WARNING

This appeal is subject to a publication ban issued March 30, 2023 which prohibits the publication or disclosure by anyone of information in, from or about the appeal that identifies or would tend to identify: (1) the passenger at issue (“YYY”), (2) the estate of the passenger at issue (“the Estate of YYY”), (3) the individual respondent (“XXX”), (4) all family members of YYY, and (5) any other claimants, other than the representative plaintiffs in the class action, that may be identified from the record in the appeal or the record on any motion brought in the appeal.

For complete information concerning the scope of the publication ban, readers are cautioned and directed to read the court’s formal order implementing the publication ban. A copy of the formal order may be obtained from the lawyers for any of the parties or from the court office.

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Court Details

COURT OF APPEAL FOR ONTARIO DATE: 20240228 DOCKET: COA-23-CV-0070

Before: Tulloch C.J.O., Hourigan and Zarnett JJ.A.

Parties and Counsel

BETWEEN

Omid Arsalani in the Capacity of Estate Trustee Without a Will of Hiva Molani, Fatholla (Vahid) Hezarkhani in the Capacity of Administrator of the Estate of Naser Pourshabosibi, Fatholla (Vahid) Hezarkhani in the Capacity of Administrator of the Estate of Firouzeh Madani and Habib Haghjoo Plaintiffs (Appellants)

and

Islamic Republic of Iran, Islamic Revolutionary Guard Corps, Ukraine International Airlines PJSC*, and John Doe Missile Operator Defendants (Respondent*)

Proceeding under the Class Proceedings Act, 1992

AND BETWEEN

The Estate of YYY and XXX Plaintiffs (Respondents)

and

Ukraine International Airlines Defendant (Respondent)

Counsel: Tom Arndt, for the appellants Pritpal Mann and Alessandra Ottaviano, for the respondents The Estate of YYY and XXX Victoria Pileggi, for the respondent Ukraine International Airlines PJSC/Ukraine International Airlines [1]

Heard and released orally: February 21, 2024

On appeal from the order of Justice Benjamin T. Glustein of the Superior Court of Justice, dated December 6, 2022.

Reasons for Decision

[1] The appellants abandoned the appeal on the eve of the hearing. The appellants argue that there should be no costs awarded due to an offer to settle that they made. The respondents Estate of YYY and XXX seek costs on a full or substantial indemnity basis, arguing that the appeal, and especially its continuation after an aspect of it was quashed as interlocutory and the Divisional Court denied leave, was an abuse of process.

[2] We do not accept the argument that any offer to settle made by the appellants makes a no-costs award appropriate here.

[3] We also reject the argument that the appeal was an abuse of process entitling the respondents to elevated costs. There is no suggestion that the appellants were seeking to advance any interest extraneous to the litigation. Although closely linked on the merits, the appeal from the opt-out was legally distinct from the aspect of the appeal that was quashed.

[4] The respondents Estate of YYY and XXX shall recover costs from the appellants in the sum of $30,000 all-inclusive, which includes costs of the motion to quash.

“M. Tulloch C.J.O.”

“C.W. Hourigan J.A.”

“B. Zarnett J.A.”

[1] Ms. Pileggi appeared but made no written or oral submissions.