Invest Bank PSC c. Al-Husseini  
2022 QCCS 1909  
SUPERIOR COURT  
CANADA  
PROVINCE OF QUEBEC  
DISTRICT OF MONTREAL  
No.:  
500-17-117370-216  
DATE: May 26, 2022  
_____________________________________________________________________  
BY THE HONOURABLE SYLVAIN LUSSIER, J.S.C.  
_____________________________________________________________________  
INVEST BANK P.S.C.  
Plaintiff  
v.  
AHMAD MOHAMMED AL-HUSSEINI  
(Also known as)  
AHMED EL-HUSSEINY  
2759-2856 QUÉBEC INC.  
3043428 CANADA INC.  
Defendants  
_____________________________________________________________________  
JUDGMENT  
(ON MOTION TO DISCHARGE A MAREVA INJUNCTION)  
_____________________________________________________________________  
CONTEXT  
[1] The Court is seized with an Application to Discharge a “Mareva” Order1 issued on  
June 30, 2021, by Justice Suzanne Courchesne and renewed from time to time.  
[2]  
This Order was issued in the context of proceedings instituted by Invest Bank  
P.S.C.2 seeking to have recognized and declared enforceable in Quebec two judgments  
1
2
The “Mareva Order”.  
“Invest Bank”, or the “Bank”.  
500-17-117370-216  
PAGE : 2  
issued in the United Arab Emirates3 by the Abu Dhabi Court of First Instance against  
the defendant Ahmed Mohammed Al-Husseini4.  
[3] Alternatively, Invest Bank seeks the enforcement in Quebec by Originating  
Application of two personal guarantees given by Mr. Al-Husseini for the benefit of Invest  
Bank.  
[4] These personal guarantees would have been given by Mr. A-Husseini as  
controlling shareholder of Al Tadamun Glass & Aluminium Co. LLC5 and Commodore  
Contracting Co. LLC,6 allegedly the Bank’s debtors.  
[5] Invest Bank is a bank located in the Emirate of Sharjah, in the UAE, established in  
1975. It has corporate and retail clients and offers a wide range of banking services,  
according to its website7.  
[6] The Order was sought on the basis a series of asset transfers allegedly conducted  
in fraud of the rights of the Bank mainly in 2017, and other alleged dishonest conduct of  
defendant Al-Husseini and parties related to him.  
[7] The Order contained some of the conclusions typically found in Mareva orders and  
enjoined defendants Al-Husseini and two numbered companies, which he controls, not  
to dispose of, or encumber any of their property of any nature whatsoever wherever  
situate, including the securities of the companies and land situated in the City of Labelle  
and land in British Columbia. A seizure before judgment of corporate Defendants’ shares  
and the land in Labelle was also authorized.  
[8] By their Application, notified on November 26th, 2021, Defendants are seeking to  
discharge the Order submitting it was obtained on the basis “of false and blatantly  
misleading allegations, in the context of a vexatious and abusive campaign of legal  
proceedings instituted against Ahmad Al Husseini in several jurisdictions throughout the  
world”.  
[9] This Application to Discharge the Mareva Order is specifically permitted by  
paragraphs 16 and 8 of the judgments rendered by Justices Courchesne and Conte  
respectively. Hearing on the issuance of an interlocutory injunction has yet to be set.  
3
4
5
6
7
The “UAE”.  
“Al-Husseini”.  
“Tadamun”.  
“Commodore UAE”.  
Exhibit P-1.  
500-17-117370-216  
PAGE : 3  
ISSUES IN DISPUTE  
[10] Defendants’ main argument on this application is that Plaintiff Invest Bank did not  
make a “full and frank disclosure” of the matter in dispute, contrary to its duty in the  
seeking of a Mareva injunction, thereby justifying the discharge of the Order.  
[11] Also at issue is the colour of right (apparence de droit) of Plaintiff’s claims.  
[12] The Court will dispose of a verbal demand to increase security for costs posted by  
Invest bank.  
[13] For the reasons that follow, the Court dismisses both applications.  
ANALYSIS  
I
GENERAL PRINCIPLES  
[14] The object of a Mareva order is to freeze the assets of a defendant in order to  
prevent their dilapidation. The objective is:  
« la conservation des actifs dans des situations de fraude et de détournement de fonds  
afin d’assurer au demandeur qui obtiendra un jugement final favorable de pouvoir être  
dédommagé.8»  
[15] As the Court of Appeal wrote in Desjardins Assurances générales inc. c. 9330-  
8898 Québec inc.,9:  
L’injonction provisoire de type Mareva  
[42]  
L’injonction de type Mareva permet de bloquer des actifs entre les mains du  
possesseur, que ce soit le défendeur ou un tiers. Elle n’emporte pas une dépossession  
de ces actifs, mais plutôt l’impossibilité pour la partie visée de s’en départir.  
[43]  
Les ordonnances de type Mareva sont exceptionnellement utilisées, lorsque, face  
à des comportements frauduleux, louches, déloyaux ou de mauvaise foi, il existe un risque  
réel de dissipation d’actifs.  
[44]  
En effet, l’injonction de type Mareva permet d’éviter l’aliénation des biens du  
défendeur et d’interdire à ce dernier, ou à un tiers en possession de ces biens, de les  
aliéner, de les transférer ou de s’en départir de quelque manière avant l’instruction au  
fond de l’affaire.  
[45]  
Il s’agit d’une mesure contraignante ressemblant sous certains aspects à la saisie  
avant jugement, à la différence que cette dernière se rattache à un bien alors que  
l’injonction de type Mareva se rattache à la personne.  
8
9
Piché-Messier, Mathieu, Catherine Lussier et Laurence Burton, « Développements récents en matière  
de propriété intellectuelle dans le cadre des ordonnances de type Anton Piller, Mareva et Norwich »,  
Revue de Droit de l'Université de Sherbrooke 127, 2014 CanLIIDocs 368, page 151.  
