Court File and Parties

COURT FILE NO.: CV-20-00634770-00CP DATE: 20210222 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: OMID ARSALANI, Plaintiff AND: ISLAMIC REPUBLIC OF IRAN, ISLAMIC REVOLUTIONARY GUARD CORPS, UKRAINE INTERNATIONAL AIRLINES PJSC, and JOHN DOE MISSILE OPERATOR, Defendants

BEFORE: Justice Glustein

COUNSEL: Tom Arndt, Megan B. McPhee, Aris Gyamfi and Rachael Sider for the plaintiff Clay Hunter, for the defendant Ukraine International Airlines PJSC Paul Miller, Joe Fiorante, and Valerie Lord, for the proposed intervenor Jane Doe Vincent Genova and Douglas Worndl, for the proposed intervenor John Doe Roderick S.W. Winsor, for the proposed intervenors Razi Dhirani, Arif Dhirani, and Rehana Dhirani Jordan Assaraf and Michael Rattray, for the proposed intervenor Jane Doe

HEARD: February 16, 2021

Reasons for Decision

Nature of Issue and Overview

[1] The plaintiff brings this motion for an order certifying the present action as a class proceeding under s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the CPA), and for related relief including approval of the Certification Order (the Order), the Notice of Certification (the Notice), the Litigation Plan, and the Opt-out Form.

[2] The proposed intervenors bring motions seeking leave to intervene in the certification motion.

[3] Certification of the action was not at issue before the court. Neither the defendant Ukraine International Airlines PJSC (UIA) nor any of the proposed intervenors opposed an order certifying the action as a class action. The defendants Islamic Republic of Iran (Iran) and Islamic Revolutionary Guard Corps (IRGC) have been noted in default.

[4] The action arises out of the crash of UIA Flight PS752, which was shot down by the defendants IRGC and John Doe Missile Operator on January 8, 2020. All 176 passengers and crew were killed.

[5] Given the significant nature of the damages suffered by passengers [1] and family members, many of those individuals have retained counsel to bring “mass tort litigation” on their behalf. The families of at least 93 of the deceased passengers have retained counsel to prosecute actions outside of the class action. Although the vast majority of those individuals have not yet issued a claim, they have retained counsel to do so.

[6] Before the court at this hearing, counsel for the mass tort litigants raised concerns about the proposed terms of the Order, the Notice, the Litigation Plan, and the Opt-out Form. In particular, the principal concerns related to the proposed opt-out procedure and the form and dissemination of the Notice to the prospective class members.

[7] Counsel for UIA also raised concerns with certain terms in the proposed certification documents.

[8] I order that the action be certified as a class action, with modifications to be made to the proposed terms of the Order, Notice, Litigation Plan, and Opt-out Form in accordance with the reasons I set out below. If counsel cannot agree on the terms of the revised Order and certification documents, I will conduct a further hearing or case conference to finalize the terms.

Background Facts

[9] In my reasons on the carriage motion in the present matter (Arsalani v. Islamic Republic of Iran, 2020 ONSC 6843), I reviewed the relevant background facts (as accepted as true from the pleadings), at paras. 23-29:

On January 8, 2020, Flight PS752 travelling from Tehran Imam Khomeini International Airport to Kiev, Ukraine was shot down shortly after takeoff. All 176 passengers and crew were killed.

IRGC admitted that it shot down the aircraft by a missile launched from its air defence systems, and mistook Flight PS752 for a US cruise missile.

The Crash occurred hours after Iran and/or IRGC fired missiles at and struck US military bases in Iraq.

In response to the missile attacks against the US military bases and before the Crash, the US Federal Aviation Administration (FAA) issued a ban that all American civilian aircraft avoid Iranian airspace. The FAA ban was followed by several other countries, including Ukraine.

Iran did not close its airspace after it launched missiles on the US military bases in Iraq. A request was made for a no-fly zone in the area before the Crash and that all commercial flights in Iran be grounded until tensions with the US cooled off but for reasons that are unclear this request was rejected.

At the time of the Crash, Iran was on the highest state of defensive alert and the IRGC was “totally prepared for a full-fledged war”.

