COURT FILE AND PARTIES

COURT FILE NO.: 09-CV-382156

MOTION HEARD: MARCH 4, 2013

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Fakhrul Islam Kazi, plaintiff

v.

Qatar Airlines, John Doe, John Doe 2, John Doe 3, John Doe 4, Jane Doe, Jane Doe 2, Jane Doe 3 and Jane Doe 4, defendants

BEFORE: MASTER R.A. MUIR

COUNSEL:
Ronald G. Chapman for the moving parties/defendants
Ryan M. Naimark for the responding party/plaintiff

REASONS FOR DECISION

[1] This is a motion brought by the defendants pursuant to section 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”). The defendants seek an order staying this action on the grounds of forum non conveniens.

[2] The plaintiff opposes this motion. He takes the position that Ontario is the appropriate venue for his claim and that no other forum is more convenient and appropriate for this action.

BACKGROUND FACTS AND NATURE OF THE ACTION

[3] On November 8, 2008, the plaintiff boarded Air Canada flight 856 leaving from Toronto Pearson Airport with a destination of London Heathrow. The plaintiff’s ultimate destination was Dhaka, Bangladesh. However, his itinerary included a November 9, 2008 connecting flight from London Heathrow to Doha, Qatar on a flight operated by the defendant Qatar Airlines.

[4] The plaintiff alleges that during the course of his flight from London to Doha he was falsely accused by cabin personnel of smoking in the washroom. The plaintiff states that he was searched by flight attendants but that they were unable to locate any evidence of cigarettes or a lighter.

[5] Following the search, the plaintiff alleges that he was offered an alcoholic beverage by a member of the flight crew. He accepted the offer and admits to having consumed one glass of red wine.

[6] The members of the flight crew tell a different story. Their evidence is that the plaintiff was smoking in the lavatory. When he was confronted by the flight attendants he responded in a rude manner, demanded more alcohol and generally behaved in an unruly and disruptive fashion. As a result, the flight crew notified security and the plaintiff was detained by airport security officials upon landing in Doha.

[7] The plaintiff was ultimately charged with two offences under the laws of Qatar. The first was drinking wine while being a Muslim. The second was disturbing the peace due to his alcohol consumption.

[8] The plaintiff was incarcerated in Qatar from November 9, 2008 to January 2009. The plaintiff’s evidence is that on January 1, 2009, he was found “guilty as charged” and sentenced to receive 40 lashes and pay a fine in an amount equivalent to approximately $550.00 Canadian dollars.

[9] The plaintiff’s sentence was administered on January 5, 2009. He returned to Canada on or about January 11, 2009. The plaintiff alleges that as a result of the treatment and punishment he received while detained in Qatar, he suffered numerous injuries and damages. He states that he has had to take several medications and undergo various physiotherapy, cognitive and rehabilitation treatments. The plaintiff alleges that his enjoyment of life has been negatively affected as a result of the physical and psychological trauma he allegedly suffered while detained in Qatar. Finally, the plaintiff alleges that he has been unable to return to work since these events took place.

[10] The plaintiff commenced this action on June 30, 2009. The John and Jane Doe defendants are all unidentified employees or agents of the defendant Qatar Airlines. The plaintiff alleges that the defendants owed a duty to warn him of the prevailing laws in Qatar with respect to the consumption of alcohol by Muslims. The plaintiff argues that the defendants failed to take all reasonable steps to ensure that he was properly informed of such laws. As a result, the plaintiff seeks damages from the defendants for pain and suffering and for loss of income resulting from the events in Qatar. The defendants take issue with the plaintiff’s claims and allegations and dispute any liability.[^1]

ANALYSIS

[11] The basis of the court’s jurisdiction on this motion is found in section 106 of the CJA, which reads as follows:

106. A court, on its own initiative or on motion by any person, whether or not a party, may stay any proceeding in the court on such terms as are considered just.

[12] The defendants do not dispute that this court has jurisdiction to hear the plaintiff’s claim. They take the position, however, that Ontario is not the most convenient forum for the plaintiff’s claim to be heard. The defendants suggest that Qatar would be a more convenient location. As a result, they request that this Ontario action be stayed.

