Court File No. CV-20-00635078-0000
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
MEHRZAD ZAREI personally and on behalf of the Estate of ARAD ZAREI deceased or as Personal Representative of ARAD ZAREI deceased and;
SHAHIN MOGHADDAM personally and on behalf of the Estate of SHAKIBA FEGHAHATI deceased or as Personal Representative of SHAKIBA FEGHAHATI deceased and on behalf of the Estate of ROSSTIN MOGHADDAM deceased or as Personal Representative of ROSSTIN MOGHADDAM deceased and;
ALI GORJI, personally and on behalf of the Estate of POUNEH GORJI deceased or as Personal Representative of POUNEH GORJI deceased and on behalf of the Estate of ARASH POURZARRADI deceased or as Personal Representative of ARASH POURZARRADI deceased and;
JOHN DOE, JANE DOE, BILL DOE and SAM DOE Plaintiffs -and-
ISLAMIC REPUBLIC OF IRAN, ISLAMIC REVOLUTIONARY GUARD CORPS also known as ARMY OF THE GUARDIANS OF THE ISLAMIC REVOLUTION also known as IRANIAN REVOLUTIONARY GUARD CORPS, IRANIAN ARMED FORCES also known as ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN, ALI KHAMENEI also known as SUPREME LEADER OF IRAN, MOHAMMAD BAGHERI also known as MOHAMMAD-HOSSEIN AFSHORDI, HOSSEIN SALAMI, SEYYED ABDOLRAHIM MOUSAVI and AMIR ALI HAJIZADEH
Defendants
FRESH AS AMENDED STATEMENT OF CLAIM
TO THE DEFENDANTS
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claim made against you is set out in the following pages.
2
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiff’s lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service in this court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario.
If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.
Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
TAKE NOTICE: THIS ACTION WILL AUTOMATICALLY BE DISMISSED if it has not been set down for trial or terminated by any means within five years after the action was commenced unless otherwise ordered by the court.
Date March , 2021 Issued by January 24, 2020 Local Registrar
Address of Superior Court of Justice court office: 330 University Avenue, 9th Floor Toronto ON M5G 1R7
TO: Islamic Republic of Iran Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
3
AND TO: Islamic Revolutionary Guard Corps Also Known As Army Of The Guardians Of The Islamic Revolution Also Known As Iranian Revolutionary Guard Corps Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
AND TO: Iranian Armed Forces Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
AND TO: Ali Khamenei Also Known As Supreme Leader Of Iran Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
-AND-
Office of the Supreme Leader Pasteur Street - Palestine Avenue, Pasteur Sq. ،عطارد ,Tehran, District 11 Tehran Province Iran
AND TO: Mohammad Bagheri Also Known As Mohammad-Hossein Afshordi Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
-AND-
Shariati Street Qasr Intersection Tehran Province, Tehran, Iran
4
AND TO: Hossein Salami Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
-AND-
Dowshan Tappeh, Jaddeh-ye-Makhsus-e-Qasr-e-Firouzeh, Shahid KolaahDouz settlement (Town), Tehran, Iran
AND TO: Seyyed Abdolrahim Mousavi Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
-AND-
Shariati Avenue, Shahid Ghodousi intersection, Tehran Iran
-AND-
Khatam Al Anbia Air Defense Base Basij Mostazafin Motorway - TAKHTI Road - HEJRAT Highway Tehran, Iran
-AND-
End of Shahid Rahimi Street, Basij Highway Tehran, Postcode: 1781813513 Iran
5
AND TO: Amir Ali Hajizadeh Deputy Minister of Foreign Affairs Government of Canada 125 Sussex Drive Ottawa, Ontario, K1A 0G2
-AND-
Tehran- Karaj Parkway, between HEMMAT highway & HAKIM Motorway Tehran District 22, CHITKAR Town Tehran, Iran
6
CLAIM:
1. The plaintiffs claim:
a. Damages in the amount of $1 billion arising from an act of terrorism perpetrated by the defendants against the plaintiffs, or, alternatively, on the basis of negligence; b. Punitive, exemplary and aggravated damages in the estimated amount of an additional $500 million; c. Damages under Section 61 of the Family Law Act, R.S.O. 1990, c. F.3; d. Costs as against the defendants on a full indemnity basis or upon grounds this court deems just; e. Prejudgment and postjudgment interest upon all amounts to be paid by the defendants under the Courts of Justice Act, R.S.O. 1990, c. C.43; and f. Such further and other relief as counsel may advise and this court permit.