Flight PS752 took off despite the flight ban. UIA did not change the flight route to avoid sensitive Iranian ballistic missile facilities, and failed to notify Iranian authorities that it was departing later than scheduled.

Certification

[10] It is not contested that the requirements for certification under s. 5 of the CPA are met. In brief:

(i) The statement of claim discloses a cause of action in negligence against (a) Iran, IRGC, and John Doe Missile Operator (collectively, the Iran Defendants), and (b) UIA. I cannot find that the negligence claim against the Iran Defendants is certain to fail based on a state immunity defence (for the same reasons I considered in my carriage motion decision, at paras. 54-88);

(ii) There is an identifiable class of those who have a claim. The proposed class of passengers and family claimants are defined by objective criteria without reference to the merits of the action. There is a rational connection between the proposed class definition and the proposed common issues relating to the conduct of UIA and the Iran Defendants;

(iii) The proposed common issues are necessary to the resolution of each class member’s claim and a substantial ingredient of those claims. Allowing the action to proceed as a class action will avoid duplication of fact-finding and legal analysis;

(iv) For those passengers and family members who become class members, a class proceeding is the preferable procedure for the resolution of the common issues in an action and provides a fair, efficient, and manageable method for advancing the class members’ claims. All class members have a common interest in the determination of liability; and

(v) The proposed representative plaintiffs share a common interest with the other class members and will vigorously prosecute the action. They will fairly and adequately represent the interests of the class and do not have a conflict of interest with the other class members on the common issues.

[11] For the above reasons, I certify this action as a class proceeding.

Scope of Review of Certification Documents under s. 12 of the CPA

[12] Under s. 12 of the CPA, the court can make any order it considers appropriate to ensure the fair determination of the proceeding. Consequently, I do not address the lengthy submissions of the parties with respect to whether the proposed intervenors should be granted intervenor status under either s. 14 of the CPA or Rule 13 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[13] It is important to ensure that all prospective class members can fairly understand the consequences of deciding whether to opt out of the class action. The opt-out procedures must be clear so as not to prejudice the rights of any passenger or family member. Notice must be as effective as possible, without undue interference in the existing lawyer-client relationship between the mass tort litigants and their counsel. All of these issues must be considered by the court under s. 12 of the CPA.

[14] All passengers and family members are prospective class members. They all have the choice to either pursue a class action, remain or become plaintiffs in the mass tort litigation, bring an individual action, or not pursue any claim. The certification documents must be as clear as possible to provide all prospective class members with the information they need to decide whether to participate in the class action arising out of the crash of Flight PS752.

[15] Consequently, under s. 12 of the CPA, I consider the submissions of all interested parties.

Issues Arising Out of the Proposed Opt-Out Procedure

[16] The opt-out procedure proposed by class counsel requires every passenger and family member to deliver the signed Opt-out Form to class counsel within 75 days from the order, and special opt-out procedures for minors, persons under a disability, and estate representatives. [2]

[17] The mass tort litigants oppose the above terms as either causing confusion, imposing unreasonable deadlines on prospective class members to decide which litigation path (if any) to follow, and incurring unnecessary costs for those passengers and family members who want to opt out and pursue the mass tort litigation.

[18] I address each of these issues below.

Opt-Out Procedure and Terms of the Opt-Out Notification in the Notice

[19] The proposed opt-out procedure in the Notice only provides for one mechanism for a valid opt-out: each prospective class member must personally deliver a signed Opt-out Form to class counsel.

[20] The mass tort litigants submit that those who have retained counsel should not be required to individually sign and deliver opt-out forms to class counsel. Rather, they submit that (i) any counsel retained by a client can opt out their clients by sending a letter to class counsel with a list of clients and (ii) all family members would be considered to have opted out if one family member retains counsel and opts out of the class action.

[21] The mass tort litigants also propose that the opt-out procedure set out the alternative of potential class members joining the mass tort litigation.

[22] For the reasons that follow, I do not adopt either the class counsel or mass tort litigants’ proposal.