2019 QCCA 523.  
500-17-117370-216  
PAGE : 4  
[46]  
Dans l’affaire Aetna Financial Services c. Feigelman, la Cour suprême a précisé  
qu’au Québec, l’injonction de type Mareva trouvait sa source dans le dernier paragraphe  
de l’article 752 de l’ancien Code de procédure civile, lequel correspond maintenant au  
premier alinéa de l’article 511, portant sur l’injonction interlocutoire.  
[47]  
Ainsi, au Québec, les critères devant être satisfaits pour obtenir le prononcé  
d’une injonction de type Mareva sont les mêmes que ceux de l’injonction interlocutoire,  
c’est-à-dire : (1) l’apparence de droit; (2) le préjudice sérieux et irréparable et (3) la  
balance des inconvénients. S’ajoute à ces critères celui de l’urgence, s’il s’agit d’une  
demande injonctive de type provisoire.  
(references omitted)  
[16] The parties agree on the requirements necessary to the issuance of a Mareva  
order. These requirements have been refined through court decisions, and have been  
summarized, in their applicability to Quebec disputes, by the Court of Appeal in  
Marciano10, penned by Justice Dalphond:  
[47]  
(…) As a general rule, an obligation of full and frank disclosure applies in Quebec  
in connection with any ex parte orders because counsel for the applicant is asking the  
judge to engage in a procedure that runs counter to the fundamental principle of justice  
that all sides of a dispute should be heard. In my view, it follows that in cases where  
opposing interests are certain to exist, the moving party "is under a super-added duty to  
the court" (Canadian Paraplegic Association, supra) to state its own case fairly and to  
inform the Court of any points of fact or law known to it which favour the other side that  
may have a bearing on the outcome of the application. This obligation should be  
considered according to an objective standard: what would a reasonably qualified lawyer  
have done in the same circumstances?  
[17] The parties disagree on the respect of the requirements in the case at bar.  
[18] The Court of Appeal defined the template for the exercise to which the Court is  
convened in Marciano, after choosing which approach should be adopted in light of an  
incomplete disclosure:  
[53]  
Under the first approach, the failure to disclose a material or relevant fact, even  
inadvertently, causes a judgment setting aside or dissolving the ex parte injunction  
possibly with solicitor and client costs and even damages. Under the second, the courts  
found that notwithstanding material non-disclosure there was a residual discretion to  
continue the injunction.  
(…)  
[56]  
In my view the second approach should be adopted in Quebec as well. When  
there is material non-disclosure, the following factors should be considered by the judge  
hearing a motion to rescind or annul an ex parte order:  
- the importance of the omitted facts to each of the issues decided by the judge;  
- whether the omission was inadvertent, its relevance was misconstrued or  
whether the omission was made with the intent to mislead the judge;  
- the prejudice occasioned to the party affected by the ex parte order;  
10  
Marciano (Séquestre de), 2012 QCCA 1881.  
500-17-117370-216  
PAGE : 5  
- whether the order reviewed could be granted again on the basis of a corrected  
record.  
In the end, this analysis shall in no way excuse counsel who did not discharge his or her  
heavy duty of candour and care. In fact, failure to comply with the obligation of full and  
frank disclosure is a serious breach by a court officer calling for discipline by the Court  
and/or the Bar.  
[19] Both Plaintiff’s affiant, Mr. AI-Khoumassi, and Defendant Al-Husseini have been  
extensively examined and both parties have made reference to the examinations and  
the information disclosed since the issuance of the Mareva Order. In conformity with the  
teachings of the Court of Appeal in Marciano, the Court deems appropriate to consider  
this evidence to assess whether the Order was properly granted or would be “granted  
again”11.  
II  
FULL AND FRANK DISCLOSURE  
A. Validity of Service  
[20] Defendant Al-Husseini submits that the Bank wrongfully alleged that it acted  
lawfully in not serving him personally with the UAE foreign proceedings which led to the  
UAE Judgments which the Bank is now seeking to have recognized and enforced in  
Quebec, rather serving him by publication “in a local UAE newspaper” at a time it has  
admitted knowing that he was not in the UAE.  
[21] Defendant Al-Husseini alleges that he had in fact provided contact information  
regarding his home address in Beirut, Lebanon, and that this information was officially  
on record with Invest Bank.  
[22] This information was provided in January 2017, when Mr. Al-Husseini borrowed  
USD $6 million from Invest Bank’s Beirut branch, which loan which was subsequently  
fully repaid in June of 2017.  
[23] Accordingly, Defendant Al-Husseini advances that the decision to serve him by  
publication in a “local UAE newspaper” would have been done in order to avoid his  
learning of the existence of the proceedings, and that since the affidavit of Mr. Keith  
Hutchison opining on the validity of service of the UAE proceedings upon him, is based  
on erroneous information, it must be set aside.  
[24] Invest Bank, on the contrary, argues that it made full and frank disclosure of the  
possible arguments against the validity of service of the UAE proceedings.  
11  
9307-3336 Québec inc. v. Literie Fine Bigarade inc., 2020 QCCS 2387, at paragr. 59; Almita  
Manufacturing Ltd. v. Ali-Nasr, 2009 ABQB 740, at paragr. 31.  
500-17-117370-216  
PAGE : 6  
[25] It advances that service by notice in UAE newspapers was disclosed to the Court  
by the Bank in paragraphs 157 to 158 of the First Al-Khoumassi Affidavit, including the  
following passages:  
157. Without any wider waiver of privilege, Exhibit P-137 communicated herewith is a  
sworn statement from the Bank’s UAE lawyers (but not the lawyers who represented the  
Bank in the UAE proceedings) addressing how both sets of proceedings were served and  
the validity of such service. It sets out the facts and law relevant to any appeal by Ahmad  
against the UAE Judgments on grounds of invalid service. It also addresses the nature  
and effect of appeals against, and the current status of, the UAE Judgments. In summary:  
[…]  
157.3 There were contact details available to the Bank which could have been used to  
effect service on Ahmad other than by publication in a newspaper. This would give Ahmad  
a substantial argument in seeking to appeal the UAE Judgments and effectively re-open  
proceedings. However, the prospects of any such appeal are unclear given that the Abu  
Dhabi Court of Appeal has a discretion to refuse such appeals notwithstanding  
irregularities in service and. in deciding upon the appeal that Court would, in particular,  
consider factors such as Ahmad having left the UAE to avoid his creditors.  
