Bouzari et al. v. Bahremani, aka Rafsanjani, et al.
[Indexed as: Bouzari v. Bahremani]
Ontario Reports
Court of Appeal for Ontario,
Juriansz, Rouleau and van Rensburg JJ.A.
April 21, 2015
126 O.R. (3d) 223 | 2015 ONCA 275
Case Summary
Conflict of laws — Forum conveniens — Plaintiff suing defendant in Ontario for damages arising from his alleged abduction and torture by defendant in Iran — Motion judge erring in dismissing defendant's motion to stay proceedings on basis of forum non conveniens — Defendant having been denied entry to Canada to participate in proceedings — Both parties having some connection to England while defendant having no connection to Ontario — Most witnesses residing outside Ontario — Defendant having consented to action proceeding in England — England the more appropriate forum.
The plaintiff was a former Iranian national who was now a Canadian citizen and resident of Ontario. He brought an action in Ontario against the defendant, an Iranian national, for damages arising from his alleged abduction, incarceration and torture by the defendant in Iran. The defendant brought a motion to stay the proceedings on the basis of forum non conveniens, submitting that England was the more appropriate forum. The motion was dismissed. The defendant appealed.
Held, the appeal should be allowed.
The motion judge made certain errors of fact which informed the exercise of her discretion. She concluded that there was no evidence that the defendant would be denied entry to Canada to defend the action. As the defendant had twice been denied visas to enter Canada to participate in the proceedings, it was reasonable to believe that his future attempts to enter the country would be unsuccessful. The motion judge also concluded, without evidence, that deferring to an English court might deprive the plaintiffs of certain rights.
The only factor that connected the action to Ontario was that the plaintiff resided here. The defendant had no connection whatsoever to Ontario. Both parties had some connection to England. The plaintiff had lived there for three years, still had property there, operated a business there and traveled there often. The defendant was resident in England before returning to Iran to take part in legal proceedings there. He had held a series of visas permitting him to enter England. With one exception, all the witnesses, except the plaintiff, resided outside of Canada. Most were in Iran or Europe. England was the more appropriate forum. [page224]
Cases referred to
Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.); Bouzari v. Iran (Islamic Republic) (2004), 2004 871 (ON CA), 71 O.R. (3d) 675, [2004] O.J. No. 2800, 243 D.L.R. (4th) 406, 220 O.A.C. 1, 122 C.R.R. (2d) 26, 132 A.C.W.S. (3d) 275 (C.A.), affg [2002] O.J. No. 1624, [2002] O.T.C. 297, 114 A.C.W.S. (3d) 57 (S.C.J.) [Leave to appeal to S.C.C. refused [2004] S.C.C.A. No. 410]; Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 291 O.A.C. 201, 2012EXP-1452, J.E. 2012-788, EYB 2012-205198, 429 N.R. 217, 343 D.L.R. (4th) 577, 91 C.C.L.T. (3d) 1, 10 R.F.L. (7th) 1, 17 C.P.C. (7th) 223, 212 A.C.W.S. (3d) 712; Prince v. ACE Aviation Holdings Inc. (2014), 120 O.R. (3d) 140, [2014] O.J. No. 1792, 2014 ONCA 285, 319 O.A.C. 163, 373 D.L.R. (4th) 109, 55 C.P.C. (7th) 75, 239 A.C.W.S. (3d) 629
Statutes referred to
Family Law Act, R.S.O. 1990, c. F.3 [as am.]
State Immunity Act, R.S.C. 1985, c. S-18, s. 3
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 17.02(h)
APPEAL from the order of Pollak J., [2013] O.J. No. 5690, 2013 ONSC 6337 (S.C.J.) dismissing a motion to stay proceedings.
No one appearing for appellant.
Mark H. Arnold, for respondents.
BY THE COURT: --
A. Introduction
[1] This is an appeal of an order dismissing a motion to stay proceedings commenced in Ontario on the basis of forum non conveniens. For the reasons that follow, the appeal is allowed.
