Former Saudi interior ministry official allegedly misappropriated over US$5.36 billion
The Ontario Superior Court of Justice dismissed a motion by the plaintiffs in a civil fraud case to compel disclosure of a redacted document, ruling it was protected by litigation privilege and that no waiver of privilege had occurred.
In Sakab Saudi Holding Company v. Saad Khalid S Al Jabri, 2024 ONSC 6659, the plaintiffs sought a declaration that redacted document, referred to as the "Proffer," was not subject to privilege or that any privilege had been waived and requested an order directing its production. The court ruled that the document was protected by litigation privilege and that no waiver had occurred.
The lawsuit involves allegations by the plaintiffs, corporations established to conduct commercial and counterterrorism activities in Saudi Arabia, against the defendant, Saad Aljabri, a former official in the Ministry of the Interior of Saudi Arabia. The plaintiffs claimed the defendant misappropriated over US$5.36 billion. The defendant denied these allegations, asserting that the funds were authorized and used for counterterrorism purposes and as compensation for his service.
The Proffer was prepared by the defendant’s legal counsel under s. 38 of the Canada Evidence Act (CEA). This section mandates a review of potentially sensitive or injurious information by the Attorney General of Canada (AGC) to safeguard national security. The Proffer was submitted for this review and returned with redactions determined necessary to protect national security interests.
The Superior Court considered whether the Proffer was subject to litigation privilege, which protects documents prepared for the dominant purpose of litigation. It concluded that the Proffer was integral to the defendant's preparation for the lawsuit. Specifically, the court recognized that the s. 38 process allows a party to determine what evidence may be disclosed, making it a necessary component of the litigation process.
The plaintiffs argued that the privilege had been waived because the Proffer was shared with the AGC and potentially third parties. The court rejected this argument, emphasizing that compliance with statutory obligations under s. 38 does not constitute voluntary disclosure. The court also noted that litigation privilege differs from solicitor-client privilege in that confidentiality is not essential for the former. The plaintiffs failed to show that the defendant had waived privilege or used the Proffer in a manner inconsistent with maintaining its protected status.
In its decision, the court reiterated that the defendant had undertaken to provide summaries of non-redacted material facts from the Proffer and any non-injurious summaries prepared by the Federal Court. This undertaking, the court held, ensures that the plaintiffs are not prejudiced by the withholding of the document. Ultimately, the court dismissed the motion.
