Compensation for delayed flights Discussion Area

Sidders21

Hello, I am hoping for some advice.

My wife and I were flying to Vancouver in Canada for our honeymoon with Air Canada. Our flight was expected to depart at 13:00 on 26th February 2025 from Heathrow. We travelled down from where we live in Chester on the evening of the 25th February and stayed in a hotel airport overnight. At 2:19am, we received an email from the airline informing us that our flight was cancelled because “the scheduled aircraft needs unexpected maintenance. Aircraft maintenance could be required when we notice something that needs fixing for safety reasons and will take longer than a reasonable flight delay to complete.” 10 minutes later, we were booked on to another plane, flying from Heathrow to Toronto, departing at 14:30, arriving in to Toronto at 17:45, and then a connecting flight departing Toronto at 20:30, arriving in to Vancouver at 22:15 – 7.5 hours later than our scheduled arrival.

Fortunately, as we travelled down the night before and woke up early enough to see the cancellation email, we decided to go to the airport first thing and attempt to board an earlier flight. We were able to catch the 11:10 from Heathrow to Toronto, arriving at 14:25, and then the 18:40 from Toronto to Vancouver, arriving at 20:44 – just 6 hours later than our original booking.

Following Vauban’s Guide, I submitted claims against two tickets, and as anticipated, we received a rejection stating that “the compensation you are requesting does not apply because the delay was caused by an event outside of our control. Specifically, damage to the aircraft caused by a lightning strike”. I replied asking for proof that the flight was cancelled due to extraordinary circumstances. My original email was ignored however after a follow up email, I received a reply stating that they cannot provide any documentation because it is confidential and cannot be distributed publicly, and that “our written confirmation is proof of the reason for the flight disruption.” She closed her email with “I thank you for your understanding and appreciate this final opportunity to reply to your flight disruption claim. I will be closing this case recognizing that we were not able to reach a mutually agreeable conclusion to your concerns, and that you may pursue resolution in another venue.”

Reading through Vauban’s Guide, it seems I need to give up there with customer services and issue an LBA to the Air Canada UK Headquarters, but before I do, I wanted to lean on the experience within this forum. ‘Extraordinary Circumstance’ is such a broad term. Even if it’s true that the plane was damaged from lightening, the fact that planes are purposely built to withstand lightening surely proves this as ordinary. Is anybody aware of the details of similar cases that I can use in support of my claim?

eskbanker

I looked into this myself after having a flight cancelled due to a lightning strike, and located Monarch Airlines v Evans and Lee 2016 where the judgment was that “damage caused to an aircraft by a lightning strike is inherent in the normal exercise of the activity of the carrier, and so not exceptional circumstances”, but the airline (correctly, unfortunately) highlighted that it was only a junior country court that doesn't set legal precedent as "it is a local judgment and non-binding".

The airline's counter-argument was based on a much more senior binding EU court judgment about bird strikes not being 'inherent' and applying the same principle to lightning strikes:

In respect of extraordinary circumstances, the Airline relies on the judgment of the Court of Justice of the European Union (the “CJEU”) in Pešková and Peška v Travel Service A.S (Case C-315/15) in which it was held that:

In the present case, a collision between an aircraft and a bird, as well as any damage caused by that collision, since they are not intrinsically linked to the operating system of the aircraft, are not by their nature or origin inherent in the normal exercise of the activity of the air carrier concerned and are outside its actual control. Accordingly, that collision must be classified as ‘extraordinary circumstances’ within the meaning of Article 5(3) of Regulation No 261/2004.

The Airline avers that a lightning strike is an analogous event to a bird strike and therefore submits that the disruption to the Flight was caused by extraordinary circumstances. 

If you feel that there's merit in pursuing this, then in terms of next steps, I don't know when the Vauban guide was last updated (haven't seen it referred to for ages and it seems difficult to find!) but prior to going legal, there's the ADR route that would generally be worth considering:

https://www.aviationadr.org.uk/how-to-complain-about-air-canada-flight/

Alan_Bowen

I am sorry to say that Air Canada has a reputation for doing everything possible to avoid paying compensation, whether here or at home in Canada. Indeed, having been ordered to pay compensation in Canada, they are currently suing the passenger to recover it. 

Sidders21

Thank you. I may be overly sceptical, but the flight was only half full when we checked in at 