege does not apply to civil wrongs, including civil fraud, following the principle of horizontal stare decisis.

Consequently, the motion to compel production of trust ledgers was dismissed.

The motion to compel Mohammed Aljabri to answer undertakings and other questions was allowed, subject to redactions for privileged information in bank statements.

The defendants (Moving Parties) sought an order for the issuance of two letters of request to judicial authorities in the Kingdom of Saudi Arabia to compel the examination of two witnesses, Yasir O. Al-Rumayyan and Fahad Nasser Alarfaj.

The Moving Parties argued these witnesses had relevant evidence for their motion to set aside Mareva orders, particularly regarding alleged contradictory positions taken by the plaintiffs (controlled by Saudi Arabia's Public Investment Fund) in this action versus unrelated U.S. litigation (LIV Golf Litigation) concerning PIF's independence from the KSA government.

The motion was unopposed by the plaintiffs.

The court found the proposed witnesses had prima facie relevant evidence and that the requirements under Rules 39.03 and 34.07(2) for examining non-parties and issuing letters of request for witnesses outside Canada were met.

The order for letters of request was granted.

The court-appointed receiver brought a motion for an approval and vesting order (AVO) to sell a real estate development property to a third-party purchaser.

A second mortgagee and joint venture participant brought a cross-motion to redeem the property or, alternatively, for approval of its credit bid.

The court dismissed the cross-motion, finding that allowing a redemption after a court-approved sale process had concluded would undermine the integrity of the process.

The court granted the receiver's motion, holding that the proposed sale satisfied the Soundair principles, as the receiver acted providently, considered all stakeholders' interests, and conducted a fair and commercially efficacious process.

The applicants brought a Charter challenge against the public funding of Roman Catholic separate schools for non-Catholic students and high school students in Ontario.

The respondent moved to strike the application under Rule 21.01.

The court granted the motion, finding that the Supreme Court of Canada had already determined these issues in the Reference re Bill 30 decision, which held that minority education rights under section 93 of the Constitution Act, 1867 are immune from Charter scrutiny.

The court concluded there was no new legal issue or fundamental change in circumstances that would allow it to depart from binding precedent, rendering the application doomed to fail.

The plaintiffs brought a motion for contempt against the defendants, alleging they breached a Mareva injunction by using frozen assets to pay for living and legal expenses.

In response, the defendants brought several procedural motions.

Dr. Saad moved to strike compelled evidence from the plaintiffs' contempt motion record, arguing it violated his Charter rights against self-incrimination.

The court dismissed this motion, finding that a contempt motion is not 'other proceedings' under s. 13 and that ss. 7 and 11(c) did not apply to previously compelled evidence.

Dr. Saad also moved under Rule 21 to exclude prior judicial rulings made in the civil action from the contempt motion.

The court granted this motion, holding that findings made on a civil standard are inadmissible in a quasi-criminal contempt proceeding.

The plaintiffs moved to compel the defendants to answer undertakings and produce documents.

The court ordered Dr. Saad to answer undertakings but ruled the answers could not be used in the contempt motion, and declined to order further document production that would conscript the defendants to assist in their own prosecution.

The court also limited the plaintiffs' disclosure obligations to the alleged breach, refusing broad discovery on the underlying fraud.

Finally, the court dismissed Mohammed's motion to stay the contempt proceedings pending his appeal on jurisdiction.