



COURT OF APPEAL FOR ONTARIO

CITATION: Bowles v. Al Mulla Group, 2020 ONCA 761

DATE: 20201202

DOCKET: C68342

Fairburn A.C.J.O., Pepall and Roberts JJ.A.

BETWEEN

Samih Mouris Toudrous Bowles

Plaintiff (Appellant)

and

Al Mulla Group and
    Anwar Abdulla Al Mulla and Ahli
United Bank K.S.C.P.

Defendants (Respondents)

Menreet Salama and Peter Karam, for the appellant

George J. Karayannides and Mark C. Mandelker, for the respondents

Heard: November 13, 2020 by videoconference

On appeal from the order of
    Justice David E. Harris of the Superior Court of Justice, dated April 21, 2020,
    with reasons at 2020 ONSC 2453.

REASONS FOR
    DECISION

[1]

Following a motion brought by the respondents, the appellants action
    was stayed for want of jurisdiction on the basis that it has no real and
    substantial connection to Ontario.

[2]

In his action initiated on May 14, 2018, the appellant seeks substantial
    damages against the respondents, including $150 million in general damages and
    $100,000 in punitive damages. The respondents are all resident in Kuwait with
    no assets or presence in either Ontario or Canada.

[3]

Beginning in May 2006, the appellant was employed by a subsidiary of
    Bader Al Mulla, one of the respondents, as a used car appraiser. By January
    2009, his employment was terminated. He alleges that he was asked by his employer
    to falsify documents that would be used by his employer to construct a defence
    to an action relating to vehicles sold to a Kuwaiti individual. The appellant refused
    to participate in this alleged fraudulent scheme.

[4]

As a result of his refusal, the appellant claims that between January
    2009 and August 2017, through a conspiracy carried out by the respondents, the
    police, and the Royal Family of Kuwait, he was arrested, beaten, and tortured
    in Kuwait, thereby suffering severe, permanent, and life-altering injuries. He
    says that in August 2017, he fled Kuwait with his family and was granted
    refugee status in Canada. He further claims he cannot return to Kuwait out of
    fear for his life because of the respondents who have allegedly made threats
    through a Twitter account and sent threatening text messages to the appellant
    in Canada.

The Forum of Necessity Doctrine

[5]

While the appellant concedes that his action has no real and substantial
    connection to Ontario, he submits the motion judge erred by failing to assume
    jurisdiction in accordance with the forum of necessity doctrine, which is also
    known as the forum of last resort:
Van Breda v. Village Resorts Limited
,
    2010 ONCA 84, 316 D.L.R. (4th) 201, at paras. 54, 100, affd on other grounds
    2012 SCC 17, [2012] 1 S.C.R. 572. The appellant says that the motion judge erred
    by failing to consider his refugee status and the threat to his safety if he
    were to pursue his claim in Kuwait.

[6]

We do not accept these submissions. The motion judge correctly
    considered and applied the forum of necessity doctrine to the evidentiary
    record before him and declined to exercise his discretion to assume
    jurisdiction. Absent a misdirection, a lack of weight given to relevant
    considerations, or a decision so clearly wrong amounting to an injustice, the
    motion judges discretionary decision is entitled to deference on appeal:
Ibrahim
    v. Robinson
, 2015 ONCA 21, 380 D.L.R. (4th) 306, at para. 12, citing
Penner
    v. Niagara (Regional Police Services Board)
, 2013 SCC 19, [2013] 2 S.C.R.
    125, at para. 27;
Arsenault v. Nunavut
, 2016 ONCA 207, at para. 4.

[7]

As the motion judge correctly noted, the forum of necessity
    doctrine operates as an exception to the real and substantial connection test
    in extraordinary circumstances where there is no other forum in which the
    plaintiff can reasonably seek relief:
Van Breda
, at para. 100;
West
    Van Inc. v. Daisley
, 2014 ONCA 232, 372 D.L.R. (4th) 613, at paras. 20,
    40, leave to appeal refused, [2014] S.C.C.A. No. 236;
Forsythe v. Westfall
,
    2015 ONCA 810, 393 D.L.R. (4th) 141, at paras. 53, 55, leave to appeal refused,
    [2015] S.C.C.A. No. 460. It allows courts a residual discretion to assume
    jurisdiction where, despite the absence of a real and substantial connection,
    there is the need to ensure access to justice:
Van Breda
, at para. 100.
    It is well established that this doctrine is very stringently construed and reserved
    for exceptional cases, and therefore typically unavailable because of its high
    bar:
West Van Inc.
, at para. 40;
Forsythe
, at para. 55.

The Alleged Physical Threat to the Appellants Safety

[8]

The onus was squarely on the appellant to establish through cogent
    evidence that his was an exceptional case justifying the courts rare assumption
    of jurisdiction on the basis of the forum of necessity doctrine:
West Van
    Inc.
, at para. 39. As he was entitled to do, the motion judge simply did
    not accept the adequacy of the appellants evidence in support of his assertion
    that the forum of necessity doctrine applied.

[9]

First, the motion judge determined that there was no cogent corroborating
    evidence of the appellants alleged atrocious injuries or of his assertions of
    harm caused by the respondents, which one would expect given the nature of the alleged
    harm. Second, the motion judge could not find any credible evidence that the threats
    via Twitter and the threatening text messages emanated directly or indirectly from
    the respondents and therefore gave them no weight. Third, he also observed that
    the appellant had achieved partial success in the proceedings that he had instigated
    in Kuwait before his departure for Canada, including for loss of his employment.

[10]

As
    a result, the motion judge was not persuaded that the forum of necessity doctrine
    should be invoked to assume jurisdiction over the appellants claims. We see no
    reason to interfere with his conclusion.

The Appellants Refugee Status

[11]

We
    are not persuaded by the appellants submission that the motion judge erred in
    failing to take into account his refugee status in Canada. The motion judge
    expressly referenced the fact that the appellant came to Canada as a refugee.
    However, the appellants refugee status was not determinative of whether the
    motion judge should exercise his discretion and assume jurisdiction in
    accordance with the forum of necessity doctrine. It was only one factor among
    several in the analysis of all the relevant circumstances that the motion judge
    considered.

[12]

Moreover, before the motion judge, other than his own evidence,
    the appellant produced no documentation that revealed the basis for his refugee
    status.
Self-serving affidavits with nothing more are
    insufficient to invoke the application of such an extraordinary order: see
Guarantee
    Co. of North America v. Gordon Capital Corp.
, [1999] 3
    S.C.R. 423, at para. 31.
In answer to his undertaking given on cross-examination
    dated January 10, 2020, the appellant apparently produced some documentation
    concerning his refugee status on November 9, 2020; however, this was long after
    the motion had been argued and disposed of. The appellant did not seek to submit
    the documentation as fresh evidence on his appeal.

[13]

Lastly,
    we note that while the appellants passport was in fact returned to him in
    2009, he did not leave Kuwait for Canada until August 2017 and until the
    conclusion of his various legal proceedings in Kuwait in which he was seeking
    compensation and was represented by counsel.

[14]

We
    see no error in the motion judges decision warranting appellate intervention.

Disposition

[15]

Accordingly,
    the appeal is dismissed.

[16]

The
    respondents are entitled to their partial indemnity costs in the amount of $12,000,
    inclusive of disbursements and applicable tax.

Fairburn A.C.J.O.

S.E. Pepall J.A.

L.B. Roberts J.A.


