The recent Ontario Court of Appeal decision in Bouzari v.Bahremani 2015 ONCA 275 will be troubling, in two respects, to plaintiffs facing a motion for a stay based on forum non conveniens, particularly in human rights cases.
First, a brief synopsis of the case. Bouzari sued for damages for kidnapping, false imprisonment, assault, torture and death threats all alleged to have occurred in the Islamic Republic of Iran and in Rome, Italy. The principal defendant, Mehdi Hashemi Bahremani, a.k.a. Rafsanjani* was an Iranian citizen who had moved to the United Kingdom to study after the alleged torts, but who had returned to Iran to face prosecution and was unable to leave Iran. Both sides acknowledged that the case could not be tried in Iran. The Ontario court had jurisdiction under the doctrine of forum of necessity. Bahremani moved for a stay, arguing the case ought to be tried in the United Kingdom. The motion court dismissed his motion, but the Court of Appeal reversed, ruled that England is a more appropriate forum, and stayed the proceeding. The ruling was based, not on any jurisdictional connection to England, but only on the grounds that the plaintiffs and Bahremani had ties to England (the plaintiffs have business interests and property there and travel there from time to time, and Bahremani had been living and studying there), and that Bahremani had been denied entry into Canada.
The ruling is problematic in two respects. One is that the defendant was not required to show that the British courts would take jurisdiction. The second is that the defendant was not required to show that the law of the foreign forum will provide the plaintiff the same benefits as the domestic law. Instead, if going to the foreign forum will cause the plaintiff a loss of juridical advantage, it is up to the plaintiff to prove that.
The Supreme Court of Canada provided guidance regarding forum non conveniens in Club Resorts v. Van Breda  1S.C.R. 572. “[The purpose of the forum non conveniens doctrine] is to ensure that both parties are treated fairly and that the process for resolving their litigation is efficient” (para 105). “[The] courts have held that the party must show that the alternative forum is clearly more appropriate” (para 108).
Turning now to the first concern, the British courts’ jurisdiction, plainly the foreign forum cannot be an appropriate forum, let alone a clearly more appropriate forum, if the courts there will not, or might not, take jurisdiction over the case. For that reason, as the Supreme Court of Canada stated in Club Resorts, if a defendant raises forum non conveniens, he “must identify another forum that has an appropriate connection under the conflicts rules and that should be allowed to dispose of the action. The defendant must show, using the same analytical approach the court followed to establish the existence of a real and substantial connection with the local forum, what connections this alternative forum has with the subject matter of the litigation” (para 103). However, there was no real and substantial connection nor other grounds for the British courts to assume jurisdiction. The case pertains to torts occurring in Iran and Italy. The Canadian court assumed jurisdiction based on the doctrine of forum of necessity. This doctrine is very new to Canadian law. The defendant ought to have been, but was not, required to show that the British law also has a similar doctrine of forum of necessity, or that on some other ground British courts could take jurisdiction. As of last month, no proceeding has yet been commenced in England, and so no British ruling on jurisdiction has been made.
This concern about jurisdiction goes beyond forum of necessity cases. The Supreme Court says that the question of whether the foreign court can take jurisdiction is to be determined using Canada’s real and substantial connection analysis. But the foreign court will decide whether to take or not take jurisdiction based on the foreign law. To avoid a situation where after a Canadian court has stayed an proceeding the foreign court does not take jurisdiction, it makes sense to require the defendant/moving party to show that the foreign court would in fact take jurisdiction. This would entail showing that under the law of that foreign jurisdiction, their courts have jurisdiction.
Imagine the wasted costs and unfairness to the plaintiff if, after a forum non conveniens motion results in a stay, the foreign court will not take jurisdiction. Substantial legal costs will have been incurred, and wasted, not only for the litigation in that foreign jurisdiction, but also for the forum non conveniens motion that led to that foreign litigation.
Regarding juridical advantage, the plaintiff bases his claim in part on rights established in the International Covenant on Civil and Political Rights and in the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, namely the right not to be subjected to cruel, inhuman, or degrading treatment or punishment. The motion court had cited as one reason to dismiss Bahremani’s motion the fact he had not shown that those treaties had been adopted under English law. The Court of Appeal ruled that it is for the plaintiff to prove that differences in English law would disadvantage the plaintiff. This is at odds with the fact the defendant bears the burden to show the foreign jurisdiction is more appropriate. What is appropriate surely must be determined having regard for the purpose of the doctrine of forum non conveniens, i.e. to “ensure that both parties are treated fairly”. Applying the law of a foreign forum might mean part or all of a claim is not recognized. How could that be fair?
In proving foreign law, the presumption of similarity means that a Canadian court will presume the foreign law is the same as Canadian law, unless proven otherwise. No one raised this presumption in Bouzari. Moreover, the presumption applies “only to the general law, and does not extend to the special provisions of particular statutes altering the common law”: Gray v. Kerslake  S.C.J. No. 62. Thus the presumption would not apply if a British statute established forum of necessity. As well, even absent such a statute, the presumption ought not apply insofar as the doctrine of forum of necessity is very new to Canadian law, has yet to be fully fleshed out, and thus might not exist in English law. Nor would the presumption apply to the matter of whether those international treaties had been adopted into British law.
The Court of Appeal noted that the plaintiff had not shown which law – the law of Canada, of England, or the law of Iran -- the English court would apply (para. 44-45). This issue too would bear on whether England would be an appropriate forum. Indeed, the question of which country’s law to be applied is one of the factors listed in Club Resorts for consideration in a forum non conveniens analysis (para. 105) . How could Bahremani succeed without having addressed it? As well, it is very likely that the English law would be applied in this case. Once the case is moved to England, there would no longer be much basis for applying Canadian law, and there is no indication that either side wanted the law of Iran to apply.
To conclude, there are two main take-aways. One, the defendant moving party ought to have to show the proposed foreign court would in fact take the case, based on the foreign law regarding jurisdiction, be it forum of necessity or jurisdiction simpliciter. It is risky to make this determination using the domestic law of jurisdiction. Two, going back to first principles of forum non conveniens, to meet the burden of showing that the foreign forum is appropriate, the moving party ought to have to show it would be fair to the plaintiff, having regard for the law that would be applied in that forum.
*He is the son of the former president of Iran