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11/13/2013

Why an American family is trying to seize Iran's bank accounts and property in Canada

Screen shot 2013-11-13 at 9.01.01 AM
Marla Bennett, 24, a San Diego native and one of five Americans killed from a bomb explosion at Hebrew University in Jerusalem on Wednesday, July 31, 2002. (AP Photo/Bennett Family)

On July 31, 2002, Marla Bennett walked into the crowded cafeteria at Israel's Hebrew University.

Bennett, 24, was among seven casualties who were killed when a bomb exploded, detonated by a remote cell phone. Hamas later claimed responsibility for the attack during a rally in Gaza City.

Bennett's family wanted someone to pay for their loss and turned their attention to Iran, a longtime supporter of Hamas, which has denied Israel's right to exist as a country.

The family's battle brought th to Canada.

In 2007, after finding evidence that Iran and the Iranian ministry of information and security had provided support to Hamas, a U.S. court awarded $12,904,548 to Bennett's family.

The family asked the court to help seize assets in the U.S. that belonged to Iran. After all, the family argued, the U.S. and Iran had cut off relations in 1980, following the attack on the U.S. embassy in Tehran. But the American government cited the U.S. Foreign Missions Act, which gives the government the right to protect and preserve property of a foreign mission that has stopped conducting diplomatic activities.

The U.S. government won its argument in the court of appeal.

So the Bennett family launched a similar claim in Ontario Superior Court days after the Canadian government on Sept 7, 2012, suspended relations with Iran.

On February 13, 2013, lawyers for the Bennetts wrote to the Canadian Department of Justice, Canada, seeking assistance under in identifying the assets of Iran held in Canada.  On September 4, 2013, the Department of Foreign Affairs, Trade and Development Canada provided a list of Iranian non-diplomatic and diplomatic properties in Canada.

On Oct. 31, 2012, a Canadian judge granted the request of the Bennett family to allow it to lay claim to four properties, including the former main Iranian embassy at 245 Metcalfe St. in Ottawa. The judge noted that Canada's State Immunity Act protects a property of a foreign state "from attachment and execution." But the same law gives several exceptions, including when a foreign government is found to have supported terrorism.

Like the Americans, the Canadian government appealed the decision.

A Canadian judge agreed to overturn the earlier decision - this time at least partly because the Bennett's lawyer had not told the court about the earlier failure in the U.S. legal system.

"I have no doubt that had the unfavourable U.S. Court of Appeals decision been disclosed, the motions judges would have approached the plaintiffs’ request with a much higher degree of scrutiny and skepticism," Ontario Superior Court Justice D.M. Brown wrote in a Nov. 5 ruling.

The Bennett's lawyer may still appeal that decision, and is also battling to get control of the government of Iran's bank accounts at the Royal Bank of Canada, ScotiaBank, Canadian Imperial Bank of Commerce and Bank of Montreal.

Last year, an Israeli military court convicted a Hamas leader as the principal planner of suicide bomb attacks that killed Bennett and dozens of others during a Palestinian uprising in the past decade.

Rick Westhead is a foreign affairs writer at The Star. He was based in India as the Star’s South Asia bureau chief from 2008 until 2011 and reports on international aid and development. Follow him on Twitter @rwesthead

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