Ukrainian International Airlines Flight 752 What Families Need to Know

On January 8, 2020 Ukraine International Airlines Flight 752 crashed shortly after takeoff from Tehran airport. All 176 people on board were killed including many Canadian citizens and residents. This horrific tragedy has had, and will continue to have, a major impact on the lives of the victims’ families.

We have set out answers below to questions that families may have after providing a current update of recent developments.

These are general answers and you should speak to a lawyer if you would like answers that would apply to you.

JUNE 10, 2024 UPDATE: SUPERIOR COURT RELEASES LIABILITY TRIAL DECISION AGAINST UKRAINE INTERNATIONAL AIRLINES

The Ontario Superior Court has released its decision following the liability trial in the action brought by families of the victims of the crash of Ukrainian International Airlines Flight 752 on January 8th, 2020.

The trial in this action took place in Toronto between November 20th, 2023, and January 12th, 2024.

The Court concluded that UIA failed to show that it was not negligent and that it is therefore liable under the Carriage By Air Act to the family members for all their damages resulting from the deaths of their family members.

In a carefully written 78-page decision, the Court reviewed the standards applicable to risk assessments which must be undertaken by international airlines before flying and found that UIA failed to meet such standards.

For example, the Court noted UIA's failure to obtain material information available to UIA, such as the NOTAM released by the United States regulator the FAA. This was issued shortly after Iran launched missiles against US forces in Iraq and prohibited airlines under its jurisdiction from operating in Iranian airspace due to the risk of misidentification and miscalculation. It was these very risks that resulted in the loss of Flight 752 hours later.

The Court rejected UIA's defense based on its argument that it was only required to meet its legal obligations under Ukrainian law and could rely on the actions of others, such as the continued operation by some airlines and the absence of orders prohibiting flights by the Government of Iran to justify its decision not to delay the flight.

While the trial was traumatic for family members, importantly it provided answers to the question of why UIA chose to operate Flight 752 notwithstanding the actual and threatened military hostilities between Iran and the U.S. on January 8th.

The Court’s decision provides accountability for the families and means that the family members will recover all compensation owing under Canadian law.

The plaintiffs were represented by eight different firms. At trial, Blaneys focused on the inadequacies in UIA’s Security Risk Assessment which was the core of the case and led the cross examination of the sole fact witness on what happened at UIA in the hours leading up to the flight’s departure. It was this failure by UIA that determined the result at trial.

UPDATE JANUARY 5, 2022

$107 MILLION JUDGEMENT AGAINST IRAN

The Ontario Superior Court has released a judgment dated December 31, 2021, finding Iran liable for approximately  $107 million to some of the families who pursued individual actions against Iran.

STATUS OF CLAIMS AGAINST UIA

We have issued claims on behalf of our clients and have obtained defenses from UIA.  More than 90 families have retained lawyers to proceed with individual claims on their behalf. There is also a class action which will include the other families unless they choose not to be included.

The next step is referred to as discovery. This allows us to obtain evidence with respect to UIA’s actions and responsibility. Discovery must be completed before we can ask the Court for a Trial Date.  Doing this will put pressure on UIA to negotiate fair settlements and avoid unnecessary delays.

The examination of UIA was conducted in Paris in the week of December 6, 2021.  We are currently following up to ensure UIA fulfills its undertakings without delay.

It appears that at least 93 families will be proceeding with individual actions and the balance will be members of the class unless they choose to opt out.  We will seek to proceed with our actions and minimize any further delays caused by other actions.

All families have been given the opportunity to “opt out” which will allow them to control and pursue their individual claims.  It is important that if a family does wish to proceed with their own action that they “opt-out” of the class action by signing and submitting the opt-out form approved by the court by January 8, 2022.

IRAN PROPOSAL

The Iranian government has announced an intention to provide payments to families of $150,000 (US).  It is important that families understand that this does not reflect any agreement and the families are in no way bound by this.

The efforts to seek the truth, accountability and compensation from Iran are being pursued by the Canadian Government as part of a group of nations and our government has committed to pursuing all three goals as part of a state-to-state procedure.  This begins with the current negotiations. If they are not successful then potentially this may be resolved by arbitration, hearing or access to the International Court of Justice.  Similar past efforts have taken many years.  So while these efforts should be continued, families should focus on alternatives open to them, while maintaining pressure on our government to pursue its efforts.

