Iran’s public rejection of two proposed Canadian class-action lawsuits over the downing of Flight PS752 could help victims’ families in their battle for compensation, said a lawyer representing plaintiff’s in Canada.
A spokesperson for Iran’s foreign minister, Saeed Khatibzadeh, said on Friday “the Canadian court has no jurisdiction” in the case and all “judicial proceedings will be conducted inside Iran,” according IRNA, an Iranian state news agency.
The class-action lawsuits, which have not yet been given the go-ahead by a judge, are seeking financial compensation and other damages from Iran, which admitted its military forces mistakenly shot down Ukraine International Airlines Flight PS752 shortly after takeoff from Tehran on Jan. 8, killing everyone onboard.
Mark Arnold, the lawyer behind one of the suits, said the case is indeed within the Canadian court’s jurisdiction based on the Justice for Victims of Terrorism Act that came into force in 2012, which allows victims to sue perpetrators of terrorism and their supporters, including.foreign states. If Tehran chooses not to file a defence by Oct. 30, the Ontario Superior Court of Justice could deem Tehran in default, he said, opening the door for the plaintiffs’ lawyers to seek a default judgment, meaning the victims’ families could win based on Iran’s failure to respond.
“I would prefer if Iran would defend the claim,” said Arnold. “If they did, we would have access to all of their documents surrounding this terrible tragedy.
“If they don’t defend, they are deemed under the procedural rules in Ontario to admit the truth of all the facts set out in the claim. The truth of the facts are that we allege that the shooting of two missiles at this aircraft is an act of terrorism.”
None of the claims have been proven in court.
Competing legal claims
Canada’s federal government served Iran with two proposed class-action lawsuits on Sept. 1 after several months of delay, as first reported by the National Post.
The federal government has to serve suits to Iran under Ontario law since a foreign country is named as a defendant.
The two lawsuits are different in their approaches and are competing to try and win compensation for victims’ families from Iran, the Islamic Revolutionary Guard Corps and other Iranian officials.
The lawsuit Arnold is representing alleges the downing of the plane is a “terrorist act” because two missiles hit the plane 25 seconds apart.
The other suit, proposed by Toronto-based attorney Tom Arndt, alleges it was negligent for Iran to shoot down the plane. It’s also seeking damages from Ukraine International Airlines. The airline served a notice of intent on Feb. 28 to defend itself against the proposed class action.
Arndt said he has not received a formal response from Iranian defendants regarding the lawsuit and there have been inconsistencies in news reports from Iran in the past. Along with the airline, his proposed suit names Iran and the Islamic Revolutionary Guard Corps.
“We will address those issues if and when appropriate in court,” Arndt said.
The court will decide in February 2021 whether it will certify the lawsuits. Lawyers for the plaintiffs in one of the lawsuits said if the case goes ahead, they will be bringing in experts to determine what kinds of damages the suit will seek from Iran.
It’s unclear how plaintiffs would collect those damages in the event of a successful claim.
Payam Akhavan, a professor of international law and senior fellow at the University of Toronto, said “it would be quite difficult but not impossible” to get Iran to pay if the plaintiff’s won the lawsuit.
He said it would be necessary to identify assets belonging to the Iranian government in Canada or in another jurisdiction that would be willing to enforce judgments of the Canadian court.
Arnold said he has been involved in several prior lawsuits against Iran, and said in those cases Iran did not file a defence but later sent a lawyer to appear in court to beat back a default judgment. In the case of Tracy v Iran, involving a group of lawyers with individual claims arising from separate terror-related incidents, the courts ordered the seizure and sale of all non-diplomatic property of Iran in Canada, which brought in approximately $30 million, Arnold said.
‘Without them I feel the whole world is shattered’
Habib Haghjoo lost his daughter, Saharnaz Haghjoo, and nine-year-old granddaughter Elsa Jadidi on the flight. He’s involved in one of the lawsuits in an effort to put pressure on Iran to take responsibility.
“They are my loved ones, without them I feel the whole world is shattered for me,” said Haghjoo. “I don’t really want to live. The only reason I’m breathing is because I want justice.”
He said he thought the pain would get easier with time but it’s only getting worse. For him, the lawsuit isn’t about the money, it’s about seeking justice. He also wants the international community to condemn Iran for downing the plane.
“I want to know the truth,” he said. “Otherwise, how can I have closure?”
In July, a group representing countries who lost citizens on Flight PS752 had their first meeting with Iranian officials to start negotiations about reparations for families.
Victims’ families in Canada have already received a one-time $25,000 payment each from the federal government for immediate support, including the costs of repatriating loved ones. Global Affairs Canada told CBC News it has paid out more than $2.1 million in financial assistance.
The government also matched donations for a total of $3.3 million for victims’ families to “navigate through the long-term impacts of these tragic losses,” according to the government’s website.
After months of mounting international pressure, Iran sent the plane’s black boxes to France in July to be analyzed and downloaded since it didn’t have the capabilities. The head of Iran’s Civil Aviation Organization said there was a 19-second conversation following the first missile hitting the aircraft. The second missile hit the plane 25 seconds later. The first explosion sent shrapnel into the plane. There were no other details about what audio the cockpit captured.
Several Canadian MPs said the preliminary report was “limited,” and only “select information was provided.” They demanded more answers.