At issue is the safety of families and viability of recovering compensation
With families facing threats from the Iranian government and the unlikelihood of ever collecting compensation from the country, it is a mistake to include the Iranian regime in the Ukrainian International Airlines Flight 752 class action, says Paul Miller, head of mass torts at Howie Sacks and Henry LLP.
Miller believes a better route is to allow the Canadian Government to assert a state-to-state claim against the Islamic Republic of Iran and Islamic Revolutionary Guard, while seeking compensation for the class only from Ukrainian International Airlines. He says there is little chance of suing Iran and getting a judgment. And with no assets in Canada, nor any diplomatic relationship between the two countries, the judgment cannot be enforced.
“There is no doubt that the hurt and anger that the families feel against the Iranian Regime is unimaginable,” says Miller. “The acts of Iran do need to be addressed. It is our view that it is a serious mistake to sue the Iranian Regime on behalf of families, especially those who have families still in Iran. The Iranian Regime has threatened family members in Iran if they are part of a lawsuit against the country.”
On Jan. 8, 2020, 176 people were killed when Iran’s Revolutionary Guard Corps shot down a passenger airplane headed to Kiev, shortly after it took off from Tehran’s Imam Khomeini International Airport. Of the victims, 138 had ties to Canada and 57 were Canadians.
On Feb. 22, Superior Court Justice Benjamin Glustein certified the proposed class action brought on behalf of the families of victims. In December, the court had awarded carriage to a team led by class actions and civil litigation lawyer Tom Arndt.
Arndt told Law Times he and his co-counsel are coordinating with Iranian nationals and other class members, from around the world, and he and his colleagues are conducting townhall meetings over videoconference with a Farsi/Persian interpreter.
“We are working on an agreed statement of facts, jurisdiction and applicable laws. We hope to reach consensus with the Airline on many points and conduct discoveries this summer.”
Miller says victims will be unable to get a result through the Victims of Terrorism Act because they will be unable to prove the downing of the plane was an act of terrorism. To qualify as a terrorist attack, there must be political motivation and the plane was full of Iranian citizens who had been living abroad,” he says. Had it been a plane full of Americans, it may have been another story, Miller says.
Another indication a terrorist designation will not stick comes from the life-insurance claims families have brought to Miller and his colleagues.
“We specifically took on some insurance claims. People had credit card insurance on their life. Serious money, like half a million dollars of life insurance,” he says. “If it was a terrorist attack, that usually voids the policy. And we have not had that argument from one insurer, because there was no evidence of it being a terrorist attack.”
Anrndt says the class action does not allege terrorism or a terrorist attack.
Without access to the Victims of Terrorism Act, litigants must be able to demonstrate an exception to sovereign immunity to sue Iran, Miller says.
If the activity behind the tort is commercial in nature, sovereign immunity does not apply.
Iran says the plane was hit because it was mistaken for a cruise missile. Tensions were high at the time, as Iran had just fired ballistic missiles at two U.S. bases in Iraq, in retaliation for the assassination of Iranian general Qasem Soleimani. With the country on high-alert and the military commandeering the airport, Miller says it will be hard to argue the event took place in the course of commercial activity.
“This was the military that fired the missile,” he says. “There is no commercial activity by Iran in the missile being fired. It has to be a direct link. And so that's why we did not believe the commercial exception would apply here.”
To hold the Iranian government responsible for the tragedy, the best strategy is to await the diplomatic process and the state-to-state claim Canada will be pursuing with the UK, Sweden, Afghanistan and Ukraine, which also lost citizens, says Miller.