Court of Appeal Overturns Motion Decision on Forum Non Conveniens

Andrew Ottaway, B.A. (Hons.), LL.B.Appeals, Jurisdictional Challenges, Of Interest to US Counsel0 Comments

In Bouzari v. Bahremani the Defendant Bahremani (the “Defendant”) had brought a motion to stay the Ontario action on the basis that Ontario was forum non conveniens.  The motion judge dismissed the motion, and the Defendant appealed to the Ontario Court of Appeal.

The Plaintiff had sued the Defendant for alleged events claimed were alleged to have taken place in Rome, Italy and Tehran, Iran.  The Plaintiff lived in Vienna, Italy and England, before moving to Canada.  The Defendant was a citizen of Iran, with no connection to Canada.  When the action was commenced, the Defendant was living in England.  By the time the Defendant commenced the forum non conveniens motion, the Defendant had returned to Iran and could not travel to Canada.  Also, the Defendant had previously attempted to obtain a visa to enter Canada unsuccessfully on two occasions.

The parties agreed that the action could not proceed in Iran.  The Defendant argued that England was a more appropriate forum than Ontario.   The motion judge disagreed.  The Court of Appeal, on the other hand, agreed that England was a more appropriate forum.  The Court of Appeal stated that, although the motion judge’s decision was discretionary and was owed deference, the motion judge had made two significant errors: 1) the motion judge disagreed that the Defendant’s past inability to enter Canada meant that the Defendant would be unable to enter Canada in the future.  The Court of Appeal found that the only reasonable conclusion was that the Defendant would not be allowed to enter Canada; 2) the motion judge had found that the Defendant had not proved that the laws of Ontario were as favorable to the Plaintiff as English law.  The Court of Appeal held that it was not the Defendant’s burden to prove that English law was as favorable as Canadian law.

The Court of Appeal conducted its own forum non conveniens analysis, and found that Ontario was forum non conveniens.  The Court considered that the Defendant had no connection to Ontario and could not enter Canada to participate in the proceedings; on the other hand, he had property in England and resided there before the motion; all of the witnesses but one resided outside of Canada; the Defendant had consented to the action proceeding in England; while the Defendant was unable to travel to England or Ontario at the time of the motion, it was more likely that he would be able to attend Trial in England than Ontario.   As a result, the Court of Appeal stayed the Ontario action.

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About the Author
Andrew Ottaway, B.A. (Hons.), LL.B.

Andrew Ottaway, B.A. (Hons.), LL.B.

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