Bouzari et al. v. Bahremani et al., 2015 ONCA 275

• Judge: Juriansz, Rouleau and van Rensburg, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 23, 2014
• Jurisdiction: Ontario
• Citations: 2015 ONCA 275;(2015), 331 O.A.C. 344 (CA)

Bouzari v. Bahremani (2015), 331 O.A.C. 344 (CA)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. AP.026

Houshang Bouzari, Fereshteh Yousefi, Shervin Bouzari and Narvan Bouzari (plaintiffs/respondents) v. 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 )

(C58082; 2015 ONCA 275)

Indexed As: Bouzari et al. v. Bahremani et al.

Ontario Court of Appeal

Juriansz, Rouleau and van Rensburg, JJ.A.

April 21, 2015.

Summary:

Bouzari was a former Iranian national who was now a Canadian citizen and resident of Ontario. He alleged that in 1993, the defendant, Mehdi Hashemi Bahremani ("Hashemi"), and his co-defendants compelled Bouzari's abduction, incarceration, and torture in Iran. In 2005, Bouzari, his wife, and children (the plaintiffs) commenced proceedings against Hashemi and others in the Ontario Superior Court. The action was not defended. In 2011, the plaintiffs obtained default judgment against Hashemi. Hashemi moved to set aside the default judgment. The motion was granted on consent, with terms permitting Hashemi to move to challenge the forum. 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. However, by the time the forum non conveniens motion was argued, Hashemi had voluntarily returned to Iran to face prosecution, and was unable to leave that country.

The Ontario Superior Court, in a decision reported at [2013] O.T.C. Uned. 6337, dismissed the motion to stay the proceedings commenced in Ontario on the basis of forum non conveniens. Hashemi appealed.

The Ontario Court of Appeal allowed the appeal. The motion judge made certain errors of fact which informed the exercise of her discretion. After considering all of the relevant factors, the court concluded that Hashemi had met the burden of establishing that England was a more appropriate forum for the litigation. The plaintiffs' action in Ontario was stayed so that proceedings could be pursued by the plaintiffs in England.

Conflict of Laws - Topic 1664

Actions - General - Forum conveniens - Considerations - Bouzari was a former Iranian national who was now a Canadian citizen and resident of Ontario - He alleged that in 1993, the defendant, Mehdi Hashemi Bahremani ("Hashemi"), and his co-defendants compelled Bouzari's abduction, incarceration, and torture in Iran - In 2005, Bouzari, his wife and children (the plaintiffs) commenced proceedings against Hashemi and others in the Ontario Superior Court - The action was not defended - In 2011, the plaintiffs obtained default judgment against Hashemi - Hashemi moved to set aside the default judgment - The motion was granted on consent, with terms permitting Hashemi to move to challenge the forum - 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 - However, by the time the forum non conveniens motion was argued, Hashemi had voluntarily returned to Iran to face prosecution, and was unable to leave that country - The motion judge dismissed the motion to stay the proceedings commenced in Ontario on the basis of forum non conveniens - Hashemi appealed - The Ontario Court of Appeal allowed the appeal - 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 might deprive the plaintiffs of certain rights - After considering all of the relevant factors, the court concluded that Hashemi had met the burden of establishing that England was a more appropriate forum for the litigation - The plaintiffs' action in Ontario was stayed so that proceedings could be pursued by the plaintiffs in England.

Cases Noticed:

Bouzari et al. v. Islamic Republic of Iran, [2002] O.T.C. 297 (Sup. Ct.), affd. (2004), 220 O.A.C. 1; 71 O.R.(3d) 675 (C.A.), leave to appeal refused (2005), 337 N.R. 190 (S.C.C.), refd to. [para. 2, footnote 1].

Van Breda et al. v. Village Resorts Ltd., [2012] 1 S.C.R. 572; 429 N.R. 217; 291 O.A.C. 201; 2012 SCC 17, refd to. [para. 20].

Club Resorts Ltd. v. Van Breda - see Van Breda et al. v. Village Resorts Ltd.

Prince et al. v. ACE Aviation Holdings Inc. et al. (2014), 319 O.A.C. 163 (C.A.), refd to. [para. 46].

Counsel:

No one appearing for the appellant;

Mark H. Arnold, for the respondents.

This appeal was heard on October 23, 2014, before Juriansz, Rouleau and van Rensburg, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was released on April 21, 2015.