[26] Paragraph 53 of the Application for Mareva injunction also sets out the following:  
53. Ahmad may argue that the UAE Judgments should not be recognized or enforced in  
England because: (i) they were obtained in breach of natural justice on the basis that he  
may claim that he was not actually notified of the Tadamun UAE and/or Commodore UAE  
Proceedings even if they were validly served as a matter of UAE law, and/or (ii) they were  
not validly served as a matter of UAE law and so stand to be set aside in the UAE courts.  
[…]  
[27] Paragraphs 12.3.2, 12.3.4 and 13 of the Advice Note of Clyde & Co.12 make  
specific reference to the fact that Al-Husseini had applied for a loan with the Bank’s  
Beirut Branch and had provided an address at the Medstar Building in Beirut, Lebanon.  
[28] Notwithstanding this fact, Clyde & Co. opined that the service of the UAE  
Proceedings was done following UAE law. They may be wrong, but this is an argument  
on the merit of the application to enforce a foreign judgment, not on the failure to make  
full and frank disclosure.  
[29] The UAE Court of Appeal and the Court of Cassation have since dismissed  
Defendant Al-Husseini’s leaves for appeal on the ground that service of proceedings  
was properly effected. Whether the judgments may be enforced in Quebec, and whether  
they are still susceptible of further recourses are issues for the merits.  
12  
Exhibit P-137.  
500-17-117370-216  
PAGE : 7  
[30] It is also submitted by Invest Bank, through Mr. Al-Khoumassis’ second Affidavit13  
and his subsequent examination14, that there is no direct contact between its UAE and  
Beirut branches.  
[31] The Court does not believe that it is appropriate, at this stage of the proceedings,  
to make findings of credibility, unless there is flagrant inconsistency or reticence of the  
deposed party.  
[32] The Court accordingly accepts that the Bank did not know the Beirut address at  
the time of serving the UAE proceedings.  
[33] The Court also accepts that when Defendant Al-Husseini contracted the USD 6  
million loan, he was a resident of the UAE, and that when he left the UAE, in April of  
2017, he did not inform anyone at Invest Bank of same. In that respect, his reticence to  
give a straightforward answer in his examination of 7 February 2022, is telling.  
[34] The Court does not find that Invest Bank failed to make full and frank disclosure of  
the validity of service issue.  
B. Discrepancies in, and Forgery of, Guarantee Documents  
[35] Defendants raise differences between certain copies of the personal guarantees  
that support the Bank’s claim.  
[36] Exhibits P-8 and P-158 are compared at page 31 of Defendants’ Plan of Argument.  
[37] The Court has opined, during oral argument, that there was nothing nefarious in  
the fact that different copies of the same document bore different hand-written  
annotations.  
[38] Mr. Al-Khoumassi admits that there were errors in the translation of certain exhibits  
filed in support of the Bank’s claim, as well as in the reproduction of the amounts of  
indebtedness appearing form same15.  
[39] While there were typographical errors in the quantum of the guarantee given by  
Commodore Offshore for Commodore UAE in the First Al-Khoumassi Affidavit16, as well  
as in the translation of the guarantee of Commodore Offshore for Tadamun, which gave  
the value as AED17 18,000,000 instead of the true value of AED 180,000,000, the correct  
13  
14  
Paragraph 9.  
Examination of Al-Khoumassi of 13 October 2021, page 138 lines 18 to page 139 line 14.  
Paragraph 19 of the second Affidavit of Mr. Al-Khoumassi; Exhibits P-158, P-159, P-160 and P-161.  
The value given was AED 57,630,000 instead of the true value of AED 55,370,000.  
United Emirates Dirham, one dirham being worth approximately $0, 35 CDN.  
15  
16  
17  
500-17-117370-216  
PAGE : 8  
values of the Commodore Offshore guarantees were always in the original language  
documents filed with the Court, even in their incomplete version.  
[40] In addition, these typographical errors only concerned the Commodore UAE  
guarantees and not the guarantees given by Mr. Al-Husseini. They do not concern  
documents relied on by the Bank.  
[41] The Court does not find that these errors were intentional and that they were meant  
to mislead it.  
[42] Defendant further asserts that the guarantee documents filed in support of the  
Bank’s claim are forgeries. Should he be right, the Bank will fail. However, the Court  
cannot assume, at this stage, without very convincing evidence, that the Bank knowingly  
filed forged or false documents.  
[43] It is to be noted that in his contestation of the seizure before judgment, which was  
also ordered by Justice Courchesne, filed in July 2021, Mr. Al-Husseini did not allege  
that his personal guarantees were forged.  
[44] There is, at this stage, sufficient prima facie evidence that Mr. Al-Husseini signed  
personal guarantees for the debts of Tadamun and Commodore UAE.  
[45] As one example, the audited accounts for Commodore UAE for 2015, when Mr.  
Al-Husseini was CEO, that were provided to the Bank, were signed by Mr. Al-Husseini  
and confirm that the company’s banking facilities were secured by personal guarantees  
provided by Mr. Al-Husseini18.  
[46] The arguments advanced by each party raise issues of credibility. The validity of  
those instruments is better left for the judge on the merits, or at least on the hearing of  
the interlocutory injunction, which is yet to be fixed.  
C. Claims against Defendant Al-Husseini in Other Jurisdictions  
[47] Section E of the First Al-Khoumassi Affidavit19 describes proceedings taken by  
parties other than the Bank against Mr. Al-Husseini during or shortly after he transferred  
his assets.  
