03.24.2020
Compensation Claims Arising from Downing of Ukrainian Airlines PS752
CFM Lawyers is a Vancouver based aviation law firm. We act for victims of aviation accidents across Canada and internationally. We have received many calls from the media, local community and passengers’ families for information regarding possible claims for compensation arising from the downing of UIA Flight PS 752.
We have prepared this summary of the avenues to compensation for family members impacted by the downing of Ukrainian Airlines Flight 752. The purpose of this summary is to provide family members with basic, accurate information regarding their legal situation. It is not intended to provide legal advice on any particular claim. Please contact us directly using the contact details below if you require legal advice regarding a possible claim.
Possible Avenues for Compensation
There are a number of possible avenues for compensation arising from the downing of Ukrainian International Airlines Flight PS 752. One avenue is a claim against the airline, UIA, in Canada under the international conventions which govern claims against airlines on international flights. Another avenue is a claim against the State of Iran. It is also possible that family members may have a claim for travel accident insurance benefits. Because insurance policies often have a short claim period, this issue is addressed first.
Travel Accident Insurance – URGENT
If your family member purchased their airline ticket on a credit card, it is possible the card included an accidental death/life insurance policy. These policies are complex and often have short periods in which to make a claim. For instance some credit card companies require notification of a claim within 90 days of the date of the accident, and some of them have even a shorter timeline for this. In order to protect any possible claim which your family may have, you should seek legal advice immediately as to the availability of insurance, and when and how a claim can be made. If you have not already retained a lawyer, we would be pleased to review this issue with you. Please contact anyone of our legal team below for assistance.
Claims Against the Carrier Are Governed by International Conventions
Claims for compensation arising from the crash of Ukraine International Airlines Flight 752 will likely be governed by international conventions – either the Montreal Convention or its predecessor the Warsaw Convention. Both Conventions have been enacted into law in Canada under the federal Carriage by Air Act.
The issue of which convention will apply to any particular case is somewhat complicated. Canada has adopted the Montreal Convention. Iran has not Iran is still governed by the Warsaw Convention. The question of which convention applies depends on a passenger’s flight itinerary.
For Canadians (and others) travelling on round trip tickets from Toronto to Kiev to Tehran and back to Canada, claims for compensation could be brought under the Montreal Convention in a Canadian court. In legal terms, the courts of Canada would have jurisdiction over the case because Canada would be considered the country of “destination” under the Montreal Convention (notwithstanding the connection through Kiev). The courts of Canada would also likely have jurisdiction under the Warsaw Convention for any passenger whose destination on a one way ticket was Canada.
Compensation under the Montreal Convention
The Montreal Convention establishes a two tiered system of liability. The carrier is strictly liable to pay compensation to a passengers’ family in the event of an “accident” for provable damages up to an initial threshold of 128,821 Special Drawing Rights ($232,000 CAD). This is the first tier of liability. For claims exceeding this amount, the onus is on the carrier to prove that the accident was not caused by negligence of the carrier. This is the second tier of liability. The precise amount of compensation payable will be determined by Canadian law. Canadian law requires individual assessment of compensation in fatal accident cases. The law varies somewhat from province to province but generally speaking, the law in each province provides for damages for the following elements:
- Loss of financial support that the deceased family member would have provided to their dependents over the balance of their working life
- Loss of valuable services the deceased family member would have provided to family members
- Funeral expenses
Provincial law varies significantly on compensation for bereavement. British Columbia law does not permit recovery of compensation for bereavement. Alberta law provides for bereavement damages in fixed amounts. Ontario law does not permit claims for bereavement but does provide compensation for “loss of care, guidance and companionship”.
Definition of “Accident” Under the Montreal Convention
Based on international jurisprudence, a missile strike would likely be considered an “accident” under the Montreal Convention so the carrier could be held liable to compensate the passengers families. The question of whether the carrier was negligent for taking off in the circumstances (or other reasons) would come into play for claims which exceed the strict liability monetary threshold. Any claim of negligence would be complicated and would almost certainly require a thorough investigation involving experts in aviation accident investigation, air safety, and risk assessment. It is important to note that the investigations which are underway are not intended to find legal responsibility for the crash. Under ICAO rules, the purpose of the investigation is to advance aviation safety and prevent recurrence. In order to prove negligence in a court of law, expert evidence will be required.