[2] The respondents are Houshang Bouzari, his wife and children. Bouzari is a former Iranian national who is now a Canadian citizen and resident of Ontario. He alleges that in 1993, the appellant Mehdi Hashemi Bahremani (also known as Rafsanjani, and referred to in these proceedings as Hashemi) and his co-defendants compelled Bouzari's abduction, incarceration and torture in Iran. The action underlying this appeal is the respondents' second attempt to sue for Bouzari's torture in Iran.[^1] [page225]
[3] In 2005, the respondents commenced these proceedings against Hashemi and others in the Superior Court. The action was not defended, and on August 26, 2011, the respondents obtained default judgment against Hashemi. In granting default judgment, Low J. noted that the Superior Court took jurisdiction as a forum of necessity because there was no reasonable basis upon which the plaintiffs could be required to commence the action in a foreign jurisdiction, particularly Iran, the state where the torture took place: Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.).
[4] Hashemi brought a motion to set aside the default judgment, which was originally opposed by Bouzari. On June 25, 2013, the motion was granted on consent, with terms permitting Hashemi to move to challenge the forum.
[5] The parties agreed it was impossible to litigate the dispute in Iran. However, Hashemi -- a citizen of Iran, with no connection to Canada, who had been living and studying in England -- asserted that the Ontario action should be stayed in favour of Bouzari and his family commencing proceedings in England. By the time the forum non conveniens motion was argued, however, Hashemi had voluntarily returned to Iran to face prosecution, and was unable to leave that country.
[6] In our view, the motion judge made certain errors of fact which informed the exercise of her discretion. In particular, she concluded that there was "no evidence" that Hashemi would be denied entry to Canada to defend the litigation, when all of his previous efforts, including in the course of the motion, had been unsuccessful. She also concluded, without evidence, that deferring to an English court may deprive the respondents of certain rights. After considering all of the relevant factors, we arrive at a different conclusion: that the appellant has met the burden of establishing that England is a more appropriate forum for the litigation, and that the Ontario proceedings must be stayed in favour of litigation in the alternative court.
B. Relevant Facts
(1) The action
[7] For the purpose of this appeal, it is unnecessary to set out in detail the respondents' claims in the Ontario proceedings. It is sufficient to note that the action alleges that, between 1992 and his escape from Iran in July 1994, Bouzari was the victim of extraordinary acts of violence and torture as a result of his refusal to pay a bribe in his commercial dealings regarding Iran's South Pars gas field. The respondents allege that Hashemi and [page226] the other defendants were involved in requesting the bribe and Bouzari's subsequent arrest and torture.
[8] After escaping Iran, Bouzari lived briefly in Vienna, and then in Italy. In 1995, he settled with his family in England, where they lived for three years before immigrating to Canada in 1998. All of the events that the respondents claim constitute kidnapping, false imprisonment, assault, torture and death threats are alleged to have taken place in Rome, Italy and Tehran, Iran.
[9] In addition to Bouzari's above-mentioned claims, his wife and children assert claims under the Family Law Act, R.S.O. 1990, c. F.3. The statement of claim was served outside Ontario, pursuant to rule 17.02(h) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194], on the basis that each respondent has sustained and continues to sustain damages in Ontario.
(2) The appellant
[10] Hashemi is the son of one of Iran's former presidents. When the action was commenced in 2005, he was living in Iran. The statement of claim was sent to what was believed to be his business address, as well as other locations. Service was validated by the order of Master Clark on May 9, 2006, and the defendants were noted in default at that time.
[11] In his March 2012 and August 2012 affidavits supporting his motion to set aside default judgment, Hashemi deposed that in August 2005 -- shortly after Iran's 2005 presidential elections in which the incumbent, President Ahmadinejad, defeated his father -- he became the head of the Office of the Board of Trustees of Islamic Azad University in Tehran. Leading up to the 2009 presidential election that re-elected President Ahmadinejad, Hashemi supported the opposition. He also supported the protesters who demonstrated against the result. Due to mounting political pressure, Hashemi left Iran in August 2009. When Hashemi brought his motion to set aside the default judgment, he was living in England on a temporary visa, and feared arrest and incarceration should he return to Iran.
