Court expected to clear Flight PS752 victims' families to sue Iran, airline
Suit alleges Islamic Republic of Iran, Revolutionary Guard Corps kept airspace open to collect overflight fees
The Ontario Superior Court of Justice is expected to certify a class-action lawsuit against Iran, a wing of its military and Ukraine International Airlines launched by families of some of those killed in the downing of Flight PS752 outside Tehran on Jan. 8, 2020.
Toronto-based lawyer Tom Arndt said the court heard the certification motion Tuesday and indicated it would be endorsing the proposed lawsuit.
Habib Haghjoo — who lost his daughter Saharnaz Haghjoo and his eight-year-old granddaughter Elsa Jadidi when PS752 was shot down — said he's "thrilled" the lawsuit is moving ahead. He said the point of the lawsuit is to seek justice, not compensation.
"Now the fight can begin," he said. "I believe this could at least be some ointment on our wounds, a bit of comfort if we get a ruling against the Iranian regime and airlines. They took our loved ones. We want them to be liable and accountable. It is important."
The class-action lawsuit alleges the Islamic Republic of Iran and the Islamic Revolutionary Guard Corps — an elite wing of the country's military designated as a terrorist organization by many countries — kept airspace open and planes flying during a period of intense military activity in order to collect overflight fees.
Individual lawsuits also launched
A group of lawyers who say they represent the families of more than 90 victims in Canada told the court they take issue with some aspects of the class action, including with the request that the lead plaintiff remain anonymous, which lawyers for the plaintiff say is necessary to protect family in Iran from retribution by the Iranian regime.
Paul Miller, a partner with the law firm of Howie Sacks & Henry in Toronto, says families of roughly two-thirds of the 138 passengers who died with ties to Canada have retained their own lawyers to file individual suits.
Miller, who is co-counsel for the group, says it's rare that a class action is "dwarfed" by individual claims.
The lawyers in Miller's group are all suing Ukraine International Airline, but not Iran, he said. Families of Flight PS752 victims have reported to Canadian authorities that they've been threatened and intimidated — and blame Tehran.
Miller said the Canada government has a better chance than individuals of getting compensation from Iran. Canada formed an international co-ordination response group with four other countries that lost citizens on Flight PS752 to push for a transparent investigation and pursue reparations for families. Ukraine is expected to speak with Iran next on behalf of all countries and address compensation.
Overflight fees a factor, lawsuit alleges
Like many countries, Iran charges airlines an overflight fee for using its airspace. CBC News has reported that, in recent years, the country has used its geographical location next door to Iraq and near Syria to provide safe passage for foreign airlines connecting between Europe and Asia, or between Asia and other areas of the world.
But the prices it charges for use of its airspace are more than double what Canada charges.
Iran's airport authority reported to Iranian media it earned more than $140 million in overflight revenue between March 2018 and March 2019.
For three days after Flight PS752 crashed outside Tehran, Iran denied shooting it down. In response to mounting international pressure and evidence, Iran later admitted the IRGC "mistakenly" shot down the jet just hours after Iran's forces fired missiles at Iraqi bases where U.S. troops were stationed.
That surface-to-air missile attack was retaliation for the United States' killing of Iran's top military leader, Gen. Qasem Soleimani.
The proposed class action alleges the airline was negligent for not grounding its aircraft the morning PS752 was destroyed. Several airlines rerouted their flights, but Flight PS752 departed "despite the known risks," the law firm said in a press release when it launched the lawsuit.
The U.S. Federal Aviation Administration had issued an official notice at the time ordering American commercial aircraft to avoid Iran and the airspace from the Gulf of Oman to the Mediterranean.
Airlines from Canada, Australia and Singapore "also steered clear," according to a Canadian report on Flight PS752 released in December. Ukraine International Airlines is one of the companies that continued to operate in the airspace that Iran kept open.
Iran blames human error
Iran has maintained that a series of human errors and other issues led to the accidental firing of missiles which misidentified the commercial plane as a hostile target.
But Canada's former minister of foreign affairs François-Philippe Champagne has said he doesn't believe human error was to blame. Canada has submitted a long list of questions for Iran to answer — including the question of why the airspace was kept open when missiles were being fired.
Ralph Goodale, Prime Minister Justin Trudeau's special adviser on Flight PS752, has said that "given the extraordinary nature" of Iran's description of events, "it is understandable that victims' families find Iran's explanations difficult to accept."
"To remove doubt and relieve anxiety, Iran bears a heavy burden of responsibility to be completely comprehensive and transparent in substantiating its explanations with credible, compelling evidence, which has not yet been forthcoming," Goodale wrote in a December report.
Canada's Transportation Safety Board (TSB) announced Tuesday it received a draft of Iran's final report on its safety investigation. Ukraine — which has access to the report since its plane was involved — appointed a TSB representative as a technical adviser so that Canada could provide feedback on the findings.
The TSB said it can't comment further on the contents of the Flight PS752 report until Iran releases it publicly. Countries have until the end of the month to provide feedback.
Iran's president announced in December the country's cabinet set aside $150,000 in compensation for each of the victims' families. Canada has said it rejects that offer and will only accept compensation through appropriate negotiations with a group of countries affected by Flight PS752.
Haghjoo called the $150,000 offer a "huge insult to families."
"They kill our loved ones and now want to buy us or expect us to get over it with this money," he said.