[13] The law relating to the stay of an action on the basis of forum non conveniens has recently been the subject of a thorough review by the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17. The following paragraphs from that decision are germane to the issues on this motion:

[103] If a defendant raises an issue of forum non conveniens, the burden is on him or her to show why the court should decline to exercise its jurisdiction and displace the forum chosen by the plaintiff. The defendant must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation. Finally, the party asking for a stay on the basis of forum non conveniens must demonstrate why the proposed alternative forum should be preferred and considered to be more appropriate.

[108] Regarding the burden imposed on a party asking for a stay on the basis of forum non conveniens, the courts have held that the party must show that the alternative forum is clearly more appropriate.

[109] The use of the words “clearly” and “exceptionally” should be interpreted as an acknowledgment that the normal state of affairs is that jurisdiction should be exercised once it is properly assumed. The burden is on a party who seeks to depart from this normal state of affairs to show that, in light of the characteristics of the alternative forum, it would be fairer and more efficient to do so and that the plaintiff should be denied the benefits of his or her decision to select a forum that is appropriate under the conflicts rules. The court should not exercise its discretion in favour of a stay solely because it finds, once all relevant concerns and factors are weighed, that comparable forums exist in other provinces or states. It is not a matter of flipping a coin. A court hearing an application for a stay of proceedings must find that a forum exists that is in a better position to dispose fairly and efficiently of the litigation. But the court must be mindful that jurisdiction may sometimes be established on a rather low threshold under the conflicts rules. Forum non conveniens may play an important role in identifying a forum that is clearly more appropriate for disposing of the litigation and thus ensuring fairness to the parties and a more efficient process for resolving their dispute.

[110] As I mentioned above, the factors that a court may consider in deciding whether to apply forum non conveniens may vary depending on the context and might include the locations of parties and witnesses, the cost of transferring the case to another jurisdiction or of declining the stay, the impact of a transfer on the conduct of the litigation or on related or parallel proceedings, the possibility of conflicting judgments, problems related to the recognition and enforcement of judgments, and the relative strengths of the connections of the two parties.

[14] These are the factors and principles I have applied in determining the issues on this motion. In my view, a consideration of the relevant factors leads to the conclusion that Qatar is not clearly a more appropriate forum for disposing of the issues raised in this action. It follows, therefore, that no order should be made staying this action.

[15] In my view, the location of the parties and witnesses is a neutral factor. The parties have identified several categories of witnesses whose evidence will be necessary at the trial of this action. Those witnesses will include members of the flight crew; members of the ground crew at Doha, including Qatar Airlines security personnel; airline managers and officials; airport and other police officers at Doha; individuals from the Qatar prosecutor’s office; Qatar prison officials; legal experts; other passengers on the flight; and the plaintiff’s damages witnesses and experts.

[16] In my view, most of those witnesses will be able to give evidence at a trial in Ontario with little difficulty. All of the witnesses who are also employees of Qatar Airlines can easily be brought to Ontario by their employer in order to testify. The same is true of any expert witnesses on foreign law that may be required. There is no evidence before the court with respect to the residency of the other passengers on the flight who may be called as witnesses. However, it seems logical to infer that some may be residents of Qatar but many others may be resident elsewhere in the world. Of course, I note that the information as to where the other passengers on the flight may live (or at least where they may have lived in 2008) is within the knowledge of Qatar Airlines and not the plaintiff.

[17] The plaintiff and all of the plaintiff’s doctors and other damages witnesses are located in Ontario. Qatar Airlines has an office in Toronto. The travel agency through which the plaintiff purchased his ticket to Dhaka is also located in Ontario, in the event that its evidence may be necessary.

[18] I accept the defendants’ expert evidence that some difficulty may be encountered in securing the attendance of certain witnesses who may be agents of the government of Qatar. However, I would also note that the plaintiff would no doubt encounter significant difficulty and expense in having his medical experts travel to Doha to give their evidence. I also accept the plaintiff’s evidence that it would be stressful for him to have to return to Qatar to pursue this action given his allegations with respect to the treatment he experienced while he was detained there.

[19] In my view, the issue of the law to be applied to this claim is also a neutral factor. The defendants argue in their factum that the applicable law may be the law of the United Kingdom, Qatar or Ontario. That issue will need to be addressed regardless of where this action takes place and it is far from clear at this stage which law will ultimately apply.