[48] Plaintiff argues that the existence of these cases militates in favour of the  
conclusion that Mr. Al-Husseini was transferring assets to his four sons, his ex-wife and  
a trust with the intention of concealing same from his creditors.  
18  
19  
Exhibit P-179, pages 1 and 30.  
Paragraphs 161 to 178.  
500-17-117370-216  
PAGE : 9  
[49] The relevant cases can be identified as follows: German criminal proceedings and  
European Arrest Warrant; Al Fujairah Bank proceedings.  
a) German Proceedings and European Arrest Warrant  
[50] Mr. Al-Khoumassi alleges in his first Affidavit that on 28 March 2018, a German  
Public Prosecutor issued a European Arrest Warrant20 against Defendant Al-Husseini in  
connection with fraud offences allegedly committed between 3 February 2015 and 27  
December 2016.  
[51] The allegations set out in the warrant state that Defendant Al-Husseini would had  
signed, as director, on behalf of a British company which he controls, namely Federal  
(Holding) Limited21, a services contract with Rheinmetall Aktiengesellschaft22, a German  
defence contractor, under which Federal would benefit from €15 million (CAD$  
22,013,488.50) remuneration.  
[52] The contract stipulated that the €15 million (CAD$ 22,013,488.50) was to be  
placed in a 'blocked account' in Federal's name with the monies only to be released  
upon Rheinmetall's provision of a declaration to the bank where the blocked account  
was held that contract conditions had been fulfilled. Defendant Al-Husseini and others  
would have falsely told Rheinmetall that a 'blocked account' had been opened and  
provided details. The latter transferred the €15 million (CAD$ 22,013,488.50) to the  
account whereupon Defendant Al-Husseini and others would have used the monies for  
their own benefit.  
[53] In consequence of those allegations, Mr. Al-Husseini was arrested at Heathrow  
Airport by the British Police. The Affidavit specifies, however, that he was released on  
bail and appeared at Westminster Magistrates' Courtfor aninitialextraditionhearing on 4  
May2018. Priortoa full extradition hearing, theprosecutor'sofficewithdrewtheEuropean  
ArrestWarrant and Mr. Al-Husseini was released.  
[54] Mr. Al-Khoumassi’s Affidavit states:  
[163] A news report dated 24 September 2019, communicated herewith as Exhibit P-  
11, stated that German prosecutors that German prosecutors "indicted [Ahmad] for fraud  
[in the summer of 2019" in connection with the Rheinmettal allegations], and further states  
that "a German court in Luneberg, Lower Saxony is now considering the indictment". The  
Bank has no further updates as further information about the current status of this matter  
is not available to non-parties.  
20  
21  
22  
Exhibit P-138.  
“Federal”.  
“Rheinmetall”.  
500-17-117370-216  
PAGE : 10  
[55] Mr. Al-Husseini has provided the information which Mr. Al-Khoumassi apparently  
did not have: The Rheinmetall case against Mr. Al-Husseini has been dismissed, and  
the appeal filed against that decision was also dismissed, in February 2020.  
[56] Mr. Al-Husseini was also offered compensation on account of his improper  
detainment. While his son accepted same, he personally declined23.  
[57] The Bank replies that third parties cannot access documents originating from  
German criminal files. Its position is that neither the Bank nor its investigation team were  
aware of the dismissal of the German proceedings at the time of the ex parte hearing or  
at any point before the ex parte hearing in this instance24.  
[58] The Court is not in a position to adjudicate on the German Rules of criminal  
proceedings and their application of the principle of publicity and access to court records  
with which we are familiar in Canadian law.  
[59] No contradiction has been offered to Mr. Al-Khoumassi’s statement. The Court  
does not find that the Bank tried to mislead the Court.  
b) Al Fujairah Bank’s Criminal Proceedings  
[60] Defendants raise the fact that the Bank refers to what they deem unfounded  
criminal proceedings that the Al Fujairah Bank commenced against Mr. Al-Husseini.  
[61] In paragraph 193.4 of his second Affidavit, Mr. Al-Khoumassi specifically states  
that the proceedings against him were dismissed.  
D. Plaintiff’s Difficult Financial Situation  
[62] Invest Bank asked to be exempted from posting security. More specifically, Invest  
Bank represented, in its Application for the issuance of the Mareva Order:  
68. Although the Bank is incorporated outside the jurisdiction, the Bank’s position is  
that a suretyship for damages is inappropriate in this instance because (i) any possible  
losses are likely to be low, (ii) the Bank will be able to set-off any such damage against  
the debt it is owed under the UAE Judgments, and (iii) the Bank is a reputable UAE bank,  
majority-owned by the government of Sharjah, and with substantial assets against which  
any judgment could be enforced.  
[63] Defendant raises, in its Application to Discharge the Mareva Order25, that Invest  
Bank failed to disclose that:  
i. Trading on its stock has been suspended since November 2020;  
23  
24  
25  
Exhibit D-4 and as confirmed in the Response Affidavit.  
Paragraphs 62 to 64 of the Second Al-Khoumassi Affidavit.  
At paragr. 133.  
500-17-117370-216  
PAGE : 11  
ii. According to its own report dated May 23, 2021, glaringly missing from its  
proceedings, its accumulated losses have “reached 55% of the capital” with a  
value of AED 1,752 billion; and  
iii. In 2020, it closed three of its branches in the UAE.  
[64] Should the Bank have disclosed these facts to the Court in its ex parte application  
for the issuance of the Order?  
[65] ”Mareva” and “Anton Piller” injunctions are obtained ex parte and may cause  
substantial damage to the defendant should they be ill-founded.  
[66] As Justice Binnie wrote, for the Court, in Celanese Canada Inc. v. Murray  
Demolition Corp.26:  
40  
Anton Piller orders are often conceived of, obtained and implemented  
in circumstances of urgency. (…)  
Unless and until model orders are developed by legislation or recommended by law  
societies pursuant to their responsibility for professional conduct, the following guidelines  
for preparation and execution of an Anton Piller order may be helpful, depending on the  
circumstances:  
(1) Basic Protection for the Rights of the Parties :  
(…)  
(ii)  
Absent unusual circumstances the plaintiff should be required to provide an  
undertaking and/or security to pay damages in the event that the order turns out to be  
unwarranted or wrongfully executed.  
