Fresh analysis on appeal revealed that England was more appropriate forum

Ontario civil | Courts

JURISDICTION

Fresh analysis on appeal revealed that England was more appropriate forum

Respondents, HB, his wife and children, alleged that appellant MB and co-defendants compelled HB’s abduction, incarceration and torture in Iran. Respondents commenced proceedings and obtained default judgment. Superior Court took jurisdiction as forum of necessity. MB’s motion to set aside default judgment granted on consent, with terms permitting MB to challenge forum. Parties agreed it was impossible to litigate in Iran but MB, citizen of Iran living and studying in England, asserted Ontario action should be stayed in favour of England. By time motion argued, MB voluntarily returned to Iran to face prosecution and unable to leave. Respondents were Canadian citizens who immigrated after leaving Iran and living in England for three years. HB and his wife had business interests in England, owned property there and travelled there from time-to-time. MB claimed he had no connection with Canada and had been denied visas to enter and/or visit Canada. Motion judge dismissed motion to stay Ontario proceedings, finding MB had not met burden of proving England was clearly more appropriate forum. Appellants’ appeal allowed. MB’s sole objection was that Ontario was not forum conveniens. MB’s efforts to obtain temporary visa to enter Canada for purpose of defending action, as well as efforts to obtain short-term special ministerial visa or permit were unsuccessful. Evidence supported inference he would be denied entry to Canada in future and motion judge erred in finding otherwise. Her conclusion on important issue of MB’s ability to defend himself in each country turned on faulty reasoning. Motion judge concluded that deferring to English court might deprive respondents of certain rights and noted that respondents relied on Canadian law, including international covenants ratified by Canada, while MB provided no evidence that international covenants relied on by respondents had been adopted under English law. However, it was not MB’s burden to prove that English law would afford same benefits as Canadian law. Fresh analysis of forum non conveniens question revealed that objectives of ensuring fairness and providing efficient process for resolving dispute would be better met through litigation in England. Although respondents resided in, and preferred to litigate in, Canada, MB had no connection to or ability to enter Canada. Both parties had some connection to England. With one exception, all witnesses other than respondents resided outside of Canada. MB consented to action proceeding in England. England was more appropriate forum; Ontario action stayed.
Bouzari v. Bahremani (Apr. 21, 2015, Ont. C.A., R.G. Juriansz J.A., Paul Rouleau J.A., and K. van Rensburg J.A., File No. CA C58082) Decision at 235 A.C.W.S. (3d) 936 was reversed.  252 A.C.W.S. (3d) 249.

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