STATUS OF CLAIMS AGAINST IRAN IN ONTARIO COURT

Actions have been issued in Ontario against Iran.  The claims have been issued and served. Iran has not responded and is in default.  This allows the plaintiffs to proceed to seek judgment.  This will require the Court to address the issue of whether Iran is subject to the jurisdiction of our courts given the issue of State Immunity.

Families proceeding with individual claims received judgment finding Iran liable and awarding damages in excess of $107 million to those families on January 2, 2022.

Other individual actions are pending on behalf of other families and will proceed to Court.    

It is important that if a family does wish to proceed with their own individual action against Iran that they “opt-out” of the class action by signing and submitting the opt-out form approved by the court by January 8, 2022.

QUESTIONS FAMILIES MAY HAVE

WHAT SHOULD FAMILIES EXPECT?

This is an overwhelming time for anyone related to the victims of UIA Flight 752. Not only do you have to deal with the grief but you must deal with all the challenges that arise.  One of these is dealing with the claims.

There is a huge amount of information and misinformation floating about.  The purpose of this summary is to address some of the questions families may have and to try and bring some clarity to the claim process.

While the claim process will never begin to address your grief, families should know that the claim process is well established and will result in a good financial result for families.  It will also help to ensure that the truth comes out.  The family will have meaningful control and there will be accountability.

Several families have issued claims which are now proceeding.  A claim under the Class Proceedings Act was issued and this will include any family member or estate that does not opt out of such action by the deadline.

WHY should FAMILIES MAKE CLAIMS?

After these tragic events, families seek the truth, accountability and compensation.  All are important and the claim process should ensure that all are addressed.

While financial compensation can never begin to fill the void left, it can help by addressing the financial consequences of such a loss and by providing a measure of meaningful accountability.

WHAT CLAIMS CAN BE MADE AND AGAINST WHOM?

Because this happened on an international flight, there are special rules that apply which change the process in very important ways.

Because of these unique rules, family members should make a claim against UIA without delay. UIA is strictly liable for at least a substantial amount of compensation, and probably liable for all your damages.

A claim has been made against Iran by Canada.  However this is governed by different rules and considerations and is not a claim brought by the families.  It should not delay or affect the decision to make the families’ claims against UIA, and does not mean the families cannot also make a claim against Iran..

WHEN SHOULD A CLAIM BE STARTED?

Families are dealing with many pressing matters.  However, such claims must be brought within the permitted periods.

It is important to realize that the sooner a claim is started, the sooner it is likely to be concluded.  So the sooner a family member is able to address the claim, the better.

Some families have already issued and served their individual actions which are now proceeding. We have issued and served claims on behalf of the families that have retained us and have obtained defenses from UIA in those actions.  This allows us to proceed with the actions.  By minimizing delays we will be in a position to obtain full discovery of the evidence from UIA, negotiate timely fair settlements, or avoid delays in the trials should they be necessary.

WHERE CAN A CLAIM BE MADE?

The rules are unique and complex because they are subject to international law and considerations.

Different families may have different choices.  But if the passenger bought a Canadian ticket or resided in or was flying to Canada, then it is likely that their family may claim against UIA in Canada or Ukraine.

This is true wherever the family members may live in the world.

The claim against Iran may be made in different ways or places, including an international court or tribunal.  It is possible that it can also be made in Canada though the basis for a claim in a Canadian court. While such claims have to address state immunity an Ontario court has already found that such immunity does not apply in this case.

WHAT IS CONSIDERED IN YOUR CLAIM?

This may vary according to whom the claim is made against and where the claim is advanced.

For those families who claim in Canada against UIA, the amount of the damages will be determined under Canadian law.

For the claims against UIA in Canada, compensation is normally assessed on an individual basis.  We look at the loss of each family member and obtain the evidence necessary to demonstrate what these losses mean for that family member.  It is very important that the claim of each family member is carefully considered individually.

In Canada compensation is generally awarded for any economic loss.  This includes the loss of any future financial support.  The damages also reflect the loss of services and other support family members provide for each other, including care, guidance and companionship.  Compensation is not awarded for grief.

The claim against Iran is not limited in this way.  It is quite possible that compensation which reflects other considerations may lead to additional compensation.

It is also possible that interim payments will be made similar to the payments offered by the Canadian Government and families may be entitled to other benefits or assistance. It is possible to seek advance payments from UIA.

WHAT EVIDENCE DO WE NEED TO HAVE FOR a CLAIM AGAINST UIA?

You will not need to have evidence with respect to how the crash occurred.

It may be helpful to have any evidence with respect to the ticket or how it was purchased.

We will also need a variety of evidence in order to prove the full amount of your claim. The list is detailed but the main point at this stage is to ensure that no evidence is lost.