2. The plaintiff, Mehrzad Zarei, is the father of Arad Zarei who was killed when
Ukraine International Airlines Flight PS752 (“PS752”) was shot down by the
defendants on January 8, 2020.
3. The plaintiff, Shahin Moghaddam, is the husband of Shakiba Feghahati and
father of Rosstin Moghaddam who were both killed when PS752 was shot down
by the defendants on January 8, 2020.
4. The plaintiff, Ali Gorji, is the uncle of Pouneh Gorji and Arash Pourzarradi . On
or around December 31, 2020, Pouneh Gorji and Arash Pourzarradi were
married in Iran before they were both killed when PS752 was shot down by the
defendants on January 8, 2020.
5. The four “Doe” plaintiffs are each the immediate family member of other
persons who were killed in the crash of PS752 on January 8, 2020. 7
6. The Doe plaintiffs have family members presently living in the Islamic Republic
of Iran (“Iran”). They have a well-founded and reasonable belief that if their true
identity were revealed in this pleading, their Iranian families would be put at risk
of harm or death by Iran.
7. The defendant, Islamic Republic of Iran, is a designated foreign state supporter
of terrorism under the Justice for Victims of Terrorism Act, S.C. 2012, c.1, s.2,
and the State Immunity Act, R.S.C., 1985, c. S-18. SOR/2012-170 of the State
Immunity Act contains a List of Foreign State Supporters of Terrorism that
includes Iran.
8. The defendant, Islamic Revolutionary Guard Corps, also known as Army of the
Guardians of the Islamic Revolution also known as Iranian Revolutionary Guard
Corps (“IRGC”), is an independent branch of the Iranian Armed Forces. IRGC
controls the Iranian air force known as the Aerospace Force of the Army of the
Guardians of the Islamic Revolution.
9. The defendant, Iranian Armed Forces, also known as Armed Forces of the
Islamic Republic of Iran (“IAF”), is a military force of Iran.
10. The defendant, Ali Khamenei, also known as Supreme Leader of Iran, is the
leader of Iran, the Head and General Commander of the IAF and IRGC and
holds ultimate authority in Iran.
11. The defendant, Mohammad Bagheri, also known as Mohammad-Hossein
Afshordi, is the Chief of Staff of the IAF. 8
12. The defendant, Hossein Salami, is the Commander-in-Chief of the IRGC.
13. The defendant, Seyyed Abdolrahim Mousavi, is the Commander-in-Chief of the
Iran Army, part of the IAF. He is also the Commander of Khatam al-Anbiya Air
Defense Base.
14. The defendant, Amir Ali Hajizadeh, is the Commander of Aerospace Force of
the Islamic Revolutionary Guard Corps.
15. The plaintiffs plead that Iran is a foreign state upon which service of this
Statement of Claim may be made by delivery of same to the Deputy Minister of
Foreign Affairs under Section 9(2) of the State Immunity Act, R.S.C. 1985,
c. S-18.
16. The plaintiffs plead that the Statement of Claim may be served on the
defendants outside the Province of Ontario, without leave, under Rule 17.02(n)
of the Rules of Civil Procedure.
17. The plaintiffs plead that service of this claim on Iran amounts to good service
on all the other defendants, all of whom are agents of Iran and subject to the
direct authority and control of Iran.
