Court File and Parties

COURT FILE NOS. CV-20-00635078-0000 and CV-22-0674774-0000 DATE: 20230110 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Court File No. CV-20-00635078-0000 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, ALKI KHAMENEL, also known as SUPREME LEADER OF IRAN, MOHAMMAD BAGHERI, also known as MOHAMMAD-HOSSEIN AFSHORDI, HOSSEIN SALAMI, SEYYED ABODLRAHIM MOUSAVI and AMIR ALI HAJIZADEH Defendants

AND BETWEEN: Court File No. CV-22-00674774-0000 JOHN SMITH, BILL SMITH, SAM SMITH, JANE SMITH, MARY SMITH, SALLY SMITH, personally and on behalf of the Estates of their deceased family members or as Personal Representative of their deceased family members 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 KHAMENEL 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

Mark H. Arnold and Jonah Arnold, lawyers for the Plaintiffs Jacqueline M. Dais-Visca, lawyers for the Interested Non-Party, the Attorney General of Canada

HEARD: IN WRITING

REASONS FOR DECISION

G. DOW, J.

[1] By Case Conference Endorsement dated October 5, 2022, Justice S. Vella directed this matter be heard in writing during the week of October 31, 2022.

[2] The plaintiffs are the estates and family members of victims of the downing of Ukraine Airlines flight PS752 on January 8, 2020 by the defendants, Islamic Republic of Iran, Islamic Revolutionary Guard Corps and other Iranian individuals. This action by the victims for compensation from the defendants was not defended. The claim proceeded to default judgment which was granted by this court on May 20, 2021 (2021 ONSC 3377) and quantified in the amount of $107,000,000.00 plus interest of $285,238.36 and costs fixed at $252,516.00 on December 31, 2021.

[3] This motion deals with whether the plaintiffs can enforce their judgment by permitting them to seize and sell land and bank accounts of the Islamic Republic of Iran in Canada. As part of proceeding, the plaintiffs were required to serve Canada’s Minister of Foreign Affairs, Trade and Development and the Department of Justice under Rule 37.07 as persons “affected by the order sought”.

[4] At the case conference held on October 5, 2022, the court permitted the Attorney General of Canada to file material. This was consistent with an April 4, 2022 endorsement (at paragraph 16) of this court that “enforcement and determination of enforcement-related issues cannot take place until after the transmission of the certified copy of the Default Judgment to Iran in accordance with Section 10(2) ” of the State Immunity Act, R.S.C., 1985 c. S-18 and the expiry of the 60 day period during which of the Islamic Republic of Iran has the right to seek to set aside the default judgment or have it revoked pursuant to Section 10(4) of the State Immunity Act, supra.

[5] The assets in question are three properties in Ottawa and bank accounts at Scotiabank and the Royal Bank of Canada.

[6] Of note, Canada severed diplomatic relations with Iran on September 7, 2012 as a result of its involvement in acts of terrorism. More importantly, the Parliament of Canada enacted the Justice for Victims of Terrorism Act, S.C. c.1 which granted victims of terrorism some ability to commence legal action against terrorists and foreign states.

[7] As part of this proceeding, on March 9, 2022, the Department of Foreign Affairs, Trade and Development issued a Certificate under Subsection 11 of the Foreign Missions and International Organizations Act, S.C. 1991, C.41 certifying the above described assets to be diplomatic property of the Islamic Republic of Iran and “continue to enjoy privileges and immunities under the Foreign Missions and International Organizations Act ”.

[8] The Attorney General of Canada opposes the relief sought on the basis of the March 9, 2022 Certificate. The Attorney General of Canada relies on decision of our Court of Appeal in Tracy v. Iran (Information and Security), 2017 ONCA 549 (at paragraphs 117 – 119). That is, execution of a judgment recognized in Canadian court proceedings cannot occur where the Minister of Foreign Affairs, Trade and Development has acknowledged the diplomatic status of the property in question.

[9] The plaintiffs submits that the defendants’ rights to diplomatic immunity has ended. The plaintiffs submit that various international agreements to which Canada is a party and that have been given effect in Canadian legislation such as the Foreign Missions and International Organizations Act, S.C. 1991, c. 41 to place the assets within seizure as part of enforcement of this Ontario judgment. Further, this court has the authority and jurisdiction to review the Certificate issued by the Department of Foreign Affairs, Trade & Development.

[10] I disagree. I rely on the statement of our Court of Appeal in Tracy v. Iran (Information and Security), supra (at paragraphs 104 to 106). That is, the executive branch of our government is the best place to make foreign policy decisions as provided for under Foreign Missions and International Organizations Act, supra. Further, the executive branch is permitted to determine and exercise its diplomatic status with regard to specified Islamic Republic of Iran’s assets in this jurisdiction.

[11] Finally, as has occurred here, the Minister of Foreign Affairs, Trade and Development has the power, under Section 11 of the Foreign Missions and International Organizations Act, supra to deliver this Certificate which prevents granting of the order sought by the plaintiffs.

[12] While this decision may be inconsistent with the purpose of the Justice for Victims of Terrorism Act, supra, or public statements of the executive branch as referred to in the materials, it would appear to lie with the executive branch to explain and/or remedy such inconsistencies.

[13] The plaintiffs’ motion is dismissed. No costs were sought by the Attorney General of Canada and none are ordered.

Mr. Justice G. Dow

Released: January 10, 2023