SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 09-CV-382156
MOTION HEARD: April 23, 2012

RE: 09-CV-382156 Kazi v. Qatar Airlines et al.

BEFORE: Master Joan Haberman

COUNSEL:
Chapman, R.G. for the moving party, Qatar Airlines

Naimark, R. for the responding party, plaintiff

REASONS

Master Haberman:

[ 1 ] The defendant moved before me to set aside the noting in default. I heard the motion on April 23, 2012 and granted it without costs, with Reasons to follow. These are my Reasons.

Context

[ 2 ] The motion arises in the context of an action against Qatar Airlines and several “Doe” defendants. The plaintiff, a Toronto resident, purchased an airline ticket in November 2008 from Qatar Airlines, with the intent of traveling from Toronto to Doha. The flight had one connection through Heathrow Airport in London.

[ 3 ] Kazi alleges that, during the second half of the flight, he was offered an alcoholic beverage by crew and he accepted. He claims that, as Sharia law applied on the flight, this led to his being reported to local Qatar authorities and charged with drinking an alcoholic beverage though a Muslim.

[ 4 ] He claims he was taken into custody and held for months, during which time he was physically abused, starved and eventually forced to pay a fine for his release.

[ 5 ] The claim against this defendant stems from their having allegedly failed to tell him that strict Sharia law applied on the flight, and then placing him in danger by offering him alcohol.

Chronology of Events

[ 6 ] The statement of claim in the action was issued in June 2009 and served on Qatar on July 28, 2009.

[ 7 ] Instead of defending the action, Qatar first sought particulars. These were served in November 2009 and a response was quickly provided.

[ 8 ] On November 17, 2009, Qatar counsel wrote to advise that he would be moving to have the action stayed on the basis of forum non conveniens . A date of February 8, 2010 was tentatively scheduled, subject to the availability of Kazi’s counsel.

[ 9 ] Kazi’s counsel was not available, so in December 2009, March dates were canvassed. Thereafter, the stories diverge.

[ 10 ] Qatar’s evidence was submitted through the affidavit of Lisa Whiting, their counsel’s clerk. She says little, instead, choosing to append a pile of letters to her affidavit for the court’s review. This is not a helpful way to put a version of events before the court. To begin with, none of the letters proves its contents, most of which is not referred to in the affidavit. Further, rather than reading a concise and chronological story, the court is required to “do the leg work” by reading each letter and then having to piece the story together, an extremely time consuming way to acquire this information.

[ 11 ] There are also major gaps in Whiting’s evidence. In paragraph 7, she suddenly begins talking about a summary judgment motion in addition to the forum non conveniens motion without bothering to explain the metamorphosis of the motion. She then introduces the pile of correspondence by simply saying they are copies of correspondence setting out attempts to schedule these motions from November 17, 2009 to April 1, 2011, a period of 17 months.

[ 12 ] Kazi’s evidence is no better. In their case, the affidavit is sworn by Charlene Lewis, law clerk to Kazi’s counsel. She quotes liberally from what she was told by Mr. Naimark, again not a proper way to put evidence before the court. Aside from constituting hearsay, the evidence is effectively that of Mr. Naimark, who was counsel on this motion. It is trite law that counsel cannot avoid the prohibition against appearing as counsel and a witness simultaneously by putting in what is effectively their own evidence through the mouth of another.

[ 13 ] A review of the correspondence suggests that this matter stalled for some time largely due to the conduct of two stubborn men – counsel for the two parties. To be fair, Mr. Chapman created the initial confusion that led to this stalemate, by shifting gears mid-motion without explanation. Having first set out to bring a motion for a stay premised on forum non conveniens , he suddenly began to refer to a motion for summary judgment.

[ 14 ] Because of Qatar’s failure to explain what they were doing at the outset when the second motion was injected into the discussion, Kazi’s counsel assumed the stay motion had been abandoned and that it had been replaced by the motion for summary judgment. As his client had already incurred costs preparing for the stay motion, he did want to schedule dates for a summary judgment motion until the issue of those costs was resolved.

[ 15 ] Qatar counsel kept pressing for a motion date, now saying he never scheduled the stay motion so he could not be said to have abandoned it. This was not accurate. The motion was, in fact scheduled, but as it was not confirmed, it was marked as abandoned by the court. By that time, however, both counsel had agreed the matter was not going to proceed as scheduled. Enter new plaintiff counsel.

[ 16 ] At some point, Qatar advised they actually planned to bring both the stay motion and the summary judgment motion together. The two counsel talked at cross-purposes, each asserting their position, while the action sat stagnant. Qatar counsel ignored Kazi’s counsel’s logic as to why the two should be kept separate. Each pressed the other for motion dates – Qatar for their double motion, Kazi, for a motion for costs. Eventually, Kasi’z counsel agreed that a date could be set for the two defence motions.

