Eight months after deadly air crash, Canada delivers class action suits to Iranian government

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Tom Blackwell (National Post)

he Islamic Republic of Iran has been served, almost eight months after the fact.

The federal government confirmed to lawyers recently that it delivered two class-action lawsuits to Tehran’s foreign affairs ministry, clearing a roadblock for the civil suits over January’s airliner shoot-down to move ahead in Canadian courts.

The actions were filed in January soon after the crash of Ukraine International Airlines Flight PS752, and Ottawa was legally obliged to serve them on Iran, a defendant in both cases.

The delay in doing so triggered speculation that Canada was embroiled in talks to revive diplomatic relations with Tehran, and didn’t want to ruffle feathers by presenting the legal claims.

But after the lawyer spearheading one of the suits, Mark Arnold, complained in court about the delay, a federal government representative said logistical factors related to COVID-19 — not politics — had made the process difficult.

For months, however, Ottawa had said nothing about what was happening, Arnold said Tuesday.“I’m delighted that Global Affairs Canada, after having this claim in their possession for eight months, has finally figured out a way to serve it on Iran,” he said.But, the lawyer added, the department “has to be more transparent and more co-operative, particularly in the face of this tragedy.”

A letter dated Sept. 1 from Michelle Campbell, deputy director of criminal, security and diplomatic law at Global Affairs Canada, says the documents had been served on the “appropriate authority” of Iran’s foreign affairs ministry.Tom Arndt, the lawyer heading that case, declined to comment, but the federal “certificate of service” for his suit was posted on the class action’s website.The news comes a few days after Iran said it was prepared to begin compensation talks with Canada and other countries that had victims on the flight.

For now, the lawsuits are proceeding separately from that process.

The plane crashed outside Tehran on Jan. 8, killing 176 passengers and crew in what was a largely Canadian tragedy. The victims included 55 citizens of this country and 30 permanent residents, among 138 passengers heading to Canada via Kyiv, many of them students returning after the Christmas break.

Iranian authorities originally claimed the crash was an accident, but under pressure admitted that air defence forces had mistakenly fired two missiles at the Boeing 737 amid tension with the United States.Black boxes retrieved from the wreckage revealed recently that pilots spoke for about 19 seconds after the first missile hit and before the second one.The two class-action lawsuits are taking divergent approaches to the case.

Arnold’s alleges the downing of the plane was an act of terrorism. The suit headed by Arndt accuses Iran of negligence.

Ontario law requires the federal government to serve a civil lawsuit on a foreign state if it’s named as a defendant.

As Ottawa was struggling to find a way to do that, Arnold said he used process servers, courier companies and email to serve the individual defendants named in his suit, ranging from senior officers of the Islamic Revolutionary Guard to Iranian Supreme Leader Ayatollah Ali Khamenei.

The law firm emailed a copy of the suit to Khamenei, and received an acknowledgement in response, he said.

Service was also carried out at Iranian missions in Australia and the U.K., said Arnold.

Meanwhile, a hearing in October on “carriage” will likely choose one of the law firms to move ahead in charge of a single class action, the lawyer said.

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