



COURT OF APPEAL FOR ONTARIO

CITATION: Bouzari v.
    Bahremani, 2015 ONCA 275

DATE: 20150421

DOCKET: C58082

Juriansz, Rouleau and van Rensburg JJ.A.

BETWEEN

Houshang
    Bouzari, Fereshteh Yousefi, Shervin Bouzari and

Narvan Bouzari

Plaintiffs (Respondents)

and

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

Defendants (
Appellant
)

No one appearing for the appellant

Mark H. Arnold, for the respondents

Heard: October 23, 2014

On appeal from the order of Justice Andra Pollak of the Superior
    Court of Justice, dated December 11, 2013, with reasons reported at 2013 ONSC
    6337.

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 Bouzaris abduction, incarceration, and torture in
    Iran. The action underlying this appeal is the respondents second attempt to
    sue for Bouzaris torture in Iran.
[1]

[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.).

[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 Irans
    South Pars gas field. The respondents allege that Hashemi and the other
    defendants were involved in requesting the bribe and Bouzaris 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 Bouzaris 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), 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 Irans 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 Irans
    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 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.

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 Limited v. Van Breda
,
    2012 SCC 17, [2012] 1 S.C.R. 572, 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 Bouzaris 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 barristers 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 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 Hashemis 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 Canadas and Englands immigration
    laws, she refused to accept Hashemis 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 Hashemis 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 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 [Hashemis] prosecution, contrary to Irans
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, Hashemis 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 Irans public prosecutors
    office. On July 11, 2014, Hashemi delivered a notice of intention to act in
    person in this court, with his Iranian counsels 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, Hashemis Iranian lawyer confirmed that
    the existing barriers on Hashemi remained in place, and that without permission
    from Irans public prosecutors office, he could not 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.

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 appellants 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 judges decision deals only with that issue. The
    appellants 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 judges 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 Hashemis relative ability to
    travel to England and to Canada to defend proceedings.

[40]

Hashemis
    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 Hashemis 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:

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 judges
    conclusion on an important factor - Hashemis 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 Hashemis 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 Hashemis 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 systems of other countries, many of which have
    the same basic values as us:
Prince v. ACE Aviation Holdings Inc
.,
    [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 appellants
    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, 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 partys 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 judges 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.

Released: April 21 2015

(RGJ)                                                                           
    R.G. Juriansz J.A.

Paul Rouleau J.A.

K. van Rensburg J.A.





[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. This court upheld the dismissal,
    and the Supreme Court denied leave to appeal: (2004), 71 O.R. (3d) 675 (C.A.),
    leave to appeal to S.C.C. refused, [2004] S.C.C.A. 410.