(References omitted)  
[67] As written by Justice McDonald of the Queen Bench of Alberta in a passage often  
referred to in Royal Bank v. W. Got & Associates Electric Ltd. 27:  
The jurisdiction to grant such an injunction must be exercised with care: Aetna Financial  
Services Ltd. v. Feigelman, 1985 CanLII 55 (SCC), [1985] 1 S.C.R. 2 [[1985] 2 W.W.R.  
97]. And an undertaking as to damages would be required of the plaintiff.  
(Emphasis added)  
[68] This passage is echoed by that of Justice Michel Pinsonnault in 8032661 Canada  
inc. v. Moushaghayan28:  
[18]  
La jurisprudence et la doctrine nous enseignent qu’en matière d’ordonnance de  
type Anton Piller et de types Mareva et Norwich, le cautionnement prévu à l’article 755  
C.p.c. est la règle et la dispense se veut l’exception. En cas de dispense, le juge qui  
l’accorde doit justifier sa décision. [Soulignement ajouté]  
[19]  
Le cautionnement est demandé en prévision d’un dédommagement éventuel à  
être versé à la partie défenderesse si le Tribunal décide que l’ordonnance requise a été  
26  
27  
28  
2006 SCC 36.  
1994 CanLII 8922 (ABQB), at paragr. 19.  
2015 QCCS 5721, confirmed by 8032661 Canada inc. v. Moushaghayan, 2015 QCCA 2155.  
500-17-117370-216  
PAGE : 12  
obtenue par la partie demanderesse de façon injustifiée et/ou qu’il y a eu exécution  
abusive ou illégale de celle-ci. En pareilles circonstances, le cautionnement vise  
essentiellement à compenser la partie défenderesse pour les frais juridiques encourus en  
rapport avec une telle ordonnance, ainsi que des dommages et intérêts en réparation du  
préjudice subi dans la mesure où le juge en décide ainsi et tranche alors le montant à être  
versé, le cas échéant.  
[69] We shall see that article 755 of the Old Code of Civil Procedure29 has not been  
reproduced verbatim in article 511 C.C.P. The passage nonetheless illustrates the  
importance that courts give to the potential harm of such injunctions.  
[70] As recently stated by Justice Lukasz Granosik in Devimco Immobilier inc. c. HRM  
Projet Children inc.30:  
46 Le cautionnement pour frais n'est donc plus un automatisme bien qu'il vise toujours à  
démontrer le sérieux de la procédure et de l'engagement de la Demande. Il peut être  
accordé suivant la mesure du préjudice qui peut résulter de l'exercice fautif du droit à  
l'injonction interlocutoire.  
[71] Consequently, a plaintiff’s financial capacity remains a material issue in the context  
of the issuance of an “extraordinary injunction” such as a “Mareva” or “Anton Piller”  
order.  
[72] Defendants filed Exhibit D-5, a “Governance Report”, for the year 2020, emanating  
from the Bank, which is informative.  
[73] It discloses that the Bank closed three branches and reports that the Bank’s share  
price is currently placed on hold pending the finalization of the first quarter 2021 draft  
financials. It also confirms that the last trade of the Bank’s share took place on  
10/11/202031.  
[74] This Report also states32:  
“The Government of Sharjah had made a strategic decision to join Invest Bank P.S.C.  
(hereafter the “Bank”) as per Annual General Meeting dated 10 April 2019 with an  
investment of AED 1.115 Billion, making it a major shareholder with 50.07% ownership.  
This investment was made on a commercial basis, with the objective of creating long-term  
value and an operationally-strong financial institution.  
This strategic investment was followed by the election of the Bank’s new Board of  
Directors (hereafter referred to as the “Board”) on 10 April 2019, which set a priority to  
return the Bank to profitable growth through a comprehensive strategy that paves the road  
for better operating margins.”  
29  
CQLR c C-25.  
2020 QCCS 1038.  
At page 22.  
At page 2.  
30  
31  
32  
500-17-117370-216  
PAGE : 13  
[75] The Report goes on to state that the Bank is involved in major sponsorships in the  
fields of art, cultural and community initiatives33.  
[76] It is stated at paragraph 72 of Mr. Al-Khoumassi’s second affidavit that the Bank  
had recently recorded financial losses, result of losses on historic and legacy loans,  
which never impacted the viability of the Bank’s core business. The general assembly  
resolution passed on 30 June 202134 approved the Bank’s continuation as a going  
concern. Despite losses reaching 55% of the capital, the Bank continued to run as a  
business concern and is able to pay its debts. The losses have impacted the equity  
value of the Bank but have not affected its sustainability. The Bank continues to meet  
its financial obligations in a timely manner.  
[77] The Bank recognized, at least implicitly, at paragraph 68 of its Application, quoted  
above, that it could be liable for damages in case of abuse of the proceedings. While it  
can be argued that if it fails entirely in its endeavour, there will be no set-off of those  
damages against Defendant’s debts, it remains that a cease-trading order on a stock  
exchange is not necessarily a sign of insolvency.  
[78] In light of the figures contained in the exhibits, and of the involvement of the  
government of Sharjah, which was effective at the time of the presentation of the  
Application, the Court is satisfied that the Bank fulfilled its duty in addressing the issue  
of eventual damages, in its paragraph 68.  
[79] Defendant is asking the Court to modify the amount of security which was  
eventually posted by the Bank. This issue will be dealt with below.  
E. Lack of Urgency  
[80]  
In their Application to Discharge the Mareva Order, Defendants raise the fact  
that there was no urgency to issue same since the debts relied upon in the Bank’s claim  
date back to 2017.  
[81] The Bank replies that its claim is based on judgments which had only very recently  
become final and that it took it a certain amount of time to trace Defendant Al-Husseini’s  
assets.  