[12] In October 2010, Hashemi became a graduate student at the University of Oxford and a member of Wolfson College. Hashemi claims that he only became aware of the Ontario proceedings in November 2011, after a copy of the statement of claim and related materials were deposited with Wolfson College, and the media asked for his comment on the default judgment.
[13] Hashemi then retained counsel in Ontario to set aside the default judgment. He denies any involvement in the events forming the basis of the respondents' action. He asserts his [page227] intention to defend himself against the claims in the appropriate jurisdiction.
[14] During his stay in England, Hashemi also worked at a local branch of Azad University. According to his August 2012 cross-examination (which took place in England), this employment ended in May 2012. Hashemi also deposed that his English residence permit was to expire on June 16, 2013.
[15] In August 2013, Hashemi filed a further affidavit, this one in support of his forum non conveniens motion. By that time he was living in Iran, where he had returned voluntarily on September 23, 2012 to clear his name. Upon his return to Iran, Hashemi was incarcerated for 84 days and prohibited from leaving Iran until the charges against him were finalized and tried. He estimated that the matter would go to trial by the end of 2013. In the interim, he suspended his studies in Oxford. Hashemi has a son who was living in England.
[16] Hashemi claimed that he has no connection with Canada. In 1993, he attempted to enter Canada with a visa, but was denied entry. On May 9, 2012, upon being ordered to do so by Master Graham, Hashemi attended the Canadian High Commission in England to apply for a visa to visit Canada to attend his cross-examination on the affidavits filed in support of his motion to set aside default judgment. His application was denied. Under cross-examination via Skype from Iran, Hashemi explained that his Canadian visa application had been denied because his English visa was limited to one year and he could not return to Iran for political reasons. Hashemi filed an affidavit from the solicitor who attended with him at the High Commission verifying the documentation he submitted.
[17] On June 15, 2012, Hashemi made a subsequent application for a Canadian visa, to which he has received no response. The respondents' counsel also wrote to the Minister of Citizenship and Immigration requesting that a short-term special ministerial visa/permit be granted to Hashemi for the purposes of the action; however, that did not result in any visa being issued.
(3) The respondents
[18] The respondents are Canadian citizens, residents and property owners. They lived in England for three years before immigrating to Canada in 1998. Bouzari and his wife have business interests in England, own property there and travel there from time to time. [page228]
C. Decision on the Motion
[19] As already noted, the matter proceeded before the motion judge as a forum non conveniens motion. The parties agreed that the litigation could not proceed in the natural forum for the litigation of the dispute, Iran, and that the issue was whether England provided a more appropriate forum than Ontario.
[20] The motion judge referred to the authority of Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, noting that the onus is on the party asking for a stay to show that the alternative forum is clearly more appropriate.
[21] The motion judge identified the non-exhaustive list of relevant factors identified in Van Breda, at para. 105: (a) the comparative convenience and expense for the parties to the proceeding and for their witnesses, in litigating in the court or in any alternative forum; (b) the law to be applied to issues in the proceeding; (c) the desirability of avoiding a multiplicity of legal proceedings; (d) the desirability of avoiding conflicting decisions in different courts; (e) the enforcement of an eventual judgment; and (f) the fair and efficient working of the Canadian legal system as a whole .
[22] In support of his submission that England was a more appropriate forum, Hashemi advanced four main arguments. First, he asserted that he was resident in England and had only returned to Iran temporarily to clear his name in legal proceedings. Second, he contended that he would have no difficulty re-entering England, which had issued him temporary visas in the past, and that he would continue to be unable to enter Canada. Third, he emphasized Bouzari's nexus with England: Bouzari continued to have business and other connections in England and travelled there frequently. Fourth, he asserted that there were procedural advantages to his defence should the litigation take place in England. In support of this position, Hashemi submitted the opinion of an English barrister describing the available procedures for litigation in England, including those that would be available if Hashemi were unable to be present in person.