18. The plaintiffs plead and the facts are that on January 8, 2020 at approximately
6:12 AM local time, Ukrainian International Airlines Flight PS752 took off and
departed from Tehran's Khomeini International Airport bound for Kiev, Ukraine. 9
19. The aircraft was a Boeing 737-800, one of the international airline industry's
most widely used and safest aircraft models.
20. Immediately following the plane’s departure and within the airspace designated
for commercial flights to depart Tehran, the aircraft appeared to turn around to
return to the runway but shortly thereafter it crashed to the ground.
21. Iran initially stated that the aircraft suffered a technical problem shortly after
takeoff, resulting in Tehran airport authorities losing radar contact when the
aircraft was at an altitude of approximately 8000 feet.
22. The plaintiffs plead and the facts are that PS752 was shot down by the
defendants, and each of them intentionally, when they launched two surface-
to-air missiles that struck the aircraft that resulted in the death of all people on
board the aircraft.
23. On January 11, 2020, the President of Iran, Hassan Rouhani, on behalf of and
authorized by Iran, admitted that military forces of Iran and the Islamic
Revolutionary Guard Corps shot the plane from the sky. He described it as an
"unforgivable mistake”.
24. Subsequently, the Supreme Leader of Iran, Ali Khamenei, ordered the Iranian
military to investigate "the possible shortcomings or mistakes" that led to the
crash.
25. On board PS752 were approximately 176 people comprising Canadians,
Iranians, Ukrainians, Swedes, Afghans, Britons, Germans and a nine-member 10
flight crew. Of the passengers on board, 138 were traveling to Canada via
Ukraine.
26. There were no survivors of the shooting down of Flight PS752.
27. The plaintiffs plead that the shooting down of PS752 by the defendants, and
each of them, was an intentional and deliberate act of terrorism perpetrated by
the defendants against the plaintiffs.
28. The plaintiffs plead and rely upon Section 4 of the Justice for Victims of
Terrorism Act, S.C. 2012, ("JVTA").
29. The plaintiffs further plead and rely upon Section 6.1(1) of the State Immunity
Act, R.C.S. 1985, c. S-18 (“SIA”) and state that Iran is not immune from the
jurisdiction of this court in proceedings against it for acts of terrorism.
30. The plaintiffs further plead and rely upon a Decision of the Court of Appeal for
Ontario in Tracy v. Iranian Ministry of Information and Security, [2017] O.J. No.
3480, as common law authority for this proceeding.
31. The plaintiffs further plead, alternatively, that in shooting down PS752, the
defendants, and each of them, conducted themselves recklessly, wantonly and
in a high-handed manner. That conduct amounted to a terrorist act under the
JVTA, SIA and the Criminal Code, whether the defendants intended to conduct
themselves in that manner or were negligent in that conduct. 11
32. Alternatively, the plaintiffs plead that the defendants failed to meet any
reasonable standard of care when they launched missiles from their base in
Tehran targeted against PS752 and were thereby negligent in their conduct
that resulted in the destruction of the aircraft and the subsequent death of the
passengers on board.
33. The plaintiffs further plead that pursuant to SOR/2012-170 of the SIA, Iran is
listed under Canadian law as a state sponsor of terrorism.
34. The plaintiffs further plead and rely on the terrorism definition as provided for
under Section 83.01(1) of the Criminal Code:
83.01 (1) The following definitions apply in this Part.
terrorist activity means
(a) an act or omission that is committed in or outside Canada and that, if committed in Canada, is one of the following offences: …
(ii) the offences referred to in subsection 7(2) that implement the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation, signed at Montreal on September 23, 1971,
7 (2) Notwithstanding this Act or any other Act, every one who …. (b) in relation to an aircraft in service, commits an act or omission outside Canada that if committed in Canada would be an offence against any of paragraphs 77(c), (d) or (g)…shall be deemed to have committed that act or omission in Canada if the person is, after the commission thereof, present in Canada.
