Ontario Superior Court of Justice awards damages to families of victims of downed Ukrainian flight

The Ontario Superior Court of Justice has awarded damages to families of victims of a Ukraine International Airlines flight that crashed after it was hit by two missiles in 2020.

The issue in Smith v. Islamic Republic of Iran, 2023 ONSC 4420 arose from the shootdown of Ukraine International Airlines Flight PS 752. Two surface-to-air missile fires by the Iranian Islamic Revolutionary Guard Corps. struck the aircraft shortly after take-off from Tehran’s international airport. The plane crashed, killing all 176 persons aboard.

The family members of individuals who perished in the crash claim compensation. They asserted that Iran and the Islamic Revolutionary Guard Corps. are responsible for an act of terrorism that resulted in the downing of the plane and are jointly and severally responsible for the harm caused and the losses suffered. The family members seek damages under the Family Law Act (FLA) on their own behalf. Furthermore, on behalf of the estates of their family members, the plaintiffs seek damages for those individuals’ pain and suffering and an award of punitive damages.

Since the action was not defended, the plaintiffs asked for default judgment against the defendants.

Identical proceeding

The Ontario Superior Court of Justice noted that this is the second identical default proceeding arising from the shooting down of Flight PS 752. In the first decision, Zarei v. Iran, 2021 ONSC 3377, the court determined that the shooting down of the aircraft was an intentional act of terrorism under the laws of Canada and found liability on all defendants. The court awarded $107,000 in damages to the five plaintiff families.

The superior court acknowledged that this case involves identical facts to those that formed the basis of the claims in Zarei. Since the legal issues and evidence were identical, the court relied on the findings and analysis in Zarei.

The court concluded that the plaintiffs, as did the plaintiffs in Zarei, have established that the shooting down of Flight 752 by the defendants was an act of terrorism and constituted “terrorist activity” under the State Immunity Act, the Justice for Victims of Terrorism Act, and the provisions of the Criminal Code. Accordingly, the plaintiffs are entitled to default judgment on liability.

Damages award

The court noted that in Zarei, three of the claims advances are viable under Ontario law – the surviving family members’ claims for loss of guidance, care, and companionship, the estates’ claims for pain and suffering, and the claim for punitive damages.

Under the FLA, damages recoverable may include amounts to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. Such awards may be made in favour of spouses, children, grandchildren, parents, grandparents, brothers and sisters of the person harmed. Applying this rule, the court awarded damages to individuals who lost their siblings, child, and spouse. However, the court refused to grant an award in favour of an individual who lost a sister-in-law or a niece as no awards are available under the FLA on account of these individuals.

The court further noted that the estate representatives advanced claims for the pain and suffering endured by the decedents as Flight PS 752 sustained two missile strikes and plummeted to earth.

The court in Zarei asked, “How exactly should a court monetize the terror that both crew and passengers must have felt after being hit by the first missile? And 30 seconds later, by a second missile? And then over the next four minutes as the plane hurled towards the earth and inevitable death?”

The superior court adopted the decision in Zarei that an award of $1 million for each deceased victim was appropriate.

As to the plaintiffs’ claim for punitive damages, the court acknowledged that in Zarei, the plaintiffs were already awarded punitive damages, showing that the court has already sanctioned the defendants' conduct. Despite the previous award of punitive damages, the court noted that the cause of action in the two cases is the separate independent tort of wrongful death committed by the defendants against each deceased and their surviving family.

The court said that the shooting down of Flight PS 752 caused 176 individual wrongful deaths. Even though those deaths arose from the same event, there are 176 wrongful death causes of action. The punitive damages award in Zarei served as a sanction only concerning the deaths of the Zarei parties. Accordingly, the court also awarded punitive damages to the plaintiffs in this case.