[20] The impact and cost of the transfer of the litigation is also a neutral factor. The plaintiff will no doubt incur additional cost if this dispute is decided in Qatar. He will have to travel to Qatar and pay for his experts and other witnesses to do the same (assuming they are willing to do so). Of course, if this action remains in Ontario, the defendants will incur similar costs to bring their witnesses to Ontario. I am also mindful of the fact that the plaintiff is currently living on social assistance.

[21] As for the conduct of the litigation itself, I note that there are no related proceedings that may be affected by a transfer of this claim and the plaintiff has not provided any evidence of a loss of juridical advantage.[^2]

[22] Other factors favour Ontario. There is a real issue as to the location of the making of the contract between the plaintiff and Qatar Airlines. The plaintiff argues that the contract was made in Ontario when he purchased his ticket from the travel agent. Qatar Airlines takes the position that it was created in the United Kingdom when the plaintiff got on the Qatar Airlines flight from Heathrow to Doha. I do note, however, that the itinerary issued to the plaintiff by the travel agent identifies Qatar Airlines as the issuer of the plaintiff’s ticket. In any event, there is certainly a reasonable argument to be made that the contract was entered into in Ontario. There appears to be no suggestion by the defendants that it was entered into in Qatar.

[23] Finally, both parties have strong connections to Ontario. The plaintiff lives in Ontario. Qatar Airlines has an office in Ontario and is registered to carry on business in Ontario.

[24] Two factors raised by the defendants may possibly favour Qatar. They relate to the potential for conflicting decisions and problems connected to the recognition and enforcement of an Ontario judgment in Qatar. The defendants’ expert states that the enforcement of an Ontario judgment would be “very difficult”. His evidence is that the courts in Qatar may look beyond the judgment and require that there be a re-hearing of the entire matter. This would, of course, give rise to the possibility of a conflicting decision.

[25] First, I note that the defendants’ expert states that enforcement would be “very difficult”. He does not state that it would be unavailable. Second, it is not clear to me that it would even be necessary for the plaintiff to enforce any judgment in Qatar. Qatar Airlines has an office in Toronto and presumably carries on some form of business from that office. It may very well have assets in Ontario from which any potential judgment could be satisfied without the necessity of enforcement proceedings in Qatar. Moreover, there is no evidence before the court of whether Qatar Airlines has assets in other jurisdictions around the world where enforcement would be much easier. At the very least, we know that Qatar Airlines operates a flight from London to Doha. It is not a stretch to assume that a business such as the one operated by Qatar Airlines would have assets throughout the world.

[26] These factors are certainly a relevant consideration. They do marginally favour Qatar as the appropriate forum for this claim. However, it is my view that when they are balanced against the other relevant factors, they are not sufficient to tip the scale in favour of Qatar as the appropriate location for this dispute to be determined.

CONCLUSION

[27] For the reasons set out above, I have concluded that no stay of this action should be ordered. In my view, the defendants have not met their burden to demonstrate that Qatar is clearly a more appropriate forum. Indeed, it is my view that the evidence on this motion establishes, on balance, that Ontario is the more appropriate location for this claim. I therefore see no basis to interfere with the plaintiff’s choice of venue.

COSTS

[28] At the conclusion of the argument of this motion, the parties agreed that the successful party should receive its partial indemnity costs of this motion in the amount of $5,000.00. In my view, this is a fair and reasonable costs order for a motion of this nature.

ORDER

[29] I therefore order as follows:

(a) the defendants’ motion is dismissed;

(b) the defendants shall deliver their statement of defence by no later than May 10, 2013;

(c) the registrar shall not dismiss this action as abandoned before July 31, 2013; and,

(d) the defendants shall pay the plaintiff’s costs of this motion on a partial indemnity basis fixed in the amount of $5,000.00, payable within 30 days.

Master R. A. Muir

Date: March 7, 2013

[^1]: The merits are not a consideration on a motion of this nature and I make no finding as to the relative strength or weakness of the plaintiff’s claim.

[^2]: The onus is on the plaintiff to demonstrate any potential loss of juridical advantage. See North American Steel Equipment Co. v. G.N. Johnston Equipment Co., [1999] O.J. No. 1562 (S.C.J.) at page 3.