[82] For the purpose of the Application to Discharge the Mareva Order, the Court  
accepts this argument, which may be debated further at the interlocutory stage.  
[83] Defendants further raise in their Plan of Argument that the urgency alleged by the  
Bank to obtain the Mareva Order was not justified. Counsel for the Bank did answer  
Justice Courchesne’s query concerning the urgency of the situation, invoking possible  
33  
34  
At page 21.  
Exhibit P-188.  
500-17-117370-216  
PAGE : 14  
prescription of collateral proceedings in Germany, as appears in Mr. Al-Khoumassi’s first  
Affidavit.35  
[84] It turns out that he could have been mistaken in that regard36.  
[85] After studying the representations made to Justice Courchesne and the  
corrections made in the second Affidavit of Mr. Al-Khoumassi, the Court does not find  
that the Bank willingly misled the Court, nor that the presentation of the actual situation  
in Germany would have had led to a different result.  
F. Recovery Proceedings  
[86] Defendant raises that Invest Bank failed to disclose the extent, or lack of extent,  
of recovery proceedings against the principal debtors.  
[87] The amounts payable pursuant to Commodore and Tadamun contracts were  
assigned to Invest Bank.37  
[88] At paragraph 83.3 of his first Affidavit, Mr. Al-Khoumassi states:  
“The Bank has taken steps to enforce against security granted by Commodore  
UAE and Tadamun UAE, in particular, various contracts in respect of receivables of  
financed Commodore projects were assigned to the Bank. To date, the Bank has not made  
any significant realisations. The debtors which have been contacted have either failed to  
respond or denied any indebtedness. The Bank does not anticipate making any significant  
recoveries in the future in relation to these security arrangements.  
[89] At hearing, Defendants’ counsel filed a judgment rendered on October 12, 2021,  
by the Abu Dhabi Court of First Instance condemning a client of Commodore Contracting  
Company to pay to it an amount of AED 3 687 064.5638.  
[90] Defendant argues that Invest Bank should have disclosed the existence of this  
judgment.  
[91] The Court notes that the judgment was rendered after the issuance of the Mareva  
Order.  
[92] Invest Bank is not the creditor of that judgment. The record does not disclose that  
it was aware of that judgment, nor whether it was executed.  
[93] The argument may go to the merits of Invest Bank’s case but the Court does not  
identify a failure to disclose a material fact justifying the discharge of the Mareva.  
35  
36  
37  
38  
At Paragraph 243.  
At Paragraphs 141 and following of his Affidavit of January 2022.  
Exhibits P-57 and P-58.  
Exhibit AK2-2.  
500-17-117370-216  
PAGE : 15  
G. Other Reproaches  
[94] Defendant also raises the fact that Invest Bank did not disclose that no notice of  
default was sent or notified to him.  
[95] Invest Bank did not allege that it did, which would have been a misrepresentation.  
It was disclosed that the service of the proceedings against Defendant in the UAE was  
effected through the newspapers. Service of a judicial proceeding constitutes notice of  
a default, at least under Quebec law: Article 1594 C.C.Q. Sufficiency of service and  
notice go to the merits of the case.  
[96] The record shows that Tadamun and Commodore UAE were incurring losses in  
2016. As controlling shareholder, it is to be presumed at this stage that Mr. Al-Husseini  
must have been aware of the situation and his eventual involvement as guarantor.  
[97] Defendants further raise the fact that certain verbal representations made to  
Justice Courchesne are incorrect. For example, they complain that counsel used the  
present tense to describe Defendant Al-Husseini’s behavior, whereas it appears from  
the record that the impugned conduct dates back to 2017 and before:39  
“The Defendant is acting wrongfully, illicitly and taking steps to hide his assets from  
the Plaintiff.”  
[98] In French, we might use the term “monter en épingle”, or in English, that of  
“nitpicking”. The Court is not of opinion that counsel was trying to mislead the Court.  
Verbal exchanges before a judge are not to be taken out of context. They take place to  
explain the written record, composed of affidavits and exhibits, which are the foundation  
of the order issued.  
[99] It would be different if a verbal misrepresentation had been made to have the judge  
change her mind. This is not the case.  
II  
RECOVERY OF THE CLAIM IN JEOPARDY  
[100] This issue will probably be dealt with in greater detail at the interlocutory stage.  
However, since defendants raised it, a few words are in order.  
[101] It is, indeed, the Bank’s case that almost all wealth held directly and indirectly by  
Mr. Al-Husseini was transferred to ex-wife Joan and his four sons, or companies  
connected to them, between March 2017 and March 2018.  
39  
Transcript of the hearing of June 30th, 2021, Exhibit D-8, page 2.  
500-17-117370-216  
PAGE : 16  
[102] Defendants raise that the Bank cannot point to any fact which would demonstrate  
an intention of Mr. Al-Husseini to dispose of his property that would render  
unenforceable a possible judgment in its favour.40  
[103] Initially, in his contestation of the seizure before judgment, Mr. Al-Husseini filed an  
affidavit stating that he had sufficient assets to satisfy any judgment that could be  
rendered against him:  
“30. Furthermore, in paragraph 17, Plaintiff alleges that Defendant Ahmad does  
not possess enough assets lo discharge the total UAE judgment debt, that which  
is false, a simple search of various public registries would have permitted Plaintiff  
to realize that Defendant Ahmad is solvent;”  
[104] No value of his assets has been submitted.  
[105] The Bank relates a certain number of preoccupying elements as to Mr. Al-  
Husseini’s candor and as to the remaining value of his assets:  
[106] The “Divorce Agreement”41 of August 26, 2017 states that the following assets  
were purportedly transferred to Mr. Al-Husseini’s ex-wife Joan as part of the divorce:  
(a)  
A BVI company named “Cardena Finance and Holdings Ltd” which  
holds an eleven bedroom villa in Ibiza which was listed for sale in June  
2021 with an asking price of €2,850,000.42  
(b)  
(c)  
A 50% share in Canada Inc. and Quebec Inc., corporate defendants to  
the present proceedings.  
