Court File and Parties

COURT FILE NO.: 05-CV-290404PD1
DATE: 20131211

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Houshang Bouzari, Fereshteh Yousefi, Shervin Bouzari and Narvan Bouzari

Plaintiffs

– and –

Mehdi Hashemi Bahremani, aka Rafsanjani, Akbar Hashemi Bahremani, aka Rafsanjani, Ali Fallahian Najaf Abadi, Gholam Hossein Mohensi Ejei, John Doe, aka Siyadati, Bill Doe, aka Akbari Rad Massoudi and Tom Doe, aka Mohammad Saeedi aka Asghar Saeedia aka Mr. 99

Defendants

Mark H. Arnold, for the Plaintiffs

David W. Foulds/Brandon Barnes, for the Defendant, Mehdi Hashemi Bahremani Rafsanjani

HEARD: October 2, 2013 and November 6, 2013

ENDORSEMENT

POLLAK J.

[1] The default judgment against the moving party, Defendant Mehdi Hashemi Bahremani Rafsanjani (“Hashemi”), was set aside. Hashemi now relies on the doctrine of forum non conveniens to request this court to decline jurisdiction in favour of proceeding in England.

[2] The parties rely on the following summary of the burden of proof to be met by Hashemi, from the Supreme Court of Canada in Club Resorts Ltd. v. Van Breda, 2012 SCC 17, [2012] 1 S.C.R. 572, at paras. 108-109:

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.

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. [Emphasis added.]

[3] Hashemi submits that the only justification for Ontario’s jurisdiction in this action is that Ontario has already heard the case of Bouzari v. Iran, 2004 871 (ON CA), [2004] O.J. No. 2800 (ONCA).

[4] As Hashemi was not a party to that action, the doctrine of forum non conveniens was not argued or considered. Hashemi does not submit that this Ontario court has jurisdiction in this action.

[5] In the Van Breda case, at para. 105, the court identified some factors to be considered to determine if an alternative forum is clearly more appropriate. These are:

(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 (footnote omitted).

[6] In the case of Breeden v Black, 2012 SCC 19, [2012] 1 S.C.R. 666, the Supreme Court of Canada upheld a decision in which the following factors were considered:

• location of the majority of the parties,

• location of key witnesses and evidence,

• applicable law and its weight in comparison to factual questions to be decided,

• the avoidance of a multiplicity of proceedings,

• geographical factors suggesting the natural forum,

• whether declining jurisdiction would deprive the plaintiff of legitimate juridical advantage available in the domestic court.

[7] Hashemi submits that this court must apply the principles of efficiency and fairness. As Iran is not an appropriate jurisdiction for either party, Hashemi submits that the issue is whether Ontario or England should be preferred. His argument is that England should be preferred, because of the location of the evidence, the relative ties of both parties, the inability of the defendant to get a visa to enter Canada, the fact that material events in the claim occurred in England, and the benefits of English procedure to the particularities of these parties and the relevant facts.

[8] The plaintiffs, however, submit that there is no real or substantial connection between England and the cause of action or the parties to this proceeding. They submit that requiring the action to be heard in England will deprive them of their Toronto counsel and force them to retain English counsel at significant additional legal expense.

[9] Hashemi’s evidence is that he is now resident in England and has temporarily returned to Iran to clear his name in legal proceedings there. He was in prison there, and has been released on bail. His evidence is that he remains employed in England; he is a graduate student in England; he intends to return to England; his family is in England; and he may soon be in a position to travel outside of Iran.

[10] He submits that the only link this action has to Ontario is the presence of the plaintiffs here.

[11] Specifically, Hashemi’s evidence is that he is a student at Wolfson College at Oxford University. His studies are suspended until his Iranian situation is resolved. He will have to renew his visa to England but he relies on the fact that he has had no difficulty getting visas to enter, reside, and work in England in the past. His son is in England, and his sister travels there.

[12] Hashemi places great emphasis on the fact that he has never been admitted to Canada. In 1993, his request for a visa was denied at the border in Calgary. For the purposes of this action, he twice applied for a visa from London with the assistance of UK counsel. He was unsuccessful both times. (One application was rejected as the consular official believed he might not leave Canada; the second application has received no response.)

[13] Hashemi submits that the allegations of torture made against him are very serious, and that it would be extremely unfair if he did not have proper access to his counsel, could not participate in discoveries in the normal manner, and were unable to attend the trial.

[14] He relies on Van Breda, in which the Supreme Court held that the domicile or residence of the defendant is a key indicium of presumptive jurisdiction.

[15] Hashemi also relies on the case of Nagra v. Malhotra, 2012 ONSC 4497, 111 O.R. (3d) 446, in which the court stated, at para. 42: “In my view, it would work a real unfairness on the plaintiff to now require the trial proceedings to take place in Vermont, where the plaintiff is not legally permitted to travel.”

[16] He further relies on the case of Wilson v. Riu, 2012 ONSC 6840, [2012] O.J. No. 5679, in which the court declined jurisdiction and found that one of the major factors to consider was the preponderance of witnesses who the court expected would face immigration issues in coming to Canada from Jamaica.

[17] Hashemi submits that the plaintiff Houshang Bouzari, who is now in Canada, has significant connections to England. His sole source of income is from a business in England. He travels to England frequently and owns property in England. He lived in England for more than three years immediately following the alleged torture. Aspects of the claim are alleged to have taken place in England, and the alleged suffering of the other plaintiffs occurred in England.

