Tuesday, March 26, 2013

Man can sue in Ontario for Lashes given in Qatar

Earlier this month, Master R.A. Muir, of the Ontario Superior Court of Justice, refused to stay an action commenced in Ontario by Fakhrul Islam Kazi against Qatar Airlines and others, as a result of his alleged treatment at the hands of officials in Qatar's criminal justice system. The Master found that the defendants had not met the burden of showing why the court should decline to exercise its jurisdiction and displace Ontario as the forum chosen by the plaintiff with another forum, i.e. Qatar.   

In the case (reported at Kazi v. Qatar Airlines, 2013, ONSC1370), the plaintiff boarded an Air Canada flight from Toronto to London's Heathrow airport. His ultimate destination was Dhaka, Bangladesh. However, his itinerary included a connecting flight between Heathrow to Doha, Qatar, on a flight operated by the defendant, Qatar Airlines.

During the course of the flight from London to Qatar, the plaintiff was involved in a dispute with members of the flight crew who alleged that he was smoking in a lavatory, consuming alcohol and behaving in an unruly and disruptive fashion. As a result, the flight crew notified airport security and the plaintiff was detained upon landing in Doha.

Mr. Kazi was charged with two offences under the laws of Qatar:

(a) drinking wine while being a Muslin; and

(b) disturbing the peace as a result of alcohol consumption.

Mr. Kazi was incarcerated in Qatar for almost two months. He was found guilty and sentenced to receive 40 lashes and pay a fine of approximately $550.

After returning to Canada, Mr. Kazi alleges that he suffered numerous injuries and damages as a result of his treatment while detained. He commenced a lawsuit against the defendants alleging that they had a duty to warn him of the prevailing laws of Qatar with respect to the consumption of alcohol by Muslims and that they had failed to take all reasonable steps to ensure that he was properly informed of such laws.

The defendants subsequently brought a motion seeking to stay the action on the basis that Qatar was the more appropriate forum in which to litigate the dispute.

In reviewing the law as set out by the Supreme Court of Canada's decision in Club Resorts Ltd. v. Van Breda, 2012, SCC17,  the Master concluded that Qatar was not clearly a more appropriate forum for disposing of the issues raised in the action. The Master reviewed factors such as the location of the witnesses and the expense required for them to travel to the place of trial and  the issue of the law to be applied to the claim, both of which he saw were neutral factors.  In applying the test set out in Van Breda, the Master reaffirmed that courts should use an analytical approach to establish the existence of a real and substantial connection between the case and  Ontario, and determine whether there was a similar connection to Qatar.  In this instance, the defendant had not shown that Qatar was clearly "in a better position to dispose fairly and efficiently of the litigation".

Regards,

Blair

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