[23] In response, Bouzari and his family made four main submissions. First, they relied on evidence that Hashemi had voluntarily returned to Iran and the absence of evidence as to when he would be able to leave Iran or whether he would be able to return to England. Second, they noted that the English barrister's opinion, which dealt with alternatives to attending and testifying in person, anticipated that Hashemi would be unable to attend in England should his motion be granted. Third, Bouzari [page229] and his family asserted that any procedural advantages to Hashemi in litigating in England were outweighed by juridical disadvantages to the plaintiffs. Fourth, they claimed that if they were required to litigate in England, they would be deprived of their Toronto counsel and forced to retain English counsel at significant additional expense.
[24] The motion judge noted that Hashemi's submissions on the importance of his ability to properly conduct his defence would have been persuasive if supported by evidence. However, in the absence of evidence on Canada's and England's immigration laws, she refused to accept Hashemi's prior experiences of being denied admission to Canada and granted admission to England as evidence that Canada would deny him entry to defend himself, or that England would grant him entry for this purpose.
[25] The motion judge found the evidence inconclusive regarding Hashemi's ability to physically attend court in Ontario and England. Since she could not conclude that Hashemi would be unable to properly defend himself if the action remained in Ontario, she found that Hashemi had failed to meet the onus of providing the necessary evidence on what she described as an "important point".
[26] The motion judge considered the evidence respecting the location of proposed witnesses. She concluded that, while the evidence supported the conclusion that deferring to an English court might be helpful to such witnesses, it might deprive the plaintiffs of certain rights. In this regard, she referred to the fact that the plaintiffs rely on Ontario and Canadian law, including international covenants ratified by the Government of Canada, while Hashemi had provided no evidence that international covenants relied on by the plaintiffs had been adopted under English law.
[27] Ultimately, the motion judge concluded that Hashemi had not met his burden of proving England was clearly a more appropriate forum than Ontario.
D. Developments During the Appeal to this Court
[28] At the time the order under appeal was made, Hashemi was represented by Ontario legal counsel. He had delivered affidavits and an expert report, and attended cross-examinations via Skype. His participation in the proceedings changed, however, after his appeal to this court had been perfected.
[29] The respondents brought a motion for security for costs and for an order for the unpaid costs that had been awarded by [page230] the court below. Justice Juriansz, in an endorsement dated June 17, 2014, described what had transpired:
The respondents' motion came before the court on March 28 2014. Counsel for [Hashemi] filed an affidavit from his Iranian lawyer stating that if he provided substantive instructions to his Ontario counsel regarding the motion or the appeal, his bail could be revoked and he could be returned to prison. The affidavit claims that prosecuting authorities in Iran have interpreted certain audio recordings, purportedly of [Hashemi], as statements against national security. It suggests that these same audio recordings were potential evidence in the Ontario action, and that Mr. Bouzari was involved in releasing them. Therefore, Iranian prosecutors might construe participation in the Ontario action as an attempt to interfere with evidence or witnesses involved in [Hashemi's] prosecution, contrary to Iran's Criminal Code of Procedure. On this basis, Hoy A.C.J.O. adjourned the motion until May 28, 2014 and vacated the pending appeal date of June 18, 2014.
[30] Justice Juriansz made an order removing counsel for Hashemi from the record because of their inability to obtain instructions. The unopposed motion for security for costs proceeded, but the relief sought was refused.
[31] On June 30, 2014, Hashemi's Iranian counsel swore an affidavit confirming the continuation of the existing barriers and stating that Hashemi had authorized him to receive all letters or documents addressed to Hashemi, which he would provide to his client only with permission from Iran's public prosecutor's office. On July 11, 2014, Hashemi delivered a notice of intention to act in person in this court, with his Iranian counsel's contact information as his address for service.
[32] On July 28, 2014, Juriansz J.A. refused to revisit his earlier decision denying security for costs, and ordered that a new date be obtained for the hearing of the appeal. That date was fixed for October 23, 2014.
[33] In an affidavit sworn October 12, 2014, Hashemi's Iranian lawyer confirmed that the existing barriers on Hashemi remained in place, and that without permission from Iran's public prosecutor's office, he could communicate with any foreign lawyer with respect to the litigation. The affidavit indicated that communications respecting the matter would have to continue to occur through the Iranian lawyer. The affidavit also stated that the lawyer was "informed" that a "U.K. visa has been issued for Mr. Hashemi, which enables him to defend himself in England, in case his appeal for change of forum will be successful", and that the follow-ups on his Canadian visa, requested for a second time in June 2012, remained unanswered.
