Mohammad v. Tarraf et al.

[Indexed as: Mohammad v. Tarraf]

Ontario Reports Ontario Superior Court of Justice Gray J. March 15, 2019 145 O.R. (3d) 370 | 2019 ONSC 1701

Case Summary

Conflict of laws — Jurisdiction — Forum of necessity — Defendant unlawfully depriving plaintiff of his interest in poultry farm in United Arab Emirates — Plaintiff and his family subjected to intimidation and death threats by defendant causing them to flee to Canada and make successful refugee claims — Plaintiff suing defendant in Ontario — Plaintiff reasonably believing that government and royal family in Dubai had aligned themselves with defendant and that his life would be in danger and he would be unable to receive fair trial if he sued in United Arab Emirates — Court assuming jurisdiction based on forum of necessity exception to real and substantial connection test.

The plaintiff claimed that he and the defendant entered into a joint venture agreement in the United Arab Emirates to develop worthless desert property into a poultry farm, and that the defendant converted the assets of the poultry farm to his own use and failed to honour his obligations under the agreement. The defendant then subjected the plaintiff and his family to a campaign of intimidation, coercion and death threats, as a result of which they fled Dubai and made successful refugee claims in Canada. The plaintiff sued the defendant in Ontario. The defendant was personally served with the statement of claim but did not respond. The plaintiff brought a motion for default judgment.

Held, the motion should be granted.

The plaintiff reasonably believed that the government and royal family in Dubai were aligned with the defendant and that his life would be in danger and he would not receive a fair trial if he sued in the United Arab Emirates. The court should exercise its residual discretion to assume jurisdiction based on the common law forum of necessity exception to the real and substantial connection test.

Based on the uncontradicted evidence, the plaintiff was entitled to the relief sought.

Cases Considered

• Lamborghini (Canada) Inc. c. Automobili Lamborghini S.P.A., 1996 QCCA 6047, [1996] J.Q. no 4175, [1997] R.J.Q. 58, J.E. 97-156, 68 A.C.W.S. (3d) 62, EYB 1996-65621 (C.A.)
• West Van Inc. v. Daisley (2014), 119 O.R. (3d) 481, [2014] O.J. No. 1424, 2014 ONCA 232, 317 O.A.C. 294, 55 C.P.C. (7th) 61, 239 A.C.W.S. (3d) 924, consd

Other Cases Referred To

• Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.)
• Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, 343 D.L.R. (4th) 577, 429 N.R. 217, J.E. 2012-788, 291 O.A.C. 201, 91 C.C.L.T. (3d) 1, 17 C.P.C. (7th) 223, 10 R.F.L. (7th) 1, EYB 2012-205198, 2012 SOACQ para. 10,118, 2012EXP-1452, 212 A.C.W.S. (3d) 712, affg
• Van Breda v. Village Resorts Ltd. (2010), 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 ONCA 84, 264 O.A.C. 1, 316 D.L.R. (4th) 201, 81 CP.C. (6th) 219, 71 C.C.L.T. (3d) 161, 77 R.F.L. (6th) 1, 185 A.C.W.S. (3d) 68
• Josephson (Litigation guardian of) v. Balfour Recreation Commission, [2010] B.C.J. No. 756, 2010 BCSC 603, 91 C.P.C. (6th) 1, 10 B.C.L.R. (5th) 369, 188 A.C.W.S. (3d) 695

Authorities Referred To

• Amnesty International, "There Is No Freedom Here" — Silencing Dissent in the United Arab Emirates (2014)

Motion for Default Judgment

Counsel: Marlon M. Roefe, for plaintiff. No one for defendants.

Endorsement

[1] GRAY J.: — The plaintiff, Mr. Mohammad, sues the defendants for wrongs committed against him in the United Arab Emirates in the period 1993 to 2000. He claims that he and the defendant Tarraf entered into a joint venture to develop worthless desert property into productive farm property. He claims that they successfully did so, and then Mr. Tarraf unlawfully took over the entire business and excluded the plaintiff from it. This was followed by intimidation, threats, harassment and duress, which were approved of and acquiesced in by the government authorities and the royal family of Dubai.

[2] The defendants have been personally served with the statement of claim, but they have not responded and have not appeared.

[3] The plaintiff now brings a motion for default judgment on the statement of claim, supported by a lengthy affidavit.

[4] The most significant issue is whether this court has jurisdiction to entertain the action. In the circumstances, the only real issue is whether this court is a "forum of necessity", which is a narrow doctrine under which the court, in a case in which it otherwise does not have jurisdiction, can nevertheless hear a case where there is no other forum in which the plaintiff can reasonably seek relief and receive a fair trial. The doctrine is so narrow that, to date, there have been only two cases in Canada in which the doctrine has been applied, and there are many in which the courts have declined to act.

