Executive Summary: Key Legal and Evidentiary Issues

• The application was brought by the defendant to postpone a scheduled examination for discovery until at least March 15, 2026.

• The plaintiff, Benuva Stiftung, claims the defendants owe approximately $20 million in relation to moneys advanced, and had adjourned a summary judgment application because an examination for discovery of the defendant was required, intending to proceed summarily with that information.

• The defendant’s assets were frozen under a Mareva injunction, and after negotiations the parties agreed that $60,000 would be advanced from the frozen assets to the defendant’s solicitors in exchange for the defendant’s attendance at an examination for discovery on October 28, 2025.

• Following the release of funds on or about October 14, 2025, medical notes from Dr. Barnett dated October 14 and November 3, 2025 recommended postponing the discovery for approximately three to four months due to depression, anxiety, trauma-related symptoms including suicidal ideation and memory impairment, and proposed a future virtual discovery with frequent breaks in a controlled and supportive environment.

• The court, referring to Wei v. Chiu, reviewed the excuse for non-attendance in the context of the history of attempts to set discovery, inferred from all the evidence that Mr. Abadian simply did not wish to attend an examination for discovery, and noted he had participated in other court proceedings since his initial 2019 diagnosis of mental-health issues.

• The court dismissed the request to postpone discovery into February or March 2026, ordered that Mr. Abadian attend an in-person examination for discovery no later than January 30, 2026 with 10 available dates between January 12 and January 30, 2026, limited his ability to demand breaks, and awarded costs of the application to the plaintiff in any event of the cause, not payable forthwith.

Facts of the case

This application arises in an action commenced in December 2022 in the Supreme Court of British Columbia. The plaintiff is Benuva Stiftung, who is also defendant by way of counterclaim. The defendants are Sean Abadian, also known as Ehsan Abadian, and Sea Investments Ltd., who are also plaintiffs by way of counterclaim, and Amir Abadian, who is a defendant. The plaintiff claims that the defendants owe approximately $20 million with respect to moneys advanced. The defendant’s assets have been frozen as a result of a Mareva injunction.

Procedural background and discovery dispute

The plaintiff had brought a summary judgment application, which was adjourned on the basis that an examination for discovery of the defendant was necessary. The court was advised that no trial date had been set because the plaintiff intended to proceed summarily with information obtained from the examination for discovery of the defendant. Negotiations took place between the parties regarding access to frozen assets. The defendant requested a $200,000 advance from the frozen assets to fund ongoing litigation. It was ultimately agreed that $60,000 would be advanced to the solicitors for the defendant, and everyone agreed that the defendant would attend for an examination for discovery on October 28, 2025. The issue of the advance had been proposed as far back as April 2025. It was apparent that counsel for the defendant was engaged in a lengthy trial and would not be available until some time in the fall. The funds were released to counsel for the defendant on or about October 14, 2025.

Medical evidence and request for adjournment

On October 17, defence counsel wrote to advise that the defendant would be unable to attend the October 28 examination for discovery as a result of a medical opinion and initially refused to release that opinion. The medical opinion from Dr. Barnett, dated October 14, 2025, stated that for medical reasons she had advised her patient, Ehsan Abadian, to delay or postpone the court discovery planned for the end of the month for at least three to four months, and that it would adversely affect his health if it proceeded at that time. Plaintiff’s counsel then sought to set another discovery date and provided an appointment to examine on December 1, 2025. Defence counsel indicated that an application to adjourn the discovery would be filed, and that application was ultimately filed returnable December 3, after the appointed discovery date. A further report from Dr. Barnett dated November 3, 2025, stated that Mr. Abadian has depression and anxiety accompanied by trauma-related symptoms, including suicidal ideation and memory impairment. She expressed the opinion that participating in a court discovery at that time would expose him to a highly stressful and potentially hostile environment that would significantly exacerbate his mental-health conditions and place him at risk of self-harm. She strongly recommended that the upcoming discovery be postponed for approximately three to four months to allow him to continue therapy, medical care, and supportive rehabilitation, after which his condition could be reassessed to determine his ability to participate safely. She also advised that any future discovery be conducted virtually, with frequent breaks and, if necessary, divided into multiple shorter sessions, and that it take place in a controlled and supportive environment such as his home. In an October 17, 2025 letter, defence counsel had proposed that the examination be set for the week of January 26, 2025, while indicating that the physician had recommended a delay of three to four months.

Court’s assessment of the application

The court noted that the facts leading up to the application were somewhat in dispute, with the plaintiff arguing it had been seeking examination for discovery dates without agreement from the defendant, and the defendant arguing that he had been agreeable but unable to attend due to medical issues. The court referred to Wei v. Chiu, where it was stated that any excuse for non-attendance must be examined in the context of the history of steps taken to examine for discovery, and that stress itself is unlikely to provide lawful excuse, with the standard being that it is medically impossible to attend or that the party is physically incapable of attending. The court clarified that these passages do not preclude excuses related to mental health and accepted that if a party’s mental health would be affected to such a degree as to create harm, that is a significant factor. However, in assessing the overall context, the court observed that any dates set between counsel seemed likely to be subject to cancellation by the defendant on health grounds, particularly because Dr. Barnett’s November 3 letter contemplated reassessment even after a three to four month delay. The court drew the inference from all the evidence that Mr. Abadian simply did not wish to attend an examination for discovery and found it too coincidental that the advance was made to counsel in exchange for an agreement to the examination, and that once the money was paid the issue of medical disability arose. The court was also cognizant that Mr. Abadian had participated in other court proceedings since his initial diagnosis in 2019 of mental-health issues. The court concluded that there would be prejudice to the plaintiff if the examination for discovery were put off on an indefinite basis and remarked that what had occurred added to the expense and the criticism that cases take far too long to complete and result in unnecessary applications.

Outcome and costs

The court considered proposals put forward by the plaintiff, including that Mr. Abadian attend for examination for discovery no later than January 30, 2026, that he provide ten available dates between January 12 and January 30, 2026, that he not take steps in the proceeding until he submits to examination for discovery, that failure to attend should result in striking his and the corporate defendants’ defence and counterclaim, and that he attend in person. The court commented favourably on these proposals but stated it was not in a position at that stage to rule on the consequences of any failure to attend. The orders actually made were that Mr. Abadian attend for an examination for discovery no later than January 30, 2026, that he provide forthwith ten dates on which he is available for discovery between January 12 and January 30, 2026, and that he attend his examination for discovery in person and is not permitted to demand frequent breaks other than in the ordinary course. On costs, the court found it unreasonable that the plaintiff had had to resort to the extent that it had to secure discovery. The court held that the plaintiff had a right to examine the opposing party for discovery and had been “roadblocked” unreasonably. Accordingly, the court ordered that costs be payable to the plaintiff in any event of the cause, and that they need not be paid forthwith. No damages or specific monetary awards on the underlying claim were determined in this decision.