[34] Hashemi did not attend, nor was he represented by counsel at, the hearing of this appeal. [page231]
E. Issue on Appeal
[35] Prior to the hearing of this appeal, the panel contacted the parties to invite argument on the question of whether Ontario has jurisdiction simpliciter. Although we heard argument from counsel for the respondent on this issue, it is unnecessary and inappropriate in our view to address the question of whether jurisdiction simpliciter was properly assumed in this case. In our view, the contours of the nascent jurisprudence regarding "forum of necessity" would best be decided in a case in which jurisdiction simpliciter on this basis has been directly raised and argued by the parties.
[36] In the present case, the appellant's challenge to the jurisdiction of the Superior Court of Ontario was limited. In his motion to set aside the default judgment, Hashemi made no objection to the jurisdiction simpliciter of the Superior Court. His sole objection was that Ontario was not the forum conveniens. The motion judge's decision deals only with that issue. The appellant's factum argues that the motion judge erred, and that England, and not Ontario, is the forum conveniens for the action.
[37] Accordingly, the issue in this appeal is whether the motion judge erred in her determination with respect to forum non conveniens.
F. Analysis
[38] The motion judge's conclusion that Hashemi had not met the burden of proving that England was clearly the more appropriate forum is discretionary. The decision is worthy of deference, absent an error of law or a clear and serious error in the determination of the relevant facts: Van Breda, at para. 112.
[39] In our view, the motion judge made two significant errors in the determination of the relevant facts. The first was in relation to Hashemi's relative ability to travel to England and to Canada to defend proceedings.
[40] Hashemi's efforts, with the assistance of U.K. counsel, to obtain a temporary visa to enter Canada for the purpose of defending this action, as well as efforts by the respondents' counsel to obtain a short-term special ministerial visa or permit, were unsuccessful.
[41] The motion judge observed that Hashemi's submissions on the importance of his ability to properly conduct his defence would be persuasive if they could be supported by the evidence. She noted his assertion that, while he may be able to attend in the English court in the future, he could not attend in the Ontario court. She then stated [at para. 22]: [page232]
In my view, the evidence does not support these claims. The evidence is that he was denied entry into Canada in the past. There was no evidence that it is unlikely that Hashemi would be admitted into Canada in the future. The court is asked to make inferences on these points -- that is, because Hashemi was denied entry into Canada in the past, he will be denied entry in the future, and because he was admitted to England in the past, he will be allowed to attend a trial in England. There was no evidence with respect to the immigration laws of Canada or of England. I do not accept that these are proper inferences to make on the evidence in this case.
[42] With respect, we find this reasoning unreasonable. Accepting there is always some uncertainty about the future, in our view the evidence that Hashemi was twice denied visas to enter Canada for the very purpose of participating in these proceedings amply supports the inference that he will be denied entry in the future. We fail to understand how evidence with respect to the immigration laws of Canada could assist a court in determining how discretion under those laws will be exercised in the future any better than how the discretion has already been exercised.
[43] In our view, the reasonable conclusion is that Hashemi will not be admitted to Canada to defend this action. On our reading of the decision, the motion judge's conclusion on an important factor -- Hashemi's ability to defend himself in each country -- turned on this faulty reasoning.
[44] The motion judge also erred in her treatment of the relative procedural advantages afforded by each jurisdiction. After reviewing the location of the proposed witnesses of the parties, she concluded that deferring to an English court might be helpful to Hashemi's witnesses, but might deprive the respondents of certain rights. She noted that the respondents relied on Ontario and Canadian law, including international covenants ratified by the Government of Canada, while Hashemi had provided no evidence that international covenants relied on by the plaintiffs had been adopted under English law.
[45] With respect, it was not Hashemi's burden to prove that English law is the same as, or would afford the same benefits as, Canadian law. The respondents adduced no evidence on the motion that an English court would apply English law, rather than the substantive law of Ontario or indeed Iran, the lex loci delicti, and that, if English law were to apply, that its provisions would result in a juridical disadvantage.