As an example, in the case of Malaysian Airlines 17, our firm brought a claim on behalf of the family of a Canadian passenger in the courts of Ontario on the basis that the missile strike was an “accident” and the carrier was negligent for routing the flight over an active combat zone where there was a known history of surface to air missiles being used. The case eventually settled for a confidential amount.
Claims against State of Iran
It is also possible that Canadian families may have claims against the State of Iran. There are two possible avenues for this. The first is a “state to state” claim by the Government of Canada in the International Court of Justice based on violation of international law. There is precedent for bringing a “state to state” claim for compensation for family members in similar cases. In the 1980s, Iran brought a claim for compensation in the ICJ against the United States as a result of the downing in of an Iran Air flight by the USS Vincennes. The case was resolved by way of settlement.
A second, more complex, avenue could be to proceed with a claim by family members for civil damages against the State of Iran in the courts of Canada. Past attempts to sue the state of Iran in the courts of Canada have been dismissed on the basis of state immunity. State immunity is lifted in circumstances involving acts of terrorism which may include an offence against the Convention for the Suppression of Unlawful Activity against Civil Aircraft. In theory, a claim could be brought under the Justice for Victims of Terrorism Act. This is a highly complex legal issue which involves issues of criminal law, sovereign immunity, and other international conventions. This avenue has three main disadvantages. First, the defence of state immunity must be overcome. The courts of Canada are required to consider the defence of state immunity even if Iran does not defend case. Second, it puts family members in Iran at risk of potential reprisals for making public claims of terrorism against the Iranian state. Third, it is highly unlikely the state of Iran has any assets in Canada which could be used to satisfy any judgment. The last remaining assets in Canada appear to have been seized in 2018 pursuant to a court order in order to pay a judgment issued by an American court against the Iranian state.
Class Actions
Class actions are a means of proceeding with court claims on behalf of a group of people with common claims in one court case brought by a representative person. Subject to court approval, the representative instructs the lawyers and makes decisions on behalf of all class members. In a class action, the result in the representative case is binding on all other class members with a common claim.
We have extensive experience with class action claims but do not consider a class action to be the best option for passenger family members in the current circumstances. Our view is that the death of a family member is a serious legal matter which requires individual assessment. Family members do not have to participate in any class action. They have a right to opt out of any class action and pursue their own individual court case.
Contact CFM
| Joe Fiorante, Q.C. | David Jones |
| Direct Line: (604) 331-9521 | Direct Line: (604) 331-9528 |
| [email protected]
|
[email protected]
|
| Jamie Thornback | Bahar Motamedian |
| Direct Line: (604) 331-9529 | Direct Line: (604) 331-9526 |
| [email protected] | [email protected] |
| Main Office: (604) 689-7555 |
| Email: [email protected] |
07.30.2019
Guatemalan protestors reach landmark conclusion to lawsuit
CFM announces conclusion of landmark Garcia et al., v Tahoe Resources Inc. case – http://www.newswire.ca/en/releases/archive/July2019/30/c9373.html.
04.16.2019
ODD Class Action – Settlement approval hearing
A settlement has been reached with the Sony Defendants.
03.12.2019
Autoparts Settlements
Settlements have been reached with the defendants in the following actions:
Starters
Robert Bosch GmbH, Robert Bosch Inc., and Robert Bosch LLC (“Bosch”), in the amount of $250,000.
Mitsubishi Electric Corporation, Mitsubishi Electric Automotive America, Inc. and Mitsubishi Electric Sales Canada, Inc. (“Mitsubishi Electric”), in the amount of $2,000,000.
Windshield Wipers
Bosch, in the amount of $150,000.
Requests to opt-out of the proceedings must be post-marked by May 13, 2019.
Alternators
Mitsubishi Electric, in the amount of $2,200,000.
Ignition Coils
Mitsubishi Electric, in the amount of $2,500,000.
Fuel Injection Systems
Aisan Industry Co. Ltd., Franklin Precision Industry, Inc., Aisan Corporation of America and Hyundam Industrial Co., Ltd. (“Aisan”), in the amount of $40,000.
Bosch, in the amount of $375,000.
Mitsubishi Electric, in the amount of $400,000.
The Aisan, Bosch and Mitsubishi Electric settlements are subject to court approval in Ontario, British Columbia and Quebec. The Aisan, Bosch, and Mitsubishi Electric settlements were approved by the Ontario Court on September 21, 2018, and in the Quebec Court on November 30, 2018. On April 24, 2019, at 9:30am the British Columbia Court will hold a hearing at the Vancouver Court House at 800 Smithe Street, Vancouver, British Columbia.