[5] For the reasons that follow, I hold that the plaintiff has satisfied the tests for establishing that this court is a forum of necessity, and I grant judgment to the plaintiff as requested.

Background

[6] The facts are taken from the uncontradicted affidavit of the plaintiff, sworn September 25, 2018.

[7] The plaintiff deposes that on September 11, 1993, he and the defendant Tarraf entered into an agreement to form a limited liability company whereby he and Mr. Tarraf as joint venturers and partners would own and operate a poultry farm.

[8] The property on which the farm was to be located was undeveloped desert land without services for utilities.

[9] Mr. Mohammad had a 49 per cent interest in the venture and Mr. Tarraf held a 51 per cent interest.

[10] Under the agreement, Mr. Mohammad was to be repaid all operating expenses and draw an income for management fees. Mr. Mohammad deposes that he was given a personal undertaking by Mr. Tarraf that he would be paid when the poultry plant was operational. Notwithstanding the assurance, Mr. Mohammad deposes that he was not paid, and the defendants were unjustly enriched.

[11] Mr. Mohammad deposes that he was responsible for setting up and establishing the processing plant and otherwise developing the property, which was completed in 1995. He pleads that the poultry farm became operational in 1995, and was successful and profitable.

[12] Mr. Mohammad deposes that when he sought to be repaid his expenses and paid the outstanding salary and management fee, and an accounting for the profits, Mr. Tarraf resiled from his obligations and wrongfully converted the assets of the poultry farm to his own use and benefit, and transferred the assets to the defendant, Al Jazira Poultry Farm LLC.

[13] At para. 16 of his affidavit, Mr. Mohammad deposes as follows:

The defendant Mohammad Hilal Salim Bin Tarraf due to his close association and relationship with the Royal Family of Dubai, was able to subject my family and I to a campaign of intimidation, threats and coercion with impunity and the express or implied approval, acquiescence and assistance of the governmental authorities and the Royal Family of Dubai.

[14] Mr. Mohammad deposes that the electricity and water which serviced his residence was cut off; he and his family were wrongfully detained by the security forces of Mr. Tarraf; his children were wrongfully and without reason expelled from their school; his ability to travel within Dubai was limited; his personal property was confiscated; and he and his family were threatened repeatedly with physical harm, death and unlawful arrest.

[15] Mr. Mohammed deposes that he could not appeal to the government or police for assistance because they abided by the corrupt demands of Mr. Tarraf.

[16] Mr. Mohammed deposes that as a consequence of the intimidation, threats, harassment and duress imposed by Mr. Tarraf and those acting on his behalf, he and his family feared for their lives and safety, and clandestinely fled Dubai and ultimately came to Canada as refugees. He and his family were accepted as refugees by the Immigration and Refugee Board on March 15, 2000. They are now Canadian citizens.

[17] Mr. Mohammed, in his statement of claim, requests an order tracing the assets and undertakings of the corporation, or in the alternative, damages in the sum of 45,685,000 UAE dirham or its equivalent in Canadian dollars, or in the alternative, damages in the sum of CDN$16,500,000.

[18] Mr. Mohammed deposes that in 2016 and 2017, he and his counsel sent written demands to the defendants to comply with their obligations and to pay the amounts owing to him. No response was received.

[19] Mr. Mohammad deposes that he has located a document on the Internet that shows that Al Jazira Poultry Farm LLC has annual revenues of US$6 million from the exporting of table eggs.

[20] At para. 33 of his affidavit, Mr. Mohammad deposes as follows:

Due to the nature of the government in Dubai, the absolute power within the Royal Family in Dubai, and the defendant Mohammad Hilal Salim Bin Tarraf's close association with the Royal Family, I was powerless to seek redress through the courts in Dubai, and to this day, I continue to fear that should I return to pursue my claims, my life would be in jeopardy and I would risk unlawful arrest and indefinite detention.

[21] In the same paragraph of his affidavit, Mr. Mohammad refers to an article published by Amnesty International Ltd. in 2014, entitled "There Is No Freedom Here" -- Silencing Dissent in the United Arab Emirates. He has attached a copy of the article to his affidavit as an exhibit. The article is 79 pages long, and Mr. Mohammad refers to the affidavit "in support of finding that my fears are reasonable and appear to have a factual basis and are not simply grounded in my direct and personal experience".