[46] In any event, our court has observed that, while the loss of a juridical advantage to a party can be a relevant consideration in the forum conveniens analysis, it is a concept that "should be applied with some caution, having regard to the principle of comity and 'an attitude of respect for the courts and legal [page233] systems of other countries, many of which have the same basic values as us'": Prince v. ACE Aviation Holdings Inc. (2014), 2014 ONCA 285, 120 O.R. (3d) 140, [2014] O.J. No. 1792 (C.A.), at para. 64, citing Van Breda, at para. 112.
[47] Having concluded that the motion judge committed reversible errors, it is our task to conduct a fresh analysis of the forum non conveniens question. The objectives in determining the appropriate forum are to ensure fairness to the parties and to provide an efficient process for resolving their dispute: Van Breda, at para. 109. In our view, both of these objectives would be better met through litigation in England.
[48] The only factor that connects this proceeding to Ontario is that the respondents reside here. They prefer to litigate here, with the assistance of legal counsel that they have already retained. Hashemi however has no connection whatsoever to Ontario or Canada, and once he is able to leave Iran he will have no ability to enter this country to attend trial or otherwise participate in person in these proceedings.
[49] On the other hand, both parties have some connection to England. The respondent lived there for three years, still has real property there, operates a business there that is his source of income, and travels there "often". While Hashemi is now in Iran in unclear circumstances, his evidence before the motion judge was that he was resident in England and had temporarily returned to Iran to clear his name in legal proceedings there. As at September 2012, he had held a series of visas permitting him to enter England for approximately a decade.
[50] With one exception, all the witnesses, except the respondents, reside outside of Canada. Most are in Iran or in Europe. Leaving aside the relative advantage of the English court in compelling the attendance of witnesses from Europe, a trial in England would require much less travel when all participants are considered.
[51] The respondents' counsel points out that Hashemi has been in Dubai, Australia, England and is now in Iran. He submits that a plaintiff should not have to chase a defendant around the globe; the location of the defendant should not govern where an action should proceed. Certainly, it seems that the appellant's location and status are unpredictable and subject to change, but it is significant that, in his affidavits challenging proceedings in Ontario, he has already consented to the action proceeding in England.
[52] The respondents place great emphasis on the fact that Hashemi cannot leave Iran at this point. As such, they argue, he would be compelled to participate in the proceedings remotely, [page234] whether they occur in Ontario or in England. The evidence is that similar procedures are available in both jurisdictions for videoconferencing and other electronic means for giving evidence outside of the courtroom. While it may be the case at present that Hashemi is equally unable to attend in Ontario and in England, it may be several years before a trial will take place. The possibility that Hashemi will be able to attend trial in England when weighed against the certainty that he will not be able to attend in Ontario militates in favour of England as the preferable forum.
[53] Finally, other factors, such as choice of counsel in a party's preferred forum, would seem to apply to both parties.
[54] Having determined that the motion judge erred in two significant findings that affected her decision, and having conducted our own review of the relevant circumstances, we would set aside the motion judge's decision and conclude instead that England is the more appropriate forum for the litigation of the respondents' claims.
G. Conclusion
[55] For the reasons given, the appeal is allowed. The respondents' action in Ontario is stayed so that proceedings may be pursued by the respondents in England. There will be no costs of the appeal.
Appeal allowed.
Notes
[^1]: In 2000, the respondents sued the Islamic Republic of Iran. The action, which was not defended and in which the Attorney General of Canada intervened, was dismissed because s. 3 of the State Immunity Act, R.S.C. 1985, c. S-18 bars claims based on torture in a foreign state: Bouzari v. Iran (Islamic Republic), [2002] O.J. No. 1624, [2002] O.T.C. 297 (S.C.J.). This court upheld the dismissal, and the Supreme Court denied leave to appeal: (2004), 2004 871 (ON CA), 71 O.R. (3d) 675, [2004] O.J. No. 2800 (C.A.), leave to appeal to S.C.C. refused [2004] S.C.C.A. 410.
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