[ 17 ] No statement of defence was filed in the interim. On May 31, 2011, counsel attended Triage Court to schedule the summary judgment and stay motions and agreed to a timetable, pursuant to which Qatar was to have delivered its motion records for both motions by August 5, 2011. As it turns out, the motion record for the summary judgment motion was not served within that time frame, nor has it been served to-date.

[ 18 ] On July 11, 2011, the court issued a notice that the action would be dismissed as abandoned as no defence had been filed and no steps had been taken to move for judgment. This was communicated to Qatar counsel by letter of July 15, 2011 and he was told that Qatar would be noted in default if a statement of defence was not received by 5:00 pm on July 20.

[ 19 ] Qatar counsel refused to file a defence, for fear of it being viewed as atourning to the jurisdiction. Clearly, however, he had failed to give much thought to how he would qualify to bring his summary judgment motion under Rule 20.01(3). In view of that provision, Qatar was only permitted to move for summary judgment after having delivered a statement of defence. Perhaps this is what led to the non-delivery of the motion record for this motion.

[ 20 ] There was more back and forth with Qatar counsel eventually agreeing to bring a motion to extend the time for delivery of a statement of defence. Had he done so, this would have stopped the dismissal notice from taking effect at that time. However, though that undertaking was given on July 26, 2011, no steps were taken to put the plan in action.

[ 21 ] August 5, 2011 was the due date for the motion record for Qatar’s motion for summary judgment –it came and went without the requisite document appearing. Concerns arose as to whether all of this had been a stalling tactic.

[ 22 ] Then junior counsel for Kazi, Ms. Kabongo wrote to Qatar counsel, making a statement that no one appears to understand. In her letter of August 8, 2011, she states:

[ 23 ] Further to your letter dated July 26, 2011, we requested that you bring any motion under Rule 48.15 of the Rules of Civil Procedure for an extension, within the delay outlined in the Notice that the Action will be Dismissed dated July 11, 2011 and in any event prior to the dismissal of our action.

It does not appear, from our reading of the Rules , that such a motion can be brought prior to the dismissal of our action and as such please be advised that we are proceeding with noting our client in default.

[ 24 ] Ms. Kabongo does not state that too much time had passed without any action on Qatar’s part, nor does she express concern that the action will be dismissed on or around August 25 if nothing is done. What she seems to be saying is that no motion can be brought until after the action has been dismissed so she is proceeding to note default. That is how I read this letter and Kazi’s counsel offered no other way to read it. This statement, however, is clearly legally incorrect.

[ 25 ] The requisition to note default was filed on August 19, 2012. Ms. Kabongo waited until September 9, 2011 to so advise Qatar counsel, then refused his request to set the noting in default aside on consent.

The Law

[ 26 ] Pursuant to Rule 19.03(1), the court may set aside a notice of default on terms that are just. When considering the issue, the court has broad discretion, and should consider the conduct of both parties and their counsel, along with all other relevant circumstances.

[ 27 ] Qatar has certainly illustrated a clear intent, if not to defend the action in Ontario, to deal with it here. The failure to defend earlier was the result of their desire to bring a motion to challenge jurisdiction which got side-tracked as outlined above. Upon learning of the default, Qatar then moved relatively promptly to set it aside (see Memotec Communication Inc. v. Qnetic Computer Consultantants Inc. [1999] J No. 2369; Metropolitan Toronto Condominium Corp. No. 706 v. Bardmore Developments Ltd. (1991), 1991 7095 (ON CA) , 3 OR (3d) 278).

[ 28 ] I say “relatively promptly” as the January date scheduled for the matter was lost because counsel seriously underestimated the time needed to argue it so it was put over to April.

[ 29 ] The action is a novel and potentially complex one. Qatar has advised that its defence will be that Kazi consumed more alcohol that he ought to have, smoked in the washroom, and became belligerent with staff. Regardless of whose version of events you accept, the outcome was extreme and dramatic for Kazi.

[ 30 ] Despite that, there is no evidence that he will suffer any prejudice if the action is permitted to proceed to a trial on its merits.

[ 31 ] In all of the circumstances I see no basis for refusing the relief sought.

[ 32 ] As regards costs, however, my view is that each side is equally responsible for this state of affairs, Qatar at the outset and Kazi later on in the piece in view of the very quizzical Kabongo letter.

[ 33 ] It is therefore ordered that the noting in default is hereby set aside and the defendant shall attend court within 20 days obtain a new date for the stay motion, only, at this time. If the stay motion does not succeed, the defendant shall deliver a statement of defence and thereafter either bring the motion for summary judgment or get on with this action.

Master Joan M. Haberman

Released: May 10, 2012