12
77 Every one who … (c) causes damage to an aircraft in service that renders the aircraft incapable of flight or that is likely to endanger the safety of the aircraft in flight, … is guilty of an indictable offence and liable to imprisonment for life.
35. The plaintiffs further plead that on the date of the shooting down of PS752 as
set out at paragraph 22 above, there was no "armed conflict" underway in the
sovereign territory of Iran or in the region as that term is used at Section
83.01(1)(b) of the Criminal Code.
34. The plaintiff's plead, alternatively, that if there was an "armed conflict"
underway in the sovereign territory of Iran or in the region on January 8, 2020,
which is expressly and hereafter denied, the onus is on the defendants to prove
such a conflict as an exception to the definition of terrorism in Section
83.01(1)(b) of the Criminal Code.
35. Alternatively, the plaintiffs plead that if there was an "armed conflict" underway
in the sovereign territory of Iran or in the region on January 8, 2020, the
shooting down of PS752 by the defendants was not in accordance with any
customary or conventional international law that might be applicable to such a
conflict. Regardless, the onus of proof of this exception is with the defendants.
13
36. In the further alternative, the plaintiffs plead that if there was an "armed conflict"
underway in the sovereign territory of Iran or in the region on January 8, 2020,
the shooting down of PS752 by the defendants was not in the exercise of official
military duties. It is not and could not have been an official duty of the Iranian
military to shoot down a departing commercial aircraft with civilian passengers
and a commercial flight crew on board that had been cleared by local air traffic
control to depart Tehran on that date because PS752 did not threaten the
sovereignty, safety or security of the Islamic Republic of Iran when it was shot
down by the defendants. Regardless, the onus of proof of this exception is with
the defendants.
37. The plaintiffs plead and rely upon the December 24, 2020 Report of Agnes
Collamard, Special Rapporteur, appointed by the United Nations Human Rights
Council to investigate and report upon the January 8, 2020 shooting down of
PS752, referenced as AL IRN 28/2020. The Special Rapporteur included and
relied upon public statements and admissions made by Iran to prepare her
report. The plaintiffs incorporate the findings of that Report into this Statement
of Claim as facts that are true.
38. The plaintiffs further plead and rely upon the Annex to the August 15, 2020,
Report of the said Special Rapporteur referenced as A/HRC/44/38 that
investigated and reported on the use of armed drones for targeted killings. In
that Report titled, "The Targeted Killing of General Soleimani", the Special
Rapporteur concluded at paragraph 39 to the Annex that: 14
The US and Iran had not been in and have not been considered to be involved in an IAC (international armed conflict) before or after the strike and the strike occurred in a civilian setting in an area outside of active hostilities and in a non-belligerent state.
The Plaintiffs incorporate the factual findings of that Report into this Statement
of Claim.
39. The plaintiffs further plead and rely upon the definition of "armed conflict" as
follows:
Armed conflicts are defined as political conflicts where the use of armed force by two parties of which at least one is the Government of a State results in at least 25 battle-related deaths. A ‘major armed conflict’ is a war between states and a current political conflict within a State in which armed fighting or clashes between Government forces and its opponents result in at least 1,000 deaths in the course of the conflict. See Wallensteen, Peter, and Margareta Sollenberg, Armed Conflict and Regional Conflict Complexes, 1989-97, Journal of Peace Research, vol. 35, no. 5, 1998, pp.621-634; The Conflict Data Project, Department of Peace and Conflict Research, Uppsala University; http://www.pcr.uu.se/data.htm.
40. Alternatively, the plaintiffs plead that if there was an "armed conflict" in Iran on
January 8, 2020, the shooting down of PS752 by the defendants was not in
accordance with customary or conventional international law. Regardless, the
onus is on the defendants to prove that the shooting down of PS752 was in
accordance with customary or conventional international law as an exception
to the definition of terrorism in Section 83.01 (1) (b) of the Criminal Code.