(i) The opt-out forms must be individually signed but can be delivered by counsel retained by the client

[23] I reject the submission of the mass tort litigants that they should be able to opt out of the class action by having counsel send a list of retained clients. Just as those individuals made their own decision to retain counsel by signing a retainer, they must make their own opt-out decision by signing an opt-out form if they intend to continue in the mass tort litigation. It is no more difficult or cumbersome to obtain a signed opt-out form from those same clients, which can then be forwarded to class counsel.

[24] A letter listing clients raises issues of uncertainty. Delivering signed opt-out forms provides the certainty required to determine whether a passenger or family member has opted out of the class action.

[25] Passengers and family members who have retained counsel do not need to individually send their opt-out forms to class counsel. Given the hundreds of passengers and family members who have retained counsel in the present case, those clients can instruct their counsel to forward their opt-out forms to class counsel, to avoid any confusion or uncertainty as to whether their opt-out forms were properly delivered and received.

(ii) A family member who has retained counsel cannot opt out all family members who have not retained counsel

[26] The mass tort litigants propose that all family members should be considered to have opted out if one family member retains counsel and opts out of the class action. I do not agree.

[27] One family member who has retained counsel (in the mass tort litigation or otherwise) cannot opt out all other family members. The decision to participate in the class action is an individual decision which must be made by each prospective class member. There is no basis to require family members to be bound by the opt-out decision of one family member who chooses to retain counsel in the mass tort litigation or in any other individual action.

[28] While there may be some bifurcation of claims if certain family members pursue their claims in mass tort or individual litigation and other family members bring claims in the class action, the case management of such claims can be addressed by the court. There is no basis to require all family members to opt out of the class action only because another family member has chosen to retain counsel.

(iii) A separate opt-out notification in the Notice is required for prospective class members who have retained counsel

[29] A separate opt-out notification in the Notice is required for passengers and family members who have retained counsel. Those clients should be directed to contact their lawyer to ensure that those potential class members understand the steps to be taken if they wish to remain with their current counsel and proceed with the mass tort or individual litigation. Those individuals have retained counsel, and should not be conflated with those class members who have not retained counsel and could speak to class counsel about their rights.

[30] Under the current proposal of class counsel, the only contact information in the Notice would be that of class counsel, with no indication to the many prospective class members who have retained counsel that those clients should be seeking advice from their lawyers as to their rights and options.

[31] In most class actions, the court does not require a separate opt-out notification to potential class members who have already retained counsel. It is expected that those individuals will consult with their lawyer and then deliver an opt-out form if the client decides to do so.

[32] However, in the present case, hundreds of passengers and family members have already retained counsel in the mass tort litigation, and there are other individual actions as well. The opt-out procedure in those circumstances should not cause confusion as to who is acting for the mass tort litigants or the individual clients. These represented clients should be directed to their lawyers for advice as to their rights and options.

[33] Consequently, I order that the Notice provide for a separate opt-out notification which makes it clear that those passengers and family members who have retained counsel should contact their counsel with any questions about the Notice.

[34] A client cannot be precluded from speaking to another counsel about their rights, subject to the Rules of Professional Conduct and professional courtesy between counsel (the scope of which I do not address in these reasons but may become an issue upon certification depending on the conduct of counsel). The court can address any improper conduct by counsel if it arises.

(iv) It is not appropriate for the Notice to advise of the mass tort litigation

[35] The mass tort litigants propose that the Notice advise all class members of the alternative that they could bring an action within the mass tort litigation. I do not agree.

[36] It is not appropriate to set out litigation options for prospective class members in a certification notice. The Opt-out Form already puts the prospective class member on notice of the consequences of opting out of the class action by requiring an individual who opts out to state:

I understand that if I opt out of the class action, I will not be entitled to share in any recovery or take any benefit of any ruling in this case, but I will be free to bring my own claim if I wish.

[37] Further, with a separate opt-out notification for those potential class members who have retained counsel, and the existing language (in block letters and bold) that advises potential class members that they must opt out “If you wish to exclude yourself from the action”, there is no basis to set out alternatives of either mass tort litigation or an individual action. Any potential class member can always decide to opt out of a class action and bring an individual action (or join in the mass tort litigation). It is not the role of a notice of certification to set out the particular individual or mass tort actions which have been brought.