[22] On October 15, 2017, the defendants were personally served in Dubai with the statement of claim, and with a notarial translation of the statement of claim from the English language to the Arabic language. The defendants did not respond to the claim and were noted in default on December 22, 2017.

[23] In his affidavit, Mr. Mohammad calculates his losses at $24,065,652.31. He deposes that this exceeds the amount that he claimed in his statement of claim, and for the purpose of the default judgment motion, he waives the excess and seeks judgment in the amount as claimed. As noted earlier, the amount in Canadian dollars claimed in the statement of claim was $16,500,000.

Submissions

[24] Mr. Roefe, counsel for the plaintiff, submits that this court has jurisdiction to entertain this action.

[25] Mr. Roefe submits that as a result of the plaintiff and his counsel making demands for payment from Ontario, this is sufficient to give the claim a real and substantial connection to Ontario.

[26] In the alternative, if the court were to conclude that this court has no jurisdiction to entertain the claim, nevertheless the court should entertain the action based on its residual discretion to assume jurisdiction based on the common law forum of necessity exception to the real and substantial connection test.

[27] Mr. Roefe submits that the threshold for assuming jurisdiction on the basis of the forum of necessity exception has been met here.

[28] Mr. Roefe points out that it is uncontradicted that the defendant, Mr. Tarraf, has a close connection with the royal family and the government in the United Arab Emirates. It is also uncontradicted that Mr. Mohammad was unlawfully deprived of his interest in the poultry farm by the actions of Mr. Tarraf, with the acquiescence and support of the government and royal family in Dubai. Furthermore, Mr. Mohammad and his family were subjected to intimidation, threats and coercion, including the cutting off of electricity and water to his residence; wrongful detention; the expelling of his children from school; the confiscation of his personal property; and threats of physical harm, death and unlawful arrest.

[29] Mr. Roefe points out that it is uncontradicted that as a consequence of the treatment of Mr. Mohammad in Dubai, he and his family were required to leave the country clandestinely, and come to Canada as refugees. Their application was accepted, and he and his family members are now Canadian citizens.

[30] Mr. Roefe points out that it is uncontradicted that Mr. Mohammad reasonably feared that he was powerless to seek redress through the courts in Dubai, and he reasonably fears that should he return to pursue his claims, his life would be in jeopardy. His personal fears are reasonably supported by an article written by the well-respected organization, Amnesty International.

[31] Mr. Roefe submits that for these reasons, this court should exercise its residual discretion to assume jurisdiction on the basis of the forum of necessity exception to the real and substantial connection test.

[32] Mr. Roefe submits that there is no contradictory evidence to rebut the evidence sworn to by Mr. Mohammad as to the basis of his claim and the damages suffered, and thus default judgment should issue.

Analysis

[33] I do not agree with Mr. Roefe's argument that Mr. Mohammad's claim has a real and substantial connection to Ontario. All of the conduct complained of occurred in the United Arab Emirates. The mere fact that demands for payment were made through communications sent from Ontario for payment of damages that clearly were suffered through actions taken entirely in the United Arab Emirates, is not sufficient to give the claim a real and substantial connection to Ontario.

[34] The real issue is whether the court should exercise its residual discretion to assume jurisdiction based on the forum of necessity exception.

[35] The leading case on the forum of necessity exception is West Van Inc. v. Daisley (2014), 119 O.R. (3d) 481, [2014] O.J. No. 1424, 2014 ONCA 232. The reasons for judgment of the Court of Appeal were written by Hoy A.C.J.O.

[36] In that case, it was conceded that the plaintiff's claim did not have a real and substantial connection to Ontario. The plaintiff requested that the court exercise its residual discretion to assume jurisdiction based on the common law forum of necessity exception to the real and substantial connection test. The basis of the plaintiff's argument was that he wished to sue his former counsel, a resident of North Carolina. He had attempted to secure counsel in North Carolina to pursue his claim, without success. Most, if not all, of the law firms in Charlotte, North Carolina and Raleigh, North Carolina were contacted, and they all declined to act. The plaintiff's representative further deposed that he doubted that the plaintiff could get a fair trial in North Carolina.

[37] The Court of Appeal ultimately concluded that the plaintiff had not satisfied the tests for establishing that the court should assume jurisdiction based on the forum of necessity exception.

[38] In para. 17 of her reasons, Hoy A.C.J.O. noted that the doctrine of forum of necessity had been referred to by Sharpe J.A. in Van Breda v. Village Resorts Ltd. (2010), 98 O.R. (3d) 721, [2010] O.J. No. 402, 2010 ONCA 84, at para. 100:

The forum of necessity doctrine recognizes that there will be exceptional cases where, despite the absence of a real and substantial connection, the need to ensure access to justice will justify the assumption of jurisdiction. The forum of necessity doctrine does not redefine real and substantial connection to embrace "forum of last resort" cases; it operates as an exception to the real and substantial connection test. Where there is no other forum in which the plaintiff can reasonably seek relief, there is a residual discretion to assume jurisdiction.

