Flair Airlines was ordered to compensate two passengers after a B.C. tribunal found there was no evidence a bird strike actually caused a flight cancellation.
In August of last year, Olivia Donner and James Broadhurst were told by the airline that their flight from Calgary to Vancouver was cancelled, according to a decision from the Civil Resolution Tribunal posted online Wednesday.
Under Canada’s Air Passenger Protection Regulations, travellers can be compensated for delayed and cancelled flights, provided the disruption is a result of something over which the airline has control. In this case, the regulations entitled each applicant to claim $500.
But the airline argued that it should not have to pay.
“Flair says it cancelled the flight because the airplane for the flight experienced bird strikes while landing in Vancouver,” tribunal member Jeffrey Drozdiak’s decision said.
“Flair claims its flight crew took the required steps to notify the tower that a strike may have occurred. Flair says an aircraft maintenance expert identified that multiple bird strikes caused damage and documented it through an internal SMS system. So, Flair argues the cancellation was outside its control.”
But Donner and Broadhurst did their own research, consulting the Civil Aviation Daily Occurrence Reporting System – a federal database that tracks incidents including medical emergencies, navigation errors and flight diversions.
It also tracks bird strikes.
The applicants provided the tribunal with the results of a search done for strikes in Vancouver on the three days leading up to their flight’s departure.
“The results show that Flair did not experience any reported bird strikes during that time. In its dispute response, Flair says the tower sends any occurrences to Transport Canada for input into CADORS,” Drozdiak wrote.
“Flair argues it does not know why the bird strike was not reported.”
The airline did not submit its own internal records or any documentation to support its claim that a bird strike occurred.
“There is no evidence before me, other than Flair’s bare assertion, showing that a bird strike cancelled the flight,” the decision said.
This failure to provide evidence, according to the tribunal, allowed it to make an “adverse inference” against the airline.
“An adverse inference is when the CRT assumes the party did not provide the relevant evidence because it would have damaged their case,” the decision explained.
Given that inference as well as the evidence that was submitted, the tribunal decided the cancellation was within the airline’s control and ordered it to pay each passenger.