Length of the Proposed Opt-Out Period

[38] Class counsel proposes a 75-day period from the date of certification for prospective class members to opt out of the class action. After that date, any passenger or family member who has not opted out would permanently be a litigant in the class action.

[39] The mass tort litigants propose varying opt-out deadlines, with a minimum of six months from the certification order and a maximum of January 8, 2022, which is two years from the crash.

[40] UIA submits that (i) January 8, 2022 is the applicable limitation period for claims under the Montreal Convention (incorporated into the Carriage by Air Act, R.S.C. 1985, c. C-26), and (ii) a class action does not toll the two-year limitation period under the Montreal Convention. I make no finding on the merits of the submission, but it is relevant to the appropriate opt-out period.

[41] For the reasons that follow, I adopt the date of January 8, 2022 as the opt-out deadline.

[42] The number of passengers and family members who can make claims under the Montreal Convention runs into the hundreds (and possibly more). Under the Montreal Convention, those family members include a spouse, parents, stepparents, brothers, sisters, children, adopted children, stepchildren, grandparents, grandchildren, a person cohabiting with the passenger in a conjugal relationship of at least one year before the death of the passenger, and any person for whom the passenger stood in the place of a parent.

[43] In the circumstances of the present case, each of the potential claimants under the Montreal Convention has a significant decision to make as to whether to join the class action or the mass tort litigation, bring an individual action, or not bring any action. There is no basis to truncate the opt-out deadline before the potential limitation period. This is not a class action with minimal damages and little likelihood of individual claims. Consequently, a longer opt-out period is required.

[44] Further, passengers or family members living in Iran may have additional concerns about joining a class action that names the Iran Defendants. I make no finding on the consequences of such a decision. However, an extended period of time will permit those potential class members to consider whether they wish to participate in the class action, join the mass tort litigation (which only names UIA as a defendant), bring an individual action, or not bring any action at all (the latter three options requiring a signed opt-out form).

[45] In the present case, the passengers and family members have suffered as a result of a tragic crash. Beloved family members were killed, and the losses attributable to income or care, guidance and companionship may be significant. In order to consider whether to opt out of the class action, these potential class members will have to address issues such as their personal grief and whether they seek to pursue the Iran Defendants, with some non-resident passengers and family members possibly being unfamiliar with the Canadian legal system.

[46] By extending the opt-out period to January 8, 2022, all passengers and family members can make their choice based on the most information available, without mandating membership in the class action on an arbitrary earlier date. Given the existence of significant mass tort litigation led by senior counsel, as well as a class action led by experienced counsel, a short opt-out period is unfair to all passengers and family members who may seek to pursue (or not pursue) litigation.

Opt-Out Procedure for Claims of Minors and Mentally Incapable Persons

[47] The Order at paragraph 14 provides that “no person who is mentally incapable or a minor may opt out without leave of the Court after notice to the Public Trustee and/or Children’s Lawyer, as appropriate”.

[48] The Notice provides that:

No person may opt out a minor or mentally incapable person without permission of the Court, after notice to the Children’s Lawyer of Public Guardian and Trustee, as applicable to Class Members resident in Ontario, and to comparable or equivalent entities in other provinces, territories, or countries, as applicable to Class Members resident in other provinces, territories, or countries.

[49] At the hearing, class counsel modified that position to propose a “provisional” opt-out of a minor or mentally incapable person, subject to court approval upon notice to the Public Trustee and/or Children’s Lawyer or equivalent entities. Class counsel suggested that such approval could be obtained on an omnibus motion brought by the mass tort litigants acting on behalf of minors or mentally incapable people, on notice to the Public Trustee and the Children’s Lawyer.

[50] The mass tort litigants object to both proposals. They rely on Rule 7 of the Rules of Civil Procedure which does not require prior court approval to bring an action on behalf of a minor or mentally incapable person.

[51] For the reasons below, I agree with the position of the mass tort litigants.

[52] Under Rule 7.02(1), “[a]ny person who is not under disability may act, without being appointed by the court, as litigation guardian for a plaintiff or applicant who is under disability.”

