Carriage awarded in class action against Iran, others for downing of Ukrainian Airlines flight

The Ontario Superior Court of Justice has granted carriage of the class action commenced in connection with the crash of Ukraine International Airlines Flight PS752 to plaintiff Omid Arsalani, citing third party litigation funding and indemnity as significant factors in favour of the Arsalani action.

In Arsalani v. Islamic Republic of Iran, 2020 ONSC 6843, a proposed class action was brought on behalf of the passengers involved in the downing of the plane on Jan. 8, which killed all passengers and crew, and on behalf of the passengers’ families, against the Islamic Republic of Iran, the Islamic Revolutionary Guard Corps and Ukraine International Airlines PJSC.

Omid Arsalani and Ali Ashgar Gorji, who commenced separate actions, each sought to stay the other’s action. Arsalani also asked the Ontario Superior Court of Justice to stay an action initiated by Mehrzad Zarei and Shahin Moghaddam.

The issue was which among Arsalani and Gorji should have carriage of the class action. The Superior Court decided to award Arsalani carriage of the action and to stay the actions brought by Gorji and by Zarei and Moghaddam, without prejudice to these plaintiffs asking the court for leave the bring their actions as individual actions. No other proposed class actions of the same subject matter may be initiated in Ontario without the court’s leave, the court also stated.

The court went over the factors identified in Rogers v. Aphria, 2019 ONSC 3698 to decide which action should move forward. These factors may overlap, are not intended to be exhaustive and should not be subjected to a “tick the boxes” approach, the court said. The Rogers factors include case theory, the prospect of success and the quality of the proposed class counsel.

The court determined, pursuant to Mancinelli v. Barrick Gold Corporation, 2016 ONCA 571, that it was in the best interests of the class and fairness to the defendants for the Arsalani action to proceed, considering access to justice, judicial economy and behaviour modification.

“We are grateful for this important court decision as we seek justice and compensation for our loved ones,” Omid Arsalani said in a news release from TWA Law. Arsalani had lost his sister, brother-in-law and niece in the crash.

“With the help of our team, we will continue to work through the courts to seek justice and compensation,” said Tom Arndt of TWA Law. Arndt is a class action lawyer who acts for the class members.

“We are prepared to go the distance with TWA Law as they prosecute the Arsalani Action to completion,” said Fred Schulman, chairman and chief executive officer of Galactic Litigation Partners LLC. The court had approved the Galactic Funding Agreement in a judgment released on Sept. 21.