“Any real estate property [Ahmad] owns directly or indirectly in the  
United Kingdom” (it is unclear which property this refers to, as the  
transfers of the London properties had already taken place by the time  
the Divorce Agreement is said to have been signed on 26 August 2017).  
[107] On January 22, 2018, Mr. Al-Husseini and his ex-wife sold a property in Savoie for  
€1,995,000. The sale proceeds were not accounted for in Mr. Al-Husseini’s asset  
disclosure. The property was not listed in the divorce agreement between Mr. Al-  
Husseini and his ex-wife Joan. Notwithstanding this, Mr. Al-Husseini claims that the  
proceeds from the sale were paid to Joan as part of this agreement43.  
40  
41  
42  
43  
Paragraph 172 of the Application to Discharge the Mareva.  
Exhibit A-15.  
Exhibit P-193.  
Examination of Mr. Al-Husseini of 2 March 2022, page 28; documents related to the sale of the property,  
Exhibit P-194.  
500-17-117370-216  
PAGE : 17  
[108] On 22 March 2018, Mr. Al-Husseini entered into a preliminary sale contract with  
Ras Beirut Co. pursuant to which he sold properties in Beirut for $15 million. The sale  
proceeds were not accounted for in Mr. Al-Husseini’s asset disclosure.  
[109] On 3 April 2018, Mr. Al-Husseini and Joan sold an apartment at [...] for  
€1,680,000. This property, or any property in France, was not listed in the divorce  
agreement between Mr. Al-Husseini and his ex-wife Joan. The sale proceeds were not  
accounted for in Mr. Al-Husseini’s asset disclosure. During his examination, Mr. Al-  
Husseini acknowledged receiving the €1,680,000 and claimed that it had all been spent,  
but he could not remember what it had been spent on.  
[110] Mr.Al-Husseini affirmed that he owned in Lebanon: (i) shares in Medstar and  
Commodore Offshore, and (ii) 93 pieces of land in a town named Shmestar in Lebanon,  
the value of which is worth between $5 and $15 per square meter, which would give a  
value of between $441,835 and $1,325,50544.  
[111] Mr. Al-Husseini affirmed that he owned: (i) a Panama company named “Abney  
Holding SA” and (ii) Cardena. However, as set out above, Cardena was stated to have  
been transferred to Joan under the Divorce Agreement. Mr. Al-Husseini has not provided  
any documentation concerning either company nor has he provided evaluations of the  
value of such companies or their assets. Aside from the Divorce Agreement, Mr. Al-  
Husseini has provided no evidence of the transfer of title to Joan of Cardena45.  
[112] In a further sworn declaration, Mr. Al-Husseini affirmed that he owns various  
“equipment” in Abu Dhabi “through the company called Federal Development  
Establishment.” The “equipment” listed in that declaration appears to be a number of  
used vehicles. The realisation value of these assets is unknown.  
[113] Mr. Al-Husseini did not disclose an interest in either Canada Inc. or Quebec Inc.  
as part of his asset disclosure, although a declaration was filed on behalf of those  
companies confirming they held shares in the name of Mr. Al-Husseini. Mr. Al-Husseini  
claims that fifty percent of such shares were stated to have been transferred to Joan  
under the Divorce Agreement. However, aside from the Divorce Agreement, Mr. Al-  
Husseini has provided no evidence of the transfer of title to Joan of the shares of Canada  
Inc. or Quebec Inc.  
[114] Mr. Al-Husseini stated that: (i) Commodore Offshore has generated no revenue for  
the past three years, and (ii) Medstar has no assets other than some shares in  
unspecified companies, a small amount of money in a bank account and some shares  
in Commodore Offshore46.  
44  
45  
46  
Sworn declaration of Mr. Al-Husseini dated 22 July 2021 concerning Lebanese assets, Exhibit P-197.  
Sworn declaration of Mr. Al-Husseini dated 23 July 2021 concerning Lebanese assets, Exhibit P-198.  
Examination of Mr. Al-Husseini, 13 September 2021, pages 126 to 128,135 to 137.  
500-17-117370-216  
PAGE : 18  
[115] Mr. Al-Husseini also stated that he personally had no income at all in 202047.  
[116] Mr. Al-Husseini did not disclose any substantial cash or any bank accounts in his  
disclosure in the Quebec proceedings. In fact, Mr. Al-Husseini testified that the only cash  
he holds is an unknown amount of Lebanese pounds, believed to be worth less than  
£20,000, kept in the cupboard at the Medstar Building.48  
[117] His living expenses are paid by family members on the basis that he will repay  
them when he wins the case against the Bank49.  
[118] He pays his Canadian lawyers by taking cash to a bank and having it wire  
transferred directly to Canada50.  
[119] His family is “kind of” paying his legal fees. Mr. Al-Husseini also claims that the  
funds do not come from money he has given such family members:51  
[ ..]  
22 Q- I want you to answer it again, Mr. El  
Husseiny.  
23 Is your family paying all your legal  
fees?  
24 A- It’s a big family and...  
25 Q- Sorry, that didn’t come through clearly because  
Page 147  
1 of the transmission. Is it “yes” or  
“no”? Is  
2 your family paying all your legal  
fees?  
3 A- I would say kind of.  
4 Q- Okay. Kind of. Can you explain that  
answer?  
5 5 A- We assist each other as a family.  
6 Q- That doesn’t clear things up for  
me. How is  
7 it...  
8 A-That’s my answer  
. 9 Q- .. “kind of’?  
47  
48  
Examination of Mr. Al-Husseini, 7 February 2022, pages 140 and 141.  
Examination of Mr. Al-Husseini, 13 September 2021, pages 77 and 192; examination of Mr. Al-Husseini,  
7 February 2022, page 141.  
Examination of Mr. Al-Husseini, 13 September 2021, pages 81 and 82.  