[53] Requiring a litigation guardian to obtain leave of the court on notice to the Public Trustee or the Children’s Lawyer, in order to opt out of a class action, is inconsistent with the ability of a litigation guardian to bring an action under Rule 7.02(1). There is no basis to impose court approval on a decision to opt out of a class action when no such obligation is imposed on the same litigation guardian who chooses to retain counsel in the mass tort litigation on behalf of the minor or mentally incapable person.

[54] It should not be more difficult to opt out of a class action than to bring an action. The requirement sought by class counsel would impose needless cost and confusion.

[55] Consequently, counsel retained by a passenger or family member can deliver signed opt-out forms by a litigation guardian on behalf of minors and mentally incapable persons who have retained them, while any other prospective class member who is a minor or mentally incapable can opt out of the class action by delivering an opt-out form signed by the litigation guardian.

Opt-Out Procedure for Passenger Estate Claims

[56] Class counsel proposes in the passenger Opt-out Form that an estate representative can only opt out by providing proof of “legal authority to act on behalf of the estate”, by attaching “a copy of the Certificate of Estate Trustee and/or copy of will naming you Trustee and/or administrator”.

[57] At the hearing, class counsel modified the submission by proposing that a provisional opt-out form could be delivered if the determination of estate representative had not yet been made.

[58] The mass tort litigants submit that no proof be required, with opt-outs being valid for a deceased passenger if the person who signs the opt-out form states that they do so as the executor, administrator, or trustee representing the estate.

[59] For the reasons that follow, I accept the alternative submission of class counsel.

[60] Under Rule 9.01, an executor, administrator, or litigation administrator appointed for the purpose of the proceeding must bring an action on behalf of the estate. Under Rule 9.03(3), a proceeding brought in the name of a deceased person shall not be treated as a nullity, but will require an order that the proceeding be continued by the executor, administrator, or litigation administrator appointed for the purpose of the proceeding.

[61] Consequently, a representative of the estate must be named to pursue litigation.

[62] Allowing an opt-out to be valid simply based on a statement that an individual claims to be the executor, administrator, or litigation administrator raises concerns that there may be disputes as to who should act in that capacity. Allowing an opt-out without any proper authority engages the risk that the passenger’s decision to opt out may be invalid or subsequently challenged.

[63] The initial proposal of class counsel to require approval of the estate representative by the opt-out date could unfairly prejudice the interests of proposed class members. Whether because of delays (particularly given the COVID-19 pandemic) and costs necessary for either an administrative application for approval or a court order, the proposed approval requirement in the Opt-out Form could vitiate the right of an estate representative to opt out and either pursue the mass tort litigation, an individual claim, or no claim at all, simply due to delay which is outside the control of the proposed estate representative.

[64] Consequently, counsel for the mass tort litigants (or any other client represented by counsel) can deliver to class counsel either (i) a signed provisional opt-out form on behalf of their clients if determination of the estate representative has not yet been made, or (ii) a signed opt-out form with court or administrative approval attached. An unrepresented passenger estate claimant could opt out in the same manner.

Issues Respecting the Notice

The Sufficiency of the Notice

[65] The mass tort litigants submit that the Notice creates confusion because it does not contain an explanation of their rights. I have addressed that issue by requiring the Notice to include a separate provision for opt-outs by those passengers and family members who have already retained counsel.

[66] As I discuss above, at para. 47, the Notice also contains a requirement for court approval for opt-outs by minors and mentally incapable persons, upon notice to the Public Trustee and/or Children’s Lawyer or their equivalent entities.

[67] For the reasons I discuss above, at paras. 51-54, such a requirement is to be removed from the Notice as well as the Opt-Out Form.

The Distribution of the Notice

[68] The mass tort litigants submit that (i) the Notice may not reach many passengers or family members located in Iran due to government censorship of the Internet, emails and the media; and (ii) delivery of the Notice is particularly important as many passengers or family members living in Iran could end up as litigants in a class action against the Iran Defendants, which, counsel asserts, could raise security concerns for some potential class members.

[69] However, section 17(6) of the CPA does not require notice to be perfect. Rather, the court must “ensure that the notice given is the best notice that is practicable in the circumstances”.

