Ottawa has failed for months to serve plane crash lawsuit on Iran, as legally required, lawyer says
Monday, 22 June 2020 ()
A unique lawsuit against Iran over the crash of an airliner packed with Canada-bound passengers has been on hold for months because Ottawa won’t serve the suit on Iranian officials, says a lawyer spearheading the case.
An Iranian-Canadian activist says Canada is likely foot-dragging because the countries are secretly negotiating a resumption of diplomatic ties. A Global Affairs Canada official confirmed Iran has asked to restore consular relations, but said Ottawa’s first priority is “making progress” on the plane crash front.
Filed in the name of the 176 victims of January’s Ukraine International Airlines crash near Tehran, the class-action lawsuit alleges that Iran fired missiles at flight PS752 as an act of terrorism.
All but 38 of the passengers were on their way to Canada, including 55 citizens, 30 permanent residents and numerous students from Iran.
Federal law obliges the government to serve papers launching a lawsuit on a foreign state if requested by the litigant. But Global Affairs Canada has failed to do so, or explained why it hasn’t, says lawyer Mark Arnold.
That’s left the $1.5 billion suit in limbo even as various court hearings have been scheduled for the coming months, Arnold said. The case can’t proceed without a “certificate of service” from federal officials, he said.
“We’ve asked at least half a dozen times in official emails to their legal counsel,” Arnold said. “And we have no idea why we have not received the certificate.”
Though the countries have no diplomatic relations, the suit could easily be served on Iranian delegates to the United Nations in New York, as has been done in the past, the lawyer said.
Arnold was behind an earlier lawsuit over Iran’s sponsorship of Middle East terror.
Section 9(2) of the federal State Immunity Act says a litigant may provide an originating court document to the deputy minister of foreign affairs or designated official, “who shall transmit it to the foreign state.“
One Iranian-Canadian activist says unconfirmed reports of secret talks between the countries may explain why Ottawa has been reluctant to present the papers to Iranian officials.
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Sources within the Iranian government have indicated the nations are discussing resumption of limited diplomatic ties, said Ardeshir Zarezadeh, director of the Middle East-focused International Centre for Human Rights .
“We believe (Foreign Minister Mohammad Javad) Zarif has told Mr. Trudeau to block court proceedings in Canada so they can consider negotiations on establishing the Canadian office in Iran, and an Iranian office in Canada,” he said.
John Babcock, a Global Affairs Canada spokesman, did not respond to a question about why the lawsuit has not been served on Iranian officials.
A clue may have been dropped by a Canadian diplomat two years ago.
John Horak, the former ambassador to Saudi Arabia, told a 2008 conference that the Justice for Victims of Terrorism Act brought in by the Stephen Harper Conservative government, and cited in the new PS752 suit, was “stupid” and a major stumbling block in relations with Iran.
Babcock did say setting up consular services in each country, eight years after Canada severed diplomatic ties with Iran, has recently come up.
“Iran has raised with Canada the issue of re-establishing consular relations,” he said via email. “We have been clear, at this time, Canada’s focus and priority is on making progress on issues related to PS752.”
Canada is committed to negotiating “reparations” from Iran in the form of compensation for victims’ families, and is pushing for a transparent criminal investigation into the crash. Iran’s failure to hand over the plane’s black boxes for analysis in a country with the required technology is “of deep concern,” said Babcock.
“We will remain united (with other countries) as we pursue justice and accountability for the victims of this horrific tragedy,” he said. “Should Iran continue to fall short of its commitments to the international community and to the families, Canada remains ready to use all potential avenues for holding Iran to account.”
Iranian authorities originally claimed the plane’s demise was an accident, but under pressure admitted that air-defence forces had mistakenly shot two missiles at the Boeing 737 amid tension with the United States.
Foreign countries are immune from most civil lawsuits in Canada, but the case Arnold is handling is rooted in the Justice for Victims of Terrorism Act . Iran is listed as a state supporter of terrorism under the legislation.
The suit argues the plane was either shot down as a deliberate act of terrorism, or that Iran acted in a reckless, wanton and high-handed manner that amounted to a terrorist act.
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