41. The plaintiffs further plead that the shooting down of PS752 by the defendants
was not in the exercise of their official duties governed by international law as
there is no such law that permits the shooting down of a commercial airliner
under the facts and circumstances of this case. 15
42. The plaintiffs further plead and rely upon the International Covenant on Civil
and Political Rights (“Covenant” or "ICCPR"), a multilateral treaty adopted by
United Nations General Assembly Resolution, 2200A (XXI), on December 16,
1966 and in full force on January 8, 2020. The Covenant includes a
commitment by its parties at Article 6, to respect the right to life. Both the Islamic
Republic of Iran and Canada are signatories to the Covenant. The ICCPR has
been domesticated in Canada and is now part of Canadian law.
43. The plaintiffs plead that immediately following the shooting down of PS752, Iran
publicly admitted that it carried out the strike but alleged it was a mistake. The
plaintiffs plead and rely upon principles of International Humanitarian and
Human Rights Law which require that a mistake of fact be both honest and
reasonable. The onus of proving the defence of honesty and reasonableness
is on the defendants. Nevertheless, the plaintiffs state and facts of this incident
confirm that the defendants could not have had an honest and reasonable
belief that PS752 was a threat to the defendants.
44. The plaintiffs further plead that on January 8, 2020, PS752 did not pose a
military or any threat to the territorial sovereignty of Iran sufficient to justify the
destruction of the airplane by the defendants, which destruction was not in
accordance with any principle of international law.
45. The plaintiffs estimate damages in the amount of $1 billion, the particulars of
which shall be produced during the damages phase of this lawsuit. 16
46. The plaintiffs further claim punitive, exemplary and aggravated damages as
against the defendants and each of them, arising from their egregious,
inhumane, terrorist conduct in intentionally, recklessly, or alternatively,
negligently shooting down PS752 causing it to crash with the death of all on
board estimated to be in the further amount of $500 million.
47. The plaintiffs further claim their costs of this proceeding on a full indemnity
basis.
48. The plaintiffs bring this action under the Family Law Act, R.S.O. 1990, c. F.3
for damages arising as a result of the injuries and losses sustained by the
passengers’ family members, all of whom are direct victims of the terrorist
activities of the defendants.
49. The plaintiffs further plead that the hearing of this action take place before a
Justice of the Ontario Superior Court of Justice at Toronto, Ontario with a civil
jury.
March , 2021 GARDINER MILLER ARNOLD LLP Barristers & Solicitors 390 Bay Street, Suite 1400 Toronto ON M5H 2Y2
Mark H. Arnold (27894K) [email protected] Tel: 416-363-2614 Fax: 416-363-8451
17
WEINMAN ARNOLD LLP Lawyers 390 Bay Street, Suite 1400 Toronto, ON M5H 2Y2
Jonah Arnold (55149U) [email protected] Tel: 416-640-0508 Fax: 416-981-7865
Lawyers for the plaintiffs
MEHRZAD ZAREI et al -and- ISLAMIC REPUBLIC OF IRAN et al Plaintiffs Defendants Court File No. CV-20-00635078-0000
ONTARIO SUPERIOR COURT OF JUSTICE COMMERCIAL LIST
PROCEEDING COMMENCED AT TORONTO
FRESH AS AMENDED
STATEMENT OF CLAIM
GARDINER MILLER ARNOLD LLP Barristers & Solicitors 390 Bay Street, Suite 1400 Toronto ON M5H 2Y2
Mark H. Arnold (27894K) [email protected] Tel: 416-363-2614 Fax: 416-363-8451
WEINMAN ARNOLD LLP Lawyers 390 Bay Street, Suite 1400 Toronto, ON M5H 2Y2
Jonah Arnold (55149U) [email protected] Tel: 416-640-0508 Fax: 416-981-7865
Lawyers for the Plaintiffs