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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 [2012] 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 [1957] 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
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