Please review the Notice of Certification for Settlement Purposes and Settlement Approval Hearing by clicking on the link shown below:
The settlement funds (plus interest, less court-approved fees and expenses) are being held in trust for the benefit of settlement class members. At a later date, the courts will be asked to approve a method of distributing the settlement funds to settlement class members.
02.11.2019
Gold Price Manipulation Certification for Settlement
On October 25, 2018, the Ontario Court approved a motion to certify the within action as against Deutsche Bank AG, Deutsche Bank Securities Limited, and Deutsche Bank Securities, Inc. (“Deutsche Bank”) for settlement purposes.
The Deutsche Bank settlement agreement (the “Deutsche Bank Agreement”) is subject to Court approvals in Ontario and Quebec. Hearings to approve the Deutsche Bank Agreement will be held as follows:
- Ontario: at the Toronto courthouse on April 30, 2019
- Quebec: at the Montreal courthouse on June 17, 2019
If you decide to exclude yourself (opt out), you must submit an Opt Out Form no later than April 12, 2019.
Copies of the Deutsche Bank Agreement, Short-Form and Long Form Notice (English and French) and opt-out form can be located under the “Important Documents” heading on the Gold Price Manipulation page.
Silver Price Manipulation Certification for Settlement
On October 25, 2018, the Ontario Court approved a motion to certify the within action as against Deutsche Bank AG, Deutsche Bank Securities Limited, and Deutsche Bank Securities, Inc. (“Deutsche Bank”) for settlement purposes.
The Deutsche Bank settlement agreement (the “Deutsche Bank Agreement”) is subject to Court approvals in Ontario and Quebec. Hearings to approve the Deutsche Bank Agreement will be held as follows:
- Ontario: at the Toronto courthouse on April 30, 2019
- Quebec: at the Montreal courthouse on June 17, 2019
If you decide to exclude yourself (opt out), you must submit an Opt Out Form no later than April 12, 2019.
Copies of the Deutsche Bank Agreement, Short-Form and Long Form Notice (English and French) and opt-out form can be located under the “Important Documents” heading on the Sliver Price Manipulation page.
12.07.2018
Small Bearings
On November 8, 2018, the BC Court approved a motion to certify the within action as against MinebeaMitsumi Inc. (formerly Minebea Co. Ltd.), NMB Korea, NMB (USA) Inc., and NMB Technologies Corporation (“NMB”) for settlement purposes.
The NMB settlement agreement (the “NMB Agreement”) is subject to Court approval in Ontario, British Columbia and Quebec. Hearings to approve the NMB Agreement will be held as follows:
- Quebec: at the Montreal courthouse on January 22, 2019
- Ontario: at the Goderich courthouse on February 25, 2019
- British Columbia: at the Vancouver courthouse on March 7, 2019
Click to view Important Documents
09.17.2018
Commercial Halibut Fishing – Matter Concluded
This class action has been concluded. On September 12, 2018, a Consent Dismissal Order was filed with the court registry dismissing all claims.
08.02.2018
Visa / Mastercard – Application to Approve Settlements with National Bank, Visa and Mastercard
Class Counsel attended before the BC Court on June 25, 2018, July 4, 2018 and July 5, 2018 for the application to approve settlements with National Bank, Visa and Mastercard. The BC Court’s decision was released on July 13, 2018 and can be found under “Important Documents”. The hearings scheduled for Alberta, Saskatchewan and Ontario were adjourned and have been rescheduled. The Quebec hearing will go ahead as originally scheduled on August 21, 2018. Please contact Class Counsel at [email protected] if you would like to receive information regarding the rescheduled hearings. The rescheduled dates are also be posted on this website.
Important Dates – National Bank of Canada, Visa and Mastercard Settlement Approval Hearings:
- BC Action – Vancouver on June 25, 2018 at 10:00 am
- Quebec Action – Montreal on August 21, 2018 at 8:45 am
- Ontario Action – Toronto on September 4, 2018 at 10:00 am
- Saskatchewan – Regina on September 5, 2018 at 10:00 am
- Alberta – Calgary on August 23, 2018 at 11:00 am
07.26.2018
Entered Alberta Order re Adjournment of Settlement Approval (Visa, Mastercard and National Bank)
A copy of the order can be viewed HERE.
