Law360 Canada (June 20, 2024, 4:33 PM EDT) -- Appeal by appellants from Designated Judge’s interlocutory orders on grounds that Designated Judge erred in concluding that a nominally privileged proffer could be subject of Canada Evidence Act (“CEA”), section 38 application. The appellants commenced an action against Al Jabri and others seeking over $5 billion in damages. It was alleged in the pleadings before the Ontario Superior Court of Justice (“OSCJ”) that the appellants were corporations created to pursue commercial and counterterrorism activities for the Kingdom of Saudi Arabia, and that former Saudi official Al Jabri orchestrated an international fraud scheme, which he denied. Al Jabri claimed some information he would rely on to defend against the fraud allegations was sensitive under s. 38 of the CEA. This information was in a proffer document over which Al Jabri asserted litigation privilege, and 17 supporting documents. The appellants challenged whether the proffer could be subject to a s. 38 application. Their motion was heard and dismissed. The Designated Judge accepted Al Jabri's explanation that the proffer had been drafted to provide all the information that was likely to be otherwise disclosed in the course of the fraud action, to avoid a series of notices and applications....