[18] The plaintiffs submit that they are connected to Ontario, and rely on the evidence that Hashemi is in Iran and unable to leave. There is no evidence as to when he will be able to leave. Furthermore, even if he could leave Iran there is no evidence that he will be able to get a visa permitting him to enter England. It is also submitted that there is no evidence that he is currently employed in England. The evidence is that his studies there are suspended. It is submitted that whether Ontario or England assumes jurisdiction, Hashemi will have to present his evidence through an electronic medium such as Skype video, as he has already done in this action.

[19] The plaintiffs own a home in the Toronto region and are directors of an Ontario corporation. The plaintiffs submit that it is irrelevant that Shervin Bouzari lives in Las Vegas for part of the year for business and has an international internet business, and that Houshang Bouzari may have an interest in a business in England and frequently travels to England and parts of Europe.

[20] The plaintiffs submit that the opinion sought by counsel for Hashemi on the issue of giving evidence by video link anticipates that Hashemi will not be able to attend in the English court should this motion be granted.

[21] It is submitted that both the "requesting court" (England) and the "requested court" (Iran) must be in agreement before such technology could be used in the English court. There is no evidence this agreement could be obtained. It is therefore submitted that if this matter were transferred from Ontario to the English court, Hashemi might not be able to conduct his defense via video conference from Iran. This is to be contrasted with the successful use of Skype in this case in Ontario.

[22] In my view, 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 in this case. Hashemi’s claims are that, while he may be able to attend in English court in the future, he could not attend in the Ontario court. 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.

[23] As referred to above, the burden of proof is on Hashemi to show that England is “clearly more appropriate.” The evidence is inconclusive with respect to Hashemi’s ability to physically attend in court in Ontario or England. I cannot conclude that if this matter is transferred to an English court, Hashemi will be able to participate in his defence. Conversely, I cannot conclude that Hashemi will not be able to properly defend himself if this action remains in the Ontario court. The onus to provide the necessary evidence on this important point is on Hashemi, and he has not provided it.

[24] There are also other factors that the court must consider. Hashemi submits that all of the potential witnesses for both parties are either in the Middle East or in Europe. He submits that the plaintiffs’ witnesses come from Europe and have no link with Canada. He relies on the fact that it is easier to compel European residents to testify in an English court than in Ontario.

[25] The plaintiffs, however, submit that they have identified their witnesses and they will be able to attend trial in Toronto.

[26] Hashemi’s evidence is that he has seven potential witnesses, all of whom are Iranians (one is domiciled in Dubai) with no ties to Canada.

[27] Hashemi also emphasizes that all of the facts pleaded in the claim, and the physical events upon which the claim is based, occurred in Iran. The plaintiffs submit that this should be given minimal consideration, and note that none of the facts alleged in the claim took place in England.

[28] Hashemi further submits that this court should consider the fact that the parties have significant procedural advantages if the litigation is heard in England. However, the plaintiffs counter that Hashemi has submitted no evidence with respect to English statutory or common law authority that might apply to limitation periods in England, or with respect to whether limitation issues in England may provide a defence to the claim there. The plaintiffs submit that Hashemi has provided no evidence that international covenants relied on by the plaintiffs have been adopted under English law. Further, the plaintiffs rely on the fact that they have pleaded that the applicable laws governing the allegations are the laws of Canada and Ontario.

[29] The plaintiffs rely on Canadian law that kidnapping, false imprisonment, assault, torture and death threats are tortious, and they seek damages. They rely on the doctrine of "forum of necessity" to establish jurisdiction. They also rely on international covenants that have been ratified by the Government of Canada. They submit that there are no statutory limitation prohibitions that apply to the claims.

[30] The plaintiffs also note that as no defense has been filed, we do not know what law Hashemi relies on.

[31] The evidence, in my opinion, supports the conclusion that deferring to an English court may be helpful to Hashemi’s potential witnesses, but may deprive the plaintiffs of the rights I have referred to above, and may or may not assist Hashemi in his ability to participate in the defence of this case.

[32] When all of the above-noted factors are considered, I find that Hashemi has not met his burden of proving that England is clearly a more appropriate forum than Ontario.

[33] The motion is therefore denied.

Costs

[34] If the parties are unable to agree on the issue of costs, they may make brief written submissions to me. As the rules provide, the submissions will be no longer than three pages in length. If there are any offers of settlement that bear on the issue of costs, these should be included. The plaintiffs’ costs submissions (copied to the defendant) will be delivered by 12:00 p.m. on December 27, 2014, with the defendant’s costs submissions (copied to the plaintiffs) to be delivered by 12:00 p.m. on January 10, 2014.

Pollak J.

Released: December 11, 2013

COURT FILE NO.: 05-CV-290404PD1
DATE: 20131211

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Houshang Bouzari, Fereshteh Yousefi, Shervin Bouzari and Narvan Bouzari

Plaintiffs

– and –

Mehdi Hashemi Bahremani, aka Rafsanjani, Akbar Hashemi Bahremani, aka Rafsanjani, Ali Fallahian Najaf Abadi, Gholam Hossein Mohensi Ejei, John Doe, aka Siyadati, Bill Doe, aka Akbari Rad Massoudi and Tom Doe, aka Mohammad Saeedi aka Asghar Saeedia aka Mr. 99

Defendants

ENDORSEMENT

Pollak J.

Released: ** December 11, 2013 **