[70] There was no suggestion by any of the mass tort litigants of any distribution method other than as proposed by class counsel: email, direct mail to known addresses, class counsel website, and publication in certain print media that attracts readership from the Iranian community in Canada. Regardless of the alleged censorship issue in Iran (an issue on which I do not opine), no proposed notice method can alter the censorship practices of a foreign state.

[71] Class counsel’s website has been an effective source for information about the action. It has seen significant traffic which has accelerated in recent weeks leading to the certification motion. Upon certification, the notice of certification will be posted to the website in both English and Farsi.

[72] On the facts of the present case, the best practicable approach is to ensure that as many Canadian and international class members receive direct notice by email or direct mail, or learn of the class action through the media or the class counsel website. Individuals who become aware of the class action can then, if they so choose, contact family members who may not have access to uncensored information.

[73] This is the best practicable approach to provide all prospective class members with the notice necessary to make an informed decision on whether to opt out of the class action, either because of a decision not to pursue a claim, to bring an individual action, or to join the mass tort litigation.

[74] The mass tort litigants submit that the identity of many family members may not be available from the proposed use of passenger manifests and family member information provided in “Article 28” advance payments under the Montreal Convention. UIA submits that it was in its best interests to obtain as much family information as possible since Article 28 advance payments are made on a per passenger basis. The mass tort litigants submit that UIA made some advance payments without requiring full disclosure of all extended family members.

[75] However, regardless of the efficacy of the contact information from UIA derived from the Article 28 advance payments, the “best practicable” approach remains the proposed notice plan, with the available contact information from UIA as part of the efforts being taken to ensure notification to as many Canadian and international potential class members as possible.

[76] The only change to the proposed dissemination of the Notice which I make is based on a submission which was adopted by class counsel at the hearing. In the Notice, recipients will be asked to contact any passenger or family member (as defined in the Montreal Convention), and to forward the certification materials if possible. While in no way assuring notice to all prospective class members, the additional language increases the likelihood of notice to more passengers and family members who might not otherwise receive notice due to censorship or for any other reason.

The Proposed Anonymity Provision in the Notice and Litigation Plan

[77] Class counsel proposes the following “Anonymity for Class Members” provision in the Notice:

ANONYMITY FOR CLASS MEMBERS

Class member’s names will not be disclosed to the defendants. Class Members will remain anonymous and only the representative plaintiffs [sic] names will be public or known to the defendants. If the action proceeds to the individual issues stage, the Class Proceedings Act, 1992 empowers the Court to craft an individual claims process designed to maintain individual claimants’ anonymity. [Emphasis and block letters in original text.]

[78] Class counsel also proposes language at paragraphs 43 and 44 of the Litigation Plan concerning the intention to preserve anonymity.

[79] The mass tort litigants submit that the proposed provisions are misleading since there can be no guarantee of confidentiality. I agree.

[80] By way of example, UIA advised the court that because of the U.S. sanctions on Iran, any payments to Iranian class members would require disclosure of the identity of those who receive payment. Further, UIA submits that without disclosure of the identity of class members, settlement would not be practicable.

[81] The issue of anonymity may be particularly relevant to potential class members in Iran, who will have to decide whether to participate in an action against the Iran Defendants.

[82] It may be possible at a later hearing or case conference to put some anonymity protection into place to address such concerns. However, potential class members should not be assured of any anonymity which has not yet been protected.

[83] Consequently, I order that the anonymity paragraph be deleted from the Notice, and that paragraphs 43 and 44 be deleted from the Litigation Plan.

Disclosure of Telephone Numbers for Distribution of the Notice by Text Message

[84] UIA advised that the vast majority of contact information it obtained in the Article 28 process was provided by counsel for the claimants. Such information may have included email addresses, direct addresses, and telephone numbers.

[85] The mass tort litigants object to UIA providing client telephone numbers to class counsel for the purpose of text notification of the Notice (as proposed in paragraphs 10(a) and 16 of the Order and paragraph 15 of the Litigation Plan).

[86] I agree that the contact information for clients is confidential and was provided to UIA by counsel for the Article 28 claimants or directly by unrepresented claimants, only for the purpose of obtaining an advance payment.

