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 plaintiffs in Canada.
A spokesperson for Iran’s foreign minister, Saeed Khatibzadeh, said on Friday that “the Canadian court has no jurisdiction” in the case and all “judicial proceedings will be conducted inside Iran,” according to 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 lawsuits, said the case is indeed within the Canadian court’s jurisdiction based on the Justice for Victims of Terrorism Act — which came into force in 2012 and 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 find Tehran in default, Arnold 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
As first reported by the National Post, Canada’s federal government served Iran with two proposed class-action lawsuits on Sept. 1 after several months of delay.
The federal government has to serve lawsuits 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 win compensation for victims’ families from Iran, the Islamic Revolutionary Guard Corps and other Iranian officials.
The lawsuit Arnold is representing alleges the plane’s destruction was a “terrorist act” because two missiles hit the plane 25 seconds apart.
The other lawsuit, 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 the Iranian defendants to the lawsuit and there have been inconsistencies in news reports from Iran in the past. Along with the airline, his proposed lawsuit 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 recommend the 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 plaintiffs 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. In those cases, he said, 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.
‘The whole world is shattered’
Habib Haghjoo lost his daughter, Saharnaz Haghjoo, and nine-year-old granddaughter Elsa Jadidi on the flight. He’s taking part in one of the lawsuits in order 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 gotten worse. He said he’s pursuing justice, not money, and he wants the international community to condemn Iran for shooting down 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 already have each received one-time payments of $25,000 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. No other details have been offered 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.