What Ramifications Does A Canadian Court Decision Have For Airlines?

On Jan. 8, 2020, Ukraine International Airlines (UIA) Flight 752 was shot down by Iran’s Revolutionary Guard shortly after taking off from Tehran’s Imam Khomeini Airport, leaving all 176 passengers, among them 85 Canadian citizens, dead.

The legal fallout from this disaster was distilled in a June 2024 verdict by Canada’s Ontario Superior Court, which found UIA at fault in allowing the Boeing 737-800 to depart at all.

Justice Jasmine Akbarali found that UIA personnel had been negligent in conducting risk assessments of the situation in Iran, whose armed forces were on high alert after firing ballistic missiles at US military positions in neighboring Iraq, and had failed to contact the aircraft’s commander prior to the flight to alert him to the situation. Aircraft commanders have discretion over whether or not to operate a flight.

The court’s decision meant that UIA could not rely on financial limits set by the Montreal Convention for loss of life—currently $170,000 per person, a figure that will rise to $200,000 in December 2025—and laid the airline open to much higher damages.

The verdict introduced a difficult question that now bears on all carriers and may have even greater importance given the Dec. 25, 2024, fatal crash of an Azerbaijan Airlines Embraer E190 that was in Russian airspace and which the Azerbaijan government said was shot down by Russian military. Will airlines have to amend their risk assessment procedures, or simply ensure that they follow existing procedures diligently?

“I think the latter,” Simon Phippard, aviation law specialist and counsel at London-based firm Bird & Bird told ATW. “What that judgment was doing was to say that the standard an airline should have achieved was defined to a reasonable level of detail by documents such as ICAO doc. 10084. The court took the view that the Ukrainian airline had not come up to that bar.

“I used the word ‘standard’ but there are some nuances about that. There was a proper course [of action] that the airline should have taken on that day and which it did not. There’s potentially a factor of 10 between the financial compensation limits set by the Montreal Convention and the possible financial penalties that can be imposed if an airline is found guilty of negligence. If you can limit your liability to $200,000 per passenger, rather than perhaps $2 million, obviously there’s a lot of money riding on it.”

Both Phippard and Ashleigh Ovland of international law firm HFW agree it was unusual for an airline accused of negligence to test the issue at trial. “What this case could do in future is influence certain discussions behind closed doors,” Ovland said.

In general, an airline’s legal counsel will tend to advise the carrier or its insurers to settle out of court, rather than fight the case and have a lot of detail come out in open court. “It’s very unusual, certainly in a major accident, for an airline to test these issues at trial,” Phippard noted.

Ovland contrasted the UIA case with that of Malaysia Airlines (MA) Flight 17, a Boeing 777 that was shot down by Russian forces over eastern Ukraine on July 17, 2014, killing all 298 people onboard. Other airliners had been flying the same route over east Ukraine that day, and it was found that the airline had made reasonable measures to avoid risk—a point taken up by aviation risk intelligence specialist Osprey Flight Solutions’ CEO Andrew Nicholson: “Malaysian [was] not the only airline flying that route. What the [Canadian] judgement does, I believe, is [set] a precedent for airlines that they can be held liable in a court … [when] a reasonably appropriate process wasn’t followed to understand, quantify and mitigate the risk faced by the airline operating in that area.”

Airlines frequently approach companies like Osprey for risk assessments, rather than relying on what governments perceive to be a state of risk. Nicholson sees the limitation of government as a key reason why the question of “reasonableness” is an innate aspect of legality—and why governmental standards of reasonableness in such circumstances do not offer clear or robust enough guidance.

“I think there will always be an acceptance of reasonableness in a court, and what was reasonably foreseeable in terms of the risk you faced,” he said. “And if you conduct operations having done a proper risk assessment [and] have been through a robust process to understand what those risks are, and keep them updated, it’s going to go a long way to demonstrate the care and judgement you’re taking as an operator. Governments are severely limited in what they can do in such circumstances.

“Even the FAA, by its own admission, says [such] scenarios move so quickly and dynamically that [it] can’t keep up with them. That’s understandable—that’s not what [the FAA] was set up for. They’re not set up as a dynamic intelligence organization. Governments are not the solution to this problem. They can’t act quickly enough and give an objective, consistent picture,” Nicholson said.