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Damages in Fatal Claims

On the very last day of 2021, the Ontario Superior Court of Justice  issued a judgment regarding damages  against the Islamic Republic of Iran in the matter of the shooting down of Ukraine International Airline Flight PS 752 on January 8, 2020.[1] The court had earlier issued a judgment in respect of the liability in this matter, but the December 31 judgment of Belobaba J., addresses and important point regarding the damages claims that are available when death is the result of culpable actions by one or more persons.

As a case involving international terror and an intentional killing of civilians, there are elements that are distinguishable from most cases of injury resulting in death, but it nevertheless serves as an example of the claims that are available and should be considered in these tragic circumstances

Originally, in the common law, the claim for compensatory damages died with the injured person. The purpose of these damages was to make the person whole, and when this is no longer possible, there was no claim available. However, in legislation that was originally the Fatal Accidents Act, and has now been incorporated into the Family Law Act at section 61,  was introduced to allow for a claim to be made by a close family member for the losses that they suffered in respect of the death of their family member. These losses include both the special damages in regard of their expenses in caring for the person, and an amount for the “loss of care, guidance and companionship”:

Right of dependents to sue in tort

61 (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.  [2]

61 Damages in case of injury

(2) The damages recoverable in a claim under subsection (1) may include,…

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.  R.S.O. 1990, c. F.3, s. 61 (2).

In addition to the Family Law Act claims, the Trustee Act at section 38 allows for the estate of the deceased to make any claims that the decedent could have made himself. [3]

Actions by executors and administrators for torts

38 (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act.

This has opened the door for a claim to be made for the pain and suffering of the person who was injured, in the time between the moment of injury and their actual demise. In this particular case, the two missiles that hit the airplane struck 30 seconds apart, and the plane took another 4 minutes to fall from the sky. In recognition of the injuries and the unimaginable terror of the passengers on the plane, Justice Belobaba ordered damages of $1M for each of the plaintiffs.

It is to be noted that this is an exception to the usual cap on general damages for pain and suffering in negligence actions in Ontario, which was originally set at $100,000.00 in 1978 and is currently valued at approximately $400,000.00. Justice Belobaba indicated that the cap on damages does not apply to cases of intentional tort, and therefore he could award the higher amount. Similarly, he awarded $200,000 for each of the eligible FLA claims in this matter. He also awarded punitive damages in the amount of $100,000,000.00.

It is to be noted that this was effectively a default judgment as the Islamic Republic of Iran has chosen not to defend these claims. At this point, the enforcement of this judgment is unlikely since Iran does not keep assets in Canada. Nevertheless, the reasons and quantum in this case will set an important precedent in claims  for injuries resulting in death.

[1] Zarei v. Iran, 2021 ONSC 8569 (CanLII)

[2] Family Law Act, R.S.O. 1990, c. F.3, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).

[3] Trustee Act, R.S.O. 1990, c. T.23



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