[87] The mass tort claimants do not object to UIA providing the email and direct addresses of their clients so that they can be notified of the class action, but they do object to their telephone numbers being disclosed.

[88] I find the position of the mass tort claimants to be reasonable. No notification can take place without email and direct addresses, which are in UIA’s possession. However, unless there is no email or direct address available for an Article 28 claimant, telephone contact information is not required for notice purposes, and it is an unnecessary infringement on the confidentiality between lawyer and client.

[89] Consequently, I order that telephone numbers not be provided unless (i) there is no email or direct address available for potential class members from UIA and (ii) UIA contacts counsel or the claimant (if not represented) who filed the Article 28 claim, so that the unrepresented claimant or the counsel can advise if an email address or direct address can be obtained.

Issues Respecting the Certification Documents

[90] The Notice, Litigation Plan, Opt-out Form, and Order will need to be modified to reflect the changes ordered above.

[91] I do not purport to canvass all such necessary changes in these reasons. By way of example, the Litigation Plan would require changes to (i) the proposed dissemination of the Notice by text message through telephone numbers (at para. 10(a)), (ii) the opt-out date (at para. 13), and (iii) the restriction of contact information to be provided by UIA to class counsel for notification purposes (at para. 15).

[92] Changes will also be required to the Litigation Plan to ensure notice (where applicable) to counsel for all non-class action litigation (to the extent class counsel is made aware of the retainer) of post-certification steps, case management conferences, discovery, dispute resolution, common issues resolution, and delivery of expert reports. Coordination will be required to ensure efficient and prompt resolution of liability issues concerning UIA which are common to the class action and non-class action litigation.

[93] Changes will be required to the Opt-out Form for passengers to permit the provisional opt-out for estate representatives.

[94] With respect to the Order, changes will be required to:

(i) modify the manner of notice at para. 10(a) to reflect that text notice can only be sent after UIA contacts the Article 28 claimant (or counsel if retained) to seek a direct or email address and is not provided with same,

(ii) extend the opt-out period to January 8, 2022 (at para. 13),

(iii) remove the requirement for notice to the Public Trustee and/or Children’s Lawyer for opt-outs of those who are mentally incapable or a minor (at para. 14),

(iv) remove the requirement for UIA to provide telephone numbers of passengers and family members, unless UIA has requested email or direct addresses from the claimant or counsel (if retained) (at para. 16),

(v) correct typographical errors referring to “paragraph 14” at paragraphs 17 and 18 of the Order (as the information appears to be provided under paragraph 16 of the Order and not paragraph 14), and

(vi) modify paragraph 22 to provide that a statement of defence be delivered on a date to be agreed upon by the parties or otherwise set by the court.

Order and Costs

[95] I grant certification of the action on the terms as set out above. Counsel may provide me with an approved order for my review, if they can reach agreement on the terms of the Order and certification documents as per these reasons. If they cannot reach agreement, I will review the proposed draft orders and certification documents at a case conference or hearing and settle the orders at that time.

[96] There was divided success on these motions. I did not accept all of the terms and made my own modifications. In such circumstances, I order that all parties and proposed intervenors bear their own costs of the motion.

GLUSTEIN J. Date: 20210222

COURT FILE NO.: CV-19-00632601-00CP DATE: 20211219 ONTARIO SUPERIOR COURT OF JUSTICE OMID ARSALANI Plaintiff AND: ISLAMIC REPUBLIC OF IRAN, ISLAMIC REVOLUTIONARY GUARD CORPS, UKRAINE INTERNATIONAL AIRLINES PJSC, and JOHN DOE MISSILE OPERATOR Defendants REASONS FOR DECISION Glustein J. Released: February 22, 2021

Explanatory Notes

[1] All references to claims of “passengers” are to claims to be brought on behalf of those passengers by an executor, administrator, or litigation administrator appointed for the purpose of the proceeding, as none of the passengers survived the downing of Flight PS752.

[2] Class counsel initially sought a stay of any action until leave of the court was obtained, but withdrew that request upon objection from the mass tort litigants.