[39] Hoy A.C.J.O. noted that on appeal to the Supreme Court of Canada, that court left open the possible application of the forum of necessity doctrine: Club Resorts Ltd. v. Van Breda, [2012] 1 S.C.R. 572, [2012] S.C.J. No. 17, 2012 SCC 17, at para. 100.

[40] At para. 20, Hoy A.C.J.O. noted that all jurisdictions in Canada that have recognized the forum of necessity have incorporated a "reasonableness" test. The plaintiff must establish that there is no other forum in which the plaintiff can reasonably seek relief.

[41] At para. 21, Hoy A.C.J.O. noted that the reasonableness requirement has been stringently construed. Only one Ontario court has assumed jurisdiction based solely on the forum of necessity doctrine, and elsewhere in Canada only the British Columbia Supreme Court has done so: Bouzari v. Bahremani, [2011] O.J. No. 5009 (S.C.J.); and Josephson (Litigation guardian of) v. Balfour Recreation Commission, [2010] B.C.J. No. 756, 2010 BCSC 603, 10 B.C.L.R. (5th) 369.

[42] At para. 22, Hoy A.C.J.O. referred to the Quebec Court of appeal decision in Lamborghini (Canada) Inc. c. Automobili Lamborghini S.P.A., 1996 QCCA 6047, [1996] J.Q. no 4175, [1997] R.J.Q. 58 (C.A.), where LeBel J.A., in describing the high bar that applies to art. 3136 of the Quebec Civil Code, stated, at paras. 44-47:

According to its legislative history, this provision represents a narrow exception to the usual rules governing jurisdiction. It is not intended to allow a Quebec court to seize a power that it would not otherwise possess. It is intended to settle issues of access to justice for a litigant on Quebec territory, when the foreign forum that would normally have jurisdiction is unavailable for exceptional reasons such as a nearly absolute legal or practical impossibility. This includes, for example, the breakdown of diplomatic commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court.

(Emphasis added)

[43] Ultimately, Hoy A.J.C.O. determined that the plaintiff, in West Van, did not meet the high bar required to establish that it was an exceptional case. The inability to obtain counsel, in the circumstances of that case, did not approach the situation in which a court might, on an exceptional basis, assume jurisdiction. At para. 40, she stated:

As Sharpe J.A. made clear in Van Breda, the forum of necessity is reserved for exceptional cases. LeBel J.A. explained in Lamborghini that the "reasonableness" requirement is very stringently construed. The examples of the exceptional reasons why a proceeding could be reasonably required in a foreign jurisdiction that he provided, while not exhaustive, are illustrative: "the breakdown of diplomatic or commercial relations with a foreign State, the need to protect a political refugee, or the existence of a serious physical threat if the debate were to be undertaken before the foreign court". It is this type of claim that prompted this court to recognize the forum of necessity: see Van Breda, at para. 54 (C.A.). The doctrine is designed for cases like Bouzari v. Bahremani, which are very different from the case at hand.

[44] In my view, the plaintiff has established that this is one of the exceptional cases in which the forum of necessity doctrine should be used. The plaintiff reasonably believes that his safety, indeed his life, would be in danger if he were to attempt to litigate this case in the United Arab Emirates. He has been subjected to threats, intimidation and coercion in the United Arab Emirates, which caused him to leave the country and come to Canada with his family as refugees. He reasonably believes that the government and royal family in Dubai have aligned themselves with Mr. Tarraf, such that he would not get a fair trial in the United Arab Emirates. His beliefs are reasonably supported by Amnesty International, an organization, of which I can take judicial notice, that has significant experience with and knowledge of adverse conditions in foreign countries.

[45] In my view, this case is very close to the examples mentioned by LeBel J.A. in Lamborghini that would justify resort to the forum of necessity doctrine, and I am satisfied that it should be resorted to here.

[46] For these reasons, I conclude that this court should exercise its residual discretion to assume jurisdiction based on the common law forum of necessity exception to the real and substantial connection test.

[47] Based on the uncontradicted evidence filed, I have no hesitation in concluding that the plaintiff has made out his case for damages. Judgment will issue in favour of the plaintiff in the amount of $16,500,000.

[48] I will entertain written submissions as to costs from Mr. Roefe, together with a bill of costs.

Motion granted.

End of Document