It may be for the first time that an Ontario court was asked to determine damages for lost lives in a terrorist attack in the case of Zarei v Iran, 2021 ONSC 3377.
The Ontario Superior Court found that on a balance of probabilities, the Islamic Republic of Iran was civilly liable for shooting down Ukraine International Airline Flight PS 752 on January 8, 2020. The flight was carrying 167 passengers, including 85 Canadian citizens or permanent residents.
In a corresponding decision released on December 31, 2021, the court was asked to determine the compensatory and punitive damages that the plaintiffs should be awarded for the act of terrorism.
The plaintiffs acted in their capacity as surviving family members and as estate representatives of six of the deceased who were killed on the flight. In their personal capacities, the plaintiffs argued for damages under section 61 of the Family Law Act (“FLA”). However, subsection 61(1) of the FLA limits damages to the spouse, children, grandchildren, parents, grandparents, brothers and sisters of the deceased. One of the plaintiffs was an uncle claiming damages on behalf of his niece who was on the flight. Although he was barred from bringing a claim under the FLA, he could still pursue certain claims as an estate representative. As estate representatives, the plaintiffs sought damages under section 38 of the Trustee Act.
Subsection 38(1) of the Trustee Act states the following,
Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.
The plaintiffs claimed that damages should be awarded for the pain and suffering endured by the deceased as the flight was shot down and significant punitive damages should be awarded given the magnitude of the defendants’ wrong-doing. The court agreed and awarded $1 million for each deceased for their pain and suffering and awarded $100 million in punitive damages.
In coming to this conclusion, the court had to determine how to monetize the terror that was caused by two missile strikes spaced 30 seconds apart. The court followed American decisions where the length of suffering did not impact the amount of the award. The plaintiffs asked for $1 million each and the court found that this was in no way unreasonable. The court further found that a $100 million award in punitive damages was appropriate given the magnitude of the defendant’s misconduct, and that amount being the minimum amount required to serve the purposes of punishment, deterrence and denunciation.
At a time of a tragic death, it is difficult to think about receiving compensation for a lost loved one’s pain, however it is important to note that an Ontario court has now found that estate trustees, on behalf of the estate, can successfully seek damages for a terrorist attack. More importantly, even if a loved one is barred from bringing a claim for the loss of “care, guidance and companionship” under the FLA, they can still bring a claim if they are an estate trustee under the Trustee Act.
No amount of money can truly compensate for a loss of a loved one, especially in circumstances as horrific as an airplane crash, however Ontarians have options to be able to bring justice to the people that have caused this event to occur.
Thank you for reading.
Mohena Singh