Flair Airlines ordered to compensate B.C. men for multi-hour delays on both legs of round-trip

A Flair Airlines aircraft is shown in this handout photo. (Supplied)

B.C.'s small claims tribunal has ordered Flair Airlines to pay more than $500 to two men whose flights to and from Kitchener-Waterloo were delayed by more than three hours each.

When they are within an airline's control and not safety related, delays of this length must be resolved with compensation from the airline, according to Canada's Air Passenger Protection Regulations.

Airlines of Flair's size are required to provide passengers with alternate travel arrangements or ticket-price refunds, plus $125 in compensation, when delays meet this criteria.

That's not what Flair did in the case of Matthew Welsh and Andrew Nickel, according to a Civil Resolution Tribunal decision issued Monday. 

THE FLIGHTS

In the decision, tribunal member Chad McCarthy writes that both men booked round-trip flights from Vancouver to Kitchener-Waterloo departing on March 18, 2022, and returning on March 21, 2022.

"The parties agree that the outbound and return flights were each delayed by between three and six hours," McCarthy's decision reads.

The delay was long enough that Welsh would arrive in Ontario in the middle of the night and be unable to access his pre-arranged accommodations, according to the decision, which indicates that he contacted the airline to say the flight no longer met his needs.

Nickel still flew, but Welsh remained in B.C.

The tribunal heard that Nickel's return flight was also delayed by between three and six hours, and that Flair initially denied liability for that delay as well, but later agreed that Nickel was entitled to $125 in compensation.

THE ARGUMENTS

The airline argued that the delay for the outbound flight was not within its control.

"Multiple Flair emails shortly before departure said the delay was due to flight crew rest requirements, which were within Flair’s control," the decision reads.

"However, while not directly denying that flight crew rest requirements were a factor, Flair now says the 'most significant' reason for the delay was 'up-line weather' that was outside its control. Specifically, Flair says an earlier flight was diverted and delayed due to weather, which caused the applicants’ outbound flight to be delayed because it used the same airplane."

As evidence for this assertion, the airline submitted the plane's itinerary for the day in question, as well as "excerpts of what it says was aircraft weather and flight information," according to the decision.

"I find the submitted evidence consists almost entirely of unexplained numbers, acronyms, and codes, whose meaning is far from obvious, and which I do not understand," McCarthy writes. "Flair is a sophisticated litigant and has been a respondent in other CRT disputes. So, I find Flair likely knew, or should have appreciated, that this evidence was subject matter outside ordinary knowledge and experience."

The tribunal member concluded that Flair should've submitted expert evidence explaining its submissions. Because it hadn't, McCarthy found that the evidence presented did not show that the earlier flight had been delayed due to weather severe enough that safe operation of the aircraft would've been impossible.

Further, McCarthy noted that the plane in question made two other flights before the delayed one on which Welsh and Nickel were booked.

"Even if the earlier flight was delayed for situations beyond Flair’s control, for the applicants’ later outbound flight delay to also be considered beyond Flair’s control, APPR section 10(2) says Flair must have taken all reasonable measures to mitigate the impact of the earlier delay," the decision reads.

"I find the submitted evidence does not show Flair took any steps to mitigate the earlier flight delay, and does not show that no mitigation measures were reasonably available."

THE AWARDS

Having reached this conclusion, McCarthy sided with Welsh and Nickel, awarding them the $440.77 they sought in the case.

That total includes $125 for each man's delayed outbound flight, $125 for Nickel's delayed return flight and $65.77 to refund the cost of the tickets Welsh didn't use.

McCarthy also awarded the men $6.11 in pre-judgment interest, $13.73 for the cost of serving Flair with a physical copy of their dispute notice, and $125 to reimburse the men for their CRT fees.

In all, Flair must pay the men $585.61 as a result of the decision.