Smoke Gets In Your Eyes (and 40 Lashes and a Fine)

All PIA flights are Non-smoking.

All PIA flights are Non-smoking. (Photo credit: Wikipedia)

In Kazi v. Qatar Airlines, 2013 ONSC 1370 (CanLII), the plaintiff boarded Air Canada flight 856 travelling from Toronto Pearson Airport to London Heathrow, and thereafter boarding a connecting flight to Doha, Qatar on Qatar Airlines, with an ultimate destination of Dhaka, Bangladesh.

The trip was, to put it mildly, an eventful ride.

While flying from London to Doha cabin personnel accused the plaintiff of smoking in the airplane washroom. He alleges he was searched by flight attendants but they found no cigarettes or a lighter. The plaintiff then was offered by a glass of wine from a crew member, which he accepted.

The flight crew responded saying it was all a smokescreen and that the plaintiff was indeed smoking in the washroom, and, when confronted by the flight attendants, became belligerent and unruly. Security was then alerted and the the plaintiff was detained by airport security officials upon landing in Doha.

Here’s where the story takes a nosedive for the plaintiff:

[7] The plaintiff was ultimately charged with two offences under the laws of Qatar. The first was drinking wine while being a Muslim. The second was disturbing the peace due to his alcohol consumption.

[8] The plaintiff was incarcerated in Qatar from November 9, 2008 to January 2009. The plaintiff’s evidence is that on January 1, 2009, he was found “guilty as charged” and sentenced to receive 40 lashes and pay a fine in an amount equivalent to approximately $550.00 Canadian dollars.

[9] The plaintiff’s sentence was administered on January 5, 2009. He returned to Canada on or about January 11, 2009. The plaintiff alleges that as a result of the treatment and punishment he received while detained in Qatar, he suffered numerous injuries and damages. He states that he has had to take several medications and undergo various physiotherapy, cognitive and rehabilitation treatments. The plaintiff alleges that his enjoyment of life has been negatively affected as a result of the physical and psychological trauma he allegedly suffered while detained in Qatar. Finally, the plaintiff alleges that he has been unable to return to work since these events took place.

Ouch!

The defendants then brought a motion to stay the action based on forum non conveniens; having conceded jurisdiction simpliciter since Qatar Airlines has an office in Ontario and is registered to carry on business in Ontario.

 

The motion judge dismissed the defendants’ motion and held that Qatar was not clearly a more appropriate forum. Most of the applicable factors (see Van Breda v. Village Resorts Limited, 2010 ONCA 84 (CanLII) (Ont. C.A.) at para. 49, citing Muscutt v. Courcelles 2002 CanLII 44957 (ON CA) at para. 41) were either neutral, favoured the plaintiff or were inapplicable.

 

With respect to the factor of the possibility of conflicting judgments and problems related to the recognition and enforcement of judgments, the motion judge notes:

 

[24] Two factors raised by the defendants may possibly favour Qatar. They relate to the potential for conflicting decisions and problems connected to the recognition and enforcement of an Ontario judgment in Qatar. The defendants’ expert states that the enforcement of an Ontario judgment would be “very difficult”. His evidence is that the courts in Qatar may look beyond the judgment and require that there be a re-hearing of the entire matter. This would, of course, give rise to the possibility of a conflicting decision.

[25] First, I note that the defendants’ expert states that enforcement would be “very difficult”. He does not state that it would be unavailable. Second, it is not clear to me that it would even be necessary for the plaintiff to enforce any judgment in Qatar. Qatar Airlines has an office in Toronto and presumably carries on some form of business from that office. It may very well have assets in Ontario from which any potential judgment could be satisfied without the necessity of enforcement proceedings in Qatar. Moreover, there is no evidence before the court of whether Qatar Airlines has assets in other jurisdictions around the world where enforcement would be much easier. At the very least, we know that Qatar Airlines operates a flight from London to Doha. It is not a stretch to assume that a business such as the one operated by Qatar Airlines would have assets throughout the world.

[26] These factors are certainly a relevant consideration. They do marginally favour Qatar as the appropriate forum for this claim. However, it is my view that when they are balanced against the other relevant factors, they are not sufficient to tip the scale in favour of Qatar as the appropriate location for this dispute to be determined.

 

 It remains to be seen whether the The Montreal Convention, formally the Convention for the Unification of Certain Rules for International Carriage by Air, incorporated by the Canadian federal Carriage by Air Act, applies to this dispute.

 

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