Executive Summary: Key Legal and Evidentiary Issues

• Ontario courts had already declared the Hong Kong arbitration clause between the class members and Binance unconscionable, contrary to public policy, and void, rendering it unenforceable in Ontario proceedings.
• Despite these rulings and a prior anti-suit injunction, Binance (via Nest) attempted to continue pursuing Hong Kong arbitrations and to obtain an anti-anti-suit injunction (AASI) to neutralize the Ontario class action.
• The court treated Nest as the alter ego of the Binance defendants, holding that Nest’s steps in Hong Kong were, in substance, steps taken by the defendants themselves to evade Ontario orders.
• The central issue on this motion was whether service of Hong Kong AASI proceedings on the plaintiffs, as a step toward resuming arbitrations, would breach the existing Ontario anti-suit injunction.
• Justice Morgan held that pursuing an AASI in Hong Kong is effectively the same as pursuing the enjoined arbitrations, and therefore any steps toward that objective (including service) are prohibited.
• The court reiterated and strengthened its disapproval of the defendants’ and Nest’s tactics to circumvent Ontario and Canadian appellate rulings, warning that maneuvers to skirt the injunction could attract serious sanctions.

Background of the dispute and class action

This litigation arises from a proposed class action brought in Ontario by representative plaintiffs Christopher Lochan and Jeremy Leeder against Binance entities, including Binance Holdings Limited, Binance Canada Capital Markets Inc., and Binance Canada Holdings Ltd. The dispute centres on Binance’s operations and its contractual terms with Canadian users, in particular an arbitration clause requiring disputes to be arbitrated in Hong Kong. In earlier proceedings, the defendants moved to stay the Ontario action in favour of arbitration, arguing that the disputes should be resolved in Hong Kong under this clause. The Ontario Superior Court rejected that position, finding the arbitration agreement unconscionable, contrary to public policy, and void. That ruling was upheld by the Court of Appeal, and leave to appeal to the Supreme Court of Canada was denied. The class action was certified, and the Ontario courts confirmed that the plaintiffs could pursue their claims in Ontario courts rather than being forced into Hong Kong arbitration.

Role of Nest and the Hong Kong arbitrations

After losing at first instance, on appeal, and at the leave stage in Canada, the defendants sought to achieve the same result through a different route. Acting “in the guise of” Nest Services Limited, a Seychelles corporation, they initiated arbitration proceedings in Hong Kong against the two representative plaintiffs. Nest’s role was not treated as truly independent: in previous reasons, Justice Morgan had already found that Nest was an “alter ego” of the Binance defendants and that Nest’s acts were, for practical purposes, the defendants’ own acts. Using Nest, the defendants attempted to relitigate, in substance, the enforceability of the arbitration route and to draw the representative plaintiffs into Hong Kong arbitrations, despite the clear Ontario rulings voiding the arbitration clause and refusing a stay in favour of arbitration.

Prior anti-suit injunction and its scope

In response to these steps, the plaintiffs sought and obtained an anti-suit injunction in Ontario. Justice Morgan issued an order restraining Nest, the Binance defendants, and any related entities or persons from pursuing Hong Kong arbitrations against the plaintiffs. The injunction was broad: it applied not only to the defendants themselves but also to any alter ego or related entity, which included Nest, thereby closing off the use of a foreign affiliate to sidestep the Canadian decisions. That anti-suit injunction order was later followed by a costs endorsement, in which the court expressly stated that the tactics used by the defendants and Nest to circumvent prior rulings “are to be discouraged,” signalling judicial concern about their litigation strategy.

Nest’s attempt to obtain an anti-anti-suit injunction (AASI)

Undeterred, Nest turned back to the Hong Kong courts and attempted to secure an anti-anti-suit injunction (AASI). The AASI was designed to neutralize the Ontario anti-suit injunction and to pave the way for the Hong Kong arbitrations to continue. Nest sought, on an ex parte basis, permission from a Hong Kong court for alternative service on the plaintiffs, which would allow Nest to move its AASI application forward. This effort failed: the Hong Kong High Court refused to grant the ex parte order for alternative service, and the AASI could not advance as Nest had hoped. Nest then faced a dilemma: the next procedural step in Hong Kong would require serving the plaintiffs in accordance with the Hague Service Convention. But doing so risked violating the Ontario anti-suit injunction, which expressly barred any further steps to pursue Hong Kong arbitrations against the plaintiffs.

Motion for directions before the Ontario court

In 2026 ONSC 570, Nest and the Binance defendants returned to the Ontario Superior Court seeking “Directions” on how, if at all, they could proceed in Hong Kong. Formally, Nest sought to intervene as a party for the purpose of this motion, but Justice Morgan held that a formal intervention was unnecessary. Because Nest had already been found to be the alter ego of the defendants, it was treated as interchangeable with them, both in terms of making submissions and in being bound by court orders. The defendants’ Hong Kong solicitor filed an affidavit making the defendants’ intentions clear: they wished to obtain an AASI in Hong Kong so that the two arbitrations already commenced there could “resume” against the representative plaintiffs, both of whom are based in Canada. The affidavit also acknowledged that the defendants’ strategy was driven, at least in part, by timing. They expected the appeal of the anti-suit injunction to the Ontario Court of Appeal would not be heard until late 2026 and wished to move quickly in Hong Kong so that the arbitrations would be well advanced—or even concluded—before the appellate court could deal with the anti-suit order, thereby risking rendering that appeal effectively moot. Against this backdrop, Nest expressed concern that serving the AASI motion on the plaintiffs, as required under the Hague Service Convention, might constitute a breach of the anti-suit injunction.

Court’s analysis of the requested directions

Justice Morgan emphasized that Ontario courts are not in the business of providing anticipatory legal advice to parties contemplating whether to breach a court order. The anti-suit injunction that had already been issued was explicit: the defendants, Nest, and related parties were barred from pursuing Hong Kong arbitrations against the plaintiffs. In substance, the court saw the AASI as indistinguishable from the prohibited arbitrations themselves. Pursuing an AASI whose “purpose” was to allow the very arbitrations that had been enjoined to “resume” was, in the court’s view, simply another way of seeking to advance the enjoined proceedings. On that basis, the court held that taking steps towards the AASI—including service of the Hong Kong AASI proceedings on the plaintiffs—fell squarely within the scope of the existing anti-suit injunction. The judge noted that Nest’s own evidence confirmed that the AASI was meant to enable continuation of the Hong Kong arbitrations, underscoring that the requested directions were not about some collateral matter but about advancing the same arbitrations Ontario had already barred.

Reinforcement of the injunction and outcome for the parties

In disposing of the motion, Justice Morgan gave a direct and unequivocal answer to the question posed. The Defendants and Nest had asked whether they could take further steps in Hong Kong, specifically service of the AASI proceedings, without violating the Ontario injunction. The court held that they could not. Pursuit of the AASI was treated as pursuit of the enjoined arbitrations, and therefore any step that advanced that objective would breach the injunction. The court reiterated, in stronger language than before, that the tactics of the defendants and Nest to circumvent Ontario and Canadian appellate rulings “are to be discouraged” and expressly ordered that the defendants, Nest, and any other entity or person acting on their behalf “shall not seek, pursue, or take any steps that advance the goal of pursuing arbitrations against the Plaintiffs.” On this motion, the plaintiffs were the successful party, as the court refused to permit any softening or workaround of the anti-suit injunction. The decision did not set or quantify any damages or costs; instead, Justice Morgan invited written submissions on costs from both sides and deferred any monetary determination. As a result, while the plaintiffs prevailed, the total amount of any monetary award, including costs or damages in their favour, cannot be determined from this decision alone.