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Ontario court rules deadly shootdown of Flight 752 in Iran was act of terrorism

Last Updated May 20, 2021 at 6:47 pm MDT

A police officer stands guard as debris is seen from an Ukrainian plane which crashed in Shahedshahr, southwest of the capital Tehran, Iran, January 8, 2020. Canada's Foreign Affairs Department says Ukraine will lead negotiations with Iran over compensation for the families of victims of the crash of Flight PS752. After first denying it, Iran admitted one of its air-defence batteries shot the Ukraine International Airlines jet down in January. THE CANADIAN PRESS/AP, Ebrahim Noroozi

TORONTO — An Ontario court has ruled that the Iranian military’s downing of a passenger jet early last year was an intentional act of terrorism, paving the way for relatives of those killed to seek compensation from the country.

In the decision, Ontario Superior Court Justice Edward Belobaba found on a balance of probabilities that the missiles that shot down Ukraine International Airlines Flight 752 on Jan. 8, 2020, were fired deliberately at a time when there was no armed conflict in the area.

As a result, he found it constituted an act of terrorism that would invalidate Iran’s immunity against civil litigation.

The ruling says that while the State Immunity Act protects foreign states from legal claims, the Justice for Victims of Terrorism Act provides an exception in cases where the losses are caused by terrorist activity.

READ MORE: Canada announces new pathway to permanent residency for families of crash victims

More than 100 of the 176 people killed in the plane crash had ties to Canada, including 55 Canadian citizens and 30 permanent residents.

The lawsuit was filed last year by four people whose loved ones were killed in the attack.

Merzhad Zarei lost his 18-year-old son, Arad, while Shahin Moghaddam lost his wife, Shakiba, and their son Rossitin, the document says. Ali Gorji lost his niece Poureh and her husband Arash, who were newlyweds, it says.

The fourth plaintiff, identified only as Jane Doe because she fears reprisals from Iran, had planned to be on the plane alongside her husband but couldn’t get a visa in time, the ruling says.

Lawyers representing the plaintiffs said the ruling is “unprecedented in Canadian law.”

“It is significant for the impact it will have on immediate surviving family members seeking justice,” Mark Arnold and Jonah Arnold said in a statement Thursday.

The suit names a number of defendants, including the Islamic Republic of Iran and the Islamic Revolutionary Guard Corps.

Iran was served with the claim through Global Affairs Canada in September, but failed to file a statement of defence and was found in default in December.

READ MORE: Iran prosecutor says 10 indicted for Ukraine plane shootdown

Normally, a defendant found in default is deemed to admit the truth of the allegations made in the statement of claim, but the protections under the State Immunity Act apply even to those found in default, Belobaba wrote. The plaintiffs must therefore still satisfy the court that the case can proceed under the legally established exceptions.

“The plaintiffs have established that the shooting down of Flight 752 by the defendants was an act of terrorism and constitutes ‘terrorist activity’ under the SIA, the JVTA and the provisions of the Criminal Code,” he wrote.

The judge relied on two expert reports — one by Ralph Goodale, Canada’s special adviser on the incident, and the other by the Special Rapporteur to the United Nations Human Rights Council — in determining that the missiles were fired intentionally.

He also relied on the UN report and other experts in finding there was no armed conflict in the region at the time.

Thursday’s ruling dealt only with liability. The judge says another hearing will be held regarding compensation.