Families could sue Iran for 'perpetrating a terrorist act' in jetliner attack, lawyer says

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A Canadian litigation lawyer who is offering his services to the families of those killed in the downing of Ukrainian International Airlines flight PS752 says the best way to get compensation for the loss of their loved ones is to charge the Iranian government for "perpetrating a terrorist act." 

"A claim can be brought under Canadian law against Iran, naming Iran as a defendant for perpetrating a terrorist act and in my view, what happened was a terrorist act," Mark Arnold told The Current's Matt Galloway.

So far, Prime Minster Justin Trudeau and the government have refrained from labelling the incident a terrorist attack. 

But Arnold says the federal government is obligated under the State Immunity Act, which would allow victims of terrorism to sue in Canadian courts, to serve Iran with legal papers, even though Canada cut diplomatic ties with the regime in 2012 when former prime minister Stephen Harper expelled all Iranian diplomats from the country.

"Canada will go through an intermediary and is obligated under Canadian law to effect [legal] service of the client. Iran then has 40 days to defend the charges and if they don't, they get noted in default. [If this happens] then we're off to the litigation," he said. 

The importance of families litigating is that it gives them "control over the process, " Arnold said, whereas a diplomatic approach to receiving compensation can mean the families are at the "behest of governments and its bureaucracy."

After initially blaming a technical failure, Iranian authorities admitted Saturday that the country's military accidentally struck the Boeing 737-800 with a missile, causing it to crash in the countryside southwest of the Iranian capital, killing the 176 people aboard, including 57 Canadians. 

"I take that to be an admission of liability insofar as the president of Iran has authority to speak for Iran. So in a way, it makes the claim a little easier."

Arnold anticipates Iran will defend itself by claiming the accident was not a terrorist act and simply negligence. 

"When you pull the trigger and you've got your bullet aimed at the wrong person, you are culpable for doing that. Someone intentionally pushed a button and may have pushed it twice, even though the Iranians may now be saying it was an accident."

But listing the Iran's Islamic Revolutionary Guard as a terrorist entity would undermine efforts by the Trudeau government to properly investigate the Iranian plane crash, Dennis Horak, Canada's last ambassador to the country said.

Horak said the current terrorism act — if amended — might not be the best means for the victims to seek redress from Iran because Canada would have to prove that the downing of the plane was an intentional act of terrorism, which would be difficult.

Arnold says another option for families to claim damages could be the Montreal Convention, which in 1999 established airline liability in the case of death or injury to passengers.

"I understand it, claims are to be paid by the airline — in this case, Ukrainian Air — under the convention of amounts of approximately $230,000."

"From my perspective as a litigator, the only option is to commence legal proceedings in one of the provinces against Iran for this terrible act of terror." 

In a similar case, the families of six crew members on a Malaysia Airlines passenger jet shot down over Ukraine in 2016 filed lawsuits against the airline, accusing it of negligence and breach of contract.

Written by Adam Jacobson.  Produced by Joana Draghici.