Iran must pay $107-million to some victims’ families over downing of Ukrainian jet, Ontario court rules

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An Ontario judge has awarded $107-million to families of six victims of Iran’s 2020 shoot-down of a Ukraine International Airlines jet in a precedent-setting case that determines a price for state-sponsored terrorism against Canadians.

The ruling “establishes in Canada that you cannot perpetrate a terrorist act against Canadian citizens, and if you do, you’re going to pay,” Mark Arnold, a lawyer for the plaintiffs, said in an interview.

But whether the plaintiffs will be able to collect from defendants, including Iran, the Islamic Revolutionary Guard Corps and Supreme Leader Ayatollah Ali Khamenei, is unknown. Billions of dollars in past judgments against Iran in U.S. courts “remain outstanding, many of which will probably never be enforced,” Ontario Superior Court Justice Edward Belobaba wrote in his ruling, released Monday.

Nonetheless, Mr. Arnold said he was “100 per cent” sure the award could be collected in full as he claimed to have “full knowledge of other Iranian assets in Canada and worldwide.” Mr. Arnold said a past client had successfully recovered Iranian assets in another case against Iran five years ago. “Once the dust settles, we will be going after everything and anything owned by Iran for recovery.”

On Jan. 8, 2020, two Iranian anti-aircraft missiles struck Ukraine International Airlines Flight 752 shortly after takeoff from Tehran. There were 176 people on board, including 55 Canadian citizens, 30 permanent residents and 53 others – most of whom were travelling to Canada via Ukraine. All died.

Iran’s non-arm’s-length civil aviation authority last year reported the jet was hit by the country’s air-defence systems, which the government said were on high alert amid tensions with the United States. The authority blamed human error. But families of victims and governments in Canada and other affected countries – Britain, Ukraine, Afghanistan and Sweden – rejected the report as incomplete and pressed for a full, international investigation, which Iran has blocked.

Last June, a Canadian government forensic report blamed the disaster on “recklessness, incompetence and wanton disregard for human life” by Iranian authorities. The report didn’t accuse Iran of shooting down the plane on purpose. But then-foreign affairs minister Marc Garneau stated, “Iran is responsible for the deaths of 176 innocent people,” and had engaged in a cover-up.

The Ontario case is one of several legal pursuits related to the incident and the first to yield a judgment and penalty. Justice Belobaba last May ruled that, “on a balance of probabilities,” Iran was liable for downing the passenger jet, that the attacks were “intentional” and that the act constituted terrorist activity. Iran didn’t defend itself in the case.

In his new decision, he awarded a combined $6-million to families of victims Arad Zarei, Shakiba Feghahati, Rosstin Moghaddam, Pouneh Gorji and two others identified as John Doe and Jane Doe for pain and suffering and $1-million for loss of guidance, care and companionship.

The balance – $100-million – reflected the judge’s effort to establish punitive damages, which he wrote is believed to be the first time a Canadian court had determined a financial penalty for loss of life caused by terrorism. He noted that past awards in the U.S. for terrorist attacks have ranged into the hundreds of millions of dollars and even above US$1-billion based on multiples of how much Iran is believed to spend on terrorism. But he noted that U.S. courts had moved away from the approach as it was unlikely to have a meaningful deterrent effect.

Instead, he chose to apply a “proportionate” damages award deemed “only as large as rationally necessary to achieve the objectives of retribution, deterrence and denunciation.” He determined an appropriate range of $10-million to $16-million per plaintiff, settling on the high end to achieve the underlying purpose and rationale: to punish, deter and condemn the defendant state’s “highly reprehensible misconduct.”

The case affects a small group of victims’ families; others are parties to two other class-action suits, and more than 100 belong to the Association of Families of Flight PS752. Ryan Lax, a legal adviser to the group, said of the Ontario ruling: “We welcome any effort to hold the government of Iran to account,” but added, “we see it as one step in a much larger picture and the most important steps are still to come for truth, accountability and justice.”

Canada and the other affected countries have pressed Iran to negotiate reparations and served it with a notice of claim last June. Iran refused to meet the group, and last month the countries gave it until Wednesday to commit to meetings this month. If that doesn’t happen the countries will “have to assume that further attempts to negotiate reparations with Iran are futile” and will “seriously consider other actions to resolve this matter within the framework of international law,” the Government of Canada stated last month.

A spokeswoman for Foreign Affairs Minister Mélanie Joly said in an e-mail, “Canada remains committed to seeking answers and pursuing justice for this tragedy for the victims and their families.”

Mr. Lax expressed frustration about the situation, saying, “We need to see the pace of things pick up. … It’s time to see more action, and soon.”

Mr. Arnold, meanwhile, criticized the Canadian government for being “opaque, unlawful and unhelpful” with his case, adding it had “failed” in attempts to negotiate with Iran. “None of [its efforts] have borne any fruit. … Right now [Justice Belobaba’s ruling] is all that we have.”