DO I NEED A LAWYER?

You are not legally required to have a lawyer.  However, given the many issues involved, we believe all families should have a competent, experienced and trusted lawyer.

HOW DO WE CHOOSE A LAWYER?

Grief puts us in a vulnerable position. It compromises our ability to make decisions. You should be very careful to select a lawyer who has the necessary experience and ability and you should be comfortable with the lawyer.  You will have to work with the lawyer and rely heavily on them.  So you should be careful to make sure you make the right choice.

While we believe a claim should proceed as soon as possible, it is more important that you retain the right lawyer for you.

There are several ways to find a lawyer.  However we believe the best way is to investigate carefully to ensure the lawyer has the particular experience and expertise for this claim.  You should be very cautious in doing so. Look for specific and detailed facts about the lawyer’s experience, not general descriptions of experience, ability or expertise.

You should then look for arms-length recommendations and meet so that you can ask any questions you have and see if you feel comfortable with the lawyer.  Many are uncomfortable meeting in person due to the Covid 19 pandemic but meetings can be arranged using services like WebEx or Zoom.

HOW WOULD WE PAY THE LAWYER?

There are several different ways to pay lawyers.  However, in cases of this type families choose to pay on the basis of what is referred to as a contingent fee.  This means that you do not pay anything until the claim is successfully completed. There is no need to provide any funds or agree to pay a litigation funder. When the claim is settled the lawyer is paid based on the terms of the written retainer agreement signed at the time the lawyer is first retained.

These terms may vary and different approaches can be taken.

It is common for lawyers to be prepared to meet with families before they are retained to answer questions without charge.

HOW LONG WILL IT TAKE TO SETTLE MY CLAIM AGAINST UIA?

No one can say with certainty how long this will take.  However, the period tends to be one of three:

• In some cases the claim can be properly assessed and settled within months;
• More often it takes about two years from the time the claim is formally made;
• If the case does proceed to trial, this may take 3 to 4 years.

In all these cases the time runs from the time your individual claim is issued. It should also be noted that as a result of Covid our trial courts have had to delay proceedings and there is a resulting backlog in cases.

It can take longer in some cases if the parties take steps to delay the process or the defendant  refuses to negotiate.  While in recent years this has been rare, we believe that UIA will not be prepared to negotiate more substantial claims for some time and it is possible that the cases will have to proceed to trial. As a result, we are doing everything we can to proceed with the litigation without unnecessary delays.

The proceedings in the Court have already delayed the claims and may continue to do so depending on the specific terms of any court orders.  We are cooperating with other experienced and capable lawyers to minimize the harm that may result.

We have now obtained an order of the Court setting out a litigation plan intended to insure the earliest possible trial date.

AGAINST IRAN OR OTHER PARTIES?

It is more likely that this process will take years.  This is one reason that it is very desirable to proceed with the claim against the UIA without delay.  The claim against Iran can be separate and may proceed separately.

It is desirable to coordinate both claims. The Canadian Government, which is likely to proceed with its current claim against Iran, is likely to co-operate with families and their lawyers.  But there is no reason not to proceed with the claim against UIA now.

If a family does wish to make an individual claim against Iran, this can be done in a separate individual claim which may minimize the risk that this will delay the claim against UIA.

The Canadian Government and others have also provided assistance programs intended to provide some short-term relief to families.  These are independent of the families’ rights to compensation.

Claims for any insurance benefits should be pursued and there are other sources of assistance available.

WHO CONTRoLs THE CLAIM PROCESSES?

In an individual action against UIA, you control your claim.  (Class actions are different and are discussed below.) You should be fully advised of all material information and given meaningful choices to consider. You choose your lawyer and you provide instructions to your lawyer. 

It is probable that the Canadian Government will control the state-to-state process in the claim against Iran.  However, it is likely that they will work with families and their lawyers.

You should know that no one can speak for you other than your lawyer and that no one, including the lawyer, can settle your claim without your express agreement.  We only settle cases on the basis of a written Direction which sets out the precise terms of the settlement and exactly how much you will receive after payment of all expenses.

WHAT EXPERIENCE HAVE YOU HAD WITH THIS TYPE OF CLAIM?

We have acted for families and those injured in a long list of fatal aviation losses arising from crashes caused by pilot and equipment failures and also planes attacked by missile, bomb and hijackers. Some of these cases are listed below. 

(For a fuller list go to https://www.blaney.com/practice-areas/aviation)

KOREAN AIR LINES 007

This aircraft was shot down by the Soviet Union.  We acted for the families of the Canadian passengers.