Examination of Mr. Al-Husseini, 13 September 2021, pages 100 and 101.  
Examination of Mr. Al-Husseini, 7 February 2022, pages 145 to 148.  
49  
50  
51  
500-17-117370-216  
PAGE : 19  
10 A- You asked me, so my answer... I  
gave you my  
11.answer.  
[…]  
[120] Mr. Al-Husseini was a man worth tens of millions of dollars, who now claims to  
have no income and no bank account, and to have his family pay for his food and  
cigarettes.  
[121] All the while, he retains lawyers in Canada, the United Kingdom, the United States  
of America and the UAE.  
[122] His claims and evasive answers cannot dispel the reasonable fear of the Bank that  
realization of its claims could be in jeopardy.  
III  
INCREASE OF THE AMOUNT OF SECURITY  
[123] On August 17, 2021, Defendant filed an Application for security for costs pursuant  
to Article 492 C.C.P., asking for a suretyship of $ 122,500, after having detailed  
estimated amounts of disbursements necessary to defend against the Bank’s claim.  
[124] This Application was not contested and the amount requested was posted as  
security, following a judgment rendered by a Special Clerk of the Court on September  
8th, 2021.  
[125] During oral argument, Defendants’ counsel asked the Court to order that, failing a  
discharge of the Mareva Order, the amount of security be increased to $500 000.  
[126] As noted above, the award of security, or the imposition thereof is routinely granted  
in Mareva injunctions to guarantee against the damages that it may cause. At least is  
there an undertaking as to damages in many cases.  
[127] In Quebec, as was duly noted by Justice Pinsonnault in Moushaghayan, the  
posting of security to obtain an interlocutory injunction was the rule prior to 2016, as per  
the wording of article 755 Old C.C.P.:  
755. Unless, for good reason, the court or the judge granting an interlocutory injunction  
decides otherwise, the applicant must be ordered to give security, in a prescribed amount,  
to pay the costs and damages which may result therefrom.  
[128] A dispensation had to be motivated52.  
52  
Mont-Royal (ville) v. Hrtschan, REJB 2000-20978 (C.A.), par. 21. Danielle FERRON, Mathieu PICHÉ  
MESSIER, Lawrence A. POITRAS, L'injonction et les ordonnances Anton Piller, Mareva et Norwich,  
Montréal, LexisNexis Canada inc., 2009, page 87.  
500-17-117370-216  
PAGE : 20  
[129] The rule has changed, as explained in his Commentaires, by the Minister of  
Justice:  
“À cet égard, l'article reprend le droit antérieur, mais il le modifie en laissant une plus  
grande marge d'appréciation au tribunal quant à l'opportunité d'assujettir la délivrance de  
l'injonction au paiement d'un cautionnement qu'il fixe pour compenser les frais et le  
préjudice qui peut en résulter. »  
[130] As appears from these commentaries, damages caused by the issuance of the  
injunction are the preoccupation at issue.  
[131] Factors to be taken into consideration when ordering or dispensing with security  
include the following:  
1) Potential for the defendant to suffer substantial damages.  
2) Likelihood of the plaintiff being in a financial position to perform under the undertaking  
as to damages.  
3) Value of the property involved.  
4) Probable lead time to trial. 53  
[132] As stated above, Defendant did request the posting of security, which the Bank did  
not oppose.  
[133] The Order granted by the Court, as renewed, allows Defendant to spend certain  
amounts of money, to dispose of his assets in the ordinary course of business, and to  
apply to vary these conditions54.  
[134] Defendant has not established that he was suffering any inconvenience in the  
conduct of his business, if indeed, he still has any.  
[135] The Application for Security for Costs outlined what Defendant considered to be  
the costs of conducting his defense. He has not submitted any evidence that the  
amounts in question had been spent and that he needed additional amounts.  
[136] Defendant’s Application specifically alleged, at paragraph 4, that “Plaintiff was  
reportedly in financial distress”. This allegation has been dealt with above.  
[137] There are no new circumstances in that respect, since the granting of the  
Application for security.  
[138] Defendant has reported the assets he still controls but has not established in what  
respect the value of the assets impacts the amount of security required.  
53  
54  
Crerar, David A., Mareva and Anton Piller Preservation Orders in Canada, A Practical Guide, Toronto,  
Irwin Law, 2017, page 132.  
Paragraphs 13 to 15 of the Order.  
500-17-117370-216  
PAGE : 21  
[139] As far as a trial date is concerned, the undersigned senses that it is still very remote  
but that Defendant is multiplying certain procedural hurdles that would preclude him from  
raising being deprived of a speedy trial.  
[140] While Defendant has the right to apply for a variation of the amount posted as  
security, the Court does not find that he has established a modification of the situation  
since his Application was granted that would warrant such modification.  
CONCLUSION  
[141] The Court concludes that Defendant Al-Husseini has not established sufficient  
grounds to discharge the Mareva Order granted by Justice Courchesne, as renewed,  
nor for increasing the amount of security already posted in the record.  
FOR THESE REASONS, THE COURT:  
[142] DISMISSES Defendants’ Application to Discharge the Mareva Order;  
[143] RENEWS the Order dated March 10, 2022, as renewed on March 30, 2022 until  
judgment is rendered on the Application for interlocutory injunction or otherwise ordered.  
[144] REFUSES Defendants’ verbal application for an increase in the amount of security  
for costs;  
[145] THE WHOLE, with costs to follow suit.  
__________________________________  
SYLVAIN LUSSIER, J.S.C.  
Me Cara Cameron  
Me Jessica Major  
Mr. Arnaud Hostie, stagiaire  
DAVIES WARD PHILIPS & VINEBERG  
Attorneys for Plaintiffs  
Mtre Tetiana Gerych  
Me Julie Bouret  
Me Carol Kljajo  
Me Messica Bari  
GATTUSO BOUCHARD MAZZONE  
Attorneys for Defendants  
Hearing dates:  
29 and 30th of March 2022  


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