AIR INDIA 182

This flight was destroyed by terrorists’ bomb killing 329 people on board.  In addition to acting for our clients, Rod Winsor was appointed by the Ontario Supreme Court as one of the four lawyers to act as the Plaintiffs’ Committee to take the lead on the difficult liability portion of that case.

This case included claims against the airline but also a variety of other parties, including the Canadian Government, on the basis that they shared responsibility for allowing the bomb on board the aircraft.

AIR CANADA CINCINNATI FIRE

A fire broke out on a DC-9 on a flight from Texas to Canada with 41 passengers. We acted for one of the families of a passenger who was killed and 3 of the survivors who were injured.  We also coordinated the efforts of the Canadian plaintiffs’ lawyers.

HIJACKINGS AND CLAIMS

We acted for Canadian victims in two hijackings, the Lufthansa Munich hijacking and the Ethiopian Airlines 961 which resulted in the crash of the aircraft.

Most recently we acted for the Canadian family of a victim in the crash of EgyptAir 804 where it was initially alleged that it had been caused by a bomb.

WHAT IS A CLASS ACTION AND IS IT DESIRABLE IN THIS CASE

A class action is one where a Representative Plaintiff sues on behalf of all the members of a class.  It is common in claims where the size of the individual claims is such that no one person can justify the cost of proceeding with the claim and other actions where the claimants have no practical ability to pursue individual actions even if they have a large claim. In those cases a class action can provide access to justice where no claim would otherwise be brought.  This is an important benefit of class actions.

There are advantages and disadvantages to class actions.  We have extensive experience with class actions having successfully acted for the Class and defendants over decades.   However we do not believe a class action provides net benefits in this case and are proceeding with individual actions and taking steps to try to minimize the adverse consequences of the other proceedings on the families.  Over 90 families have decided to proceed with such individual actions.

Effect of Certification

You will in any event not be required to be a member of the class and you will be able to proceed with your own claim.

You are likely to have to file a form indicating your desire to proceed with your own claim rather than being part of the class action.  This is called the Opt-Out Form.

Opting out requires you to take formal steps within a limited period so that if you miss the deadline you will be deemed to be a member of the class whether you want to or not. If you have already issued an individual action you will be able to continue such action and not have to start over but must still complete the opt-out form.

WHAT IS THE CURRENT STATUS OF THE VARIOUS PROCEEDINGS?

Individual Actions against UIA

Claims have been issued in Canada on behalf of families of most of  the victims.  These have been served on UIA.

We are always prepared to enter into settlement discussions with UIA on behalf of our clients. However, we believe that the best way of achieving results is to ensure that the actions are not delayed unnecessarily.  This will avoid any lost time in the event that the settlement discussions are not successful.

Class Actions against UIA

This action is proceeding and we are getting close to being able to seek a trial date. The issue of UIA’s liability is common to the individual actions.  While most families are proceeding with individual actions, the issue of liability of UIA will have to be dealt with together with the class action as it is a common issue.

State to State Claim against Iran

The government of Canada has publicly stated that it is pursuing such a claim. The government is working with other governments with substantial concerns. At some point the Canadian government may decide to pursue such a claim on its own. There are precedents for such claims and it is possible that additional compensation will be available for families as a result of these proceedings.

We and other plaintiffs’ lawyers are cooperating with the Canadian government and seeking to coordinate all efforts for the benefit of families.

While we support these efforts, it should be realized that in previous similar cases many years have passed before resolution. The delays in the two most similar cases were 8 and 14 years.

Actions in Canadian Courts against Iran

Some actions have been issued in Canada against the State of Iran and related parties. Such claims can be pursued individually or under the Class Proceedings Act.

These Canadian actions raise a number of procedural and other substantial issues which need to be addressed.

Those families who do not wish to be involved in these proceedings may rely on the Canadian Government State to State Claim.  They can also issue individual actions but must do so within the applicable limitation period.

This article is intended to provide general information and comment for families that we act for or are not represented by other law firms.  It is not intended to provide legal advice. You should speak to a lawyer if you would like answers that would apply to you.  This information is provided for the benefit of the public and those families who have not retained their own lawyers.  If you have a lawyer all questions should be directed to them.

This article has been prepared by Roderick S.W. Winsor at 416-593-3971 or rwinsor@blaney.com. For more information about Rod please visit: https://www.blaney.com/lawyers/roderick-winsor

Any updates to this article will be published on our website www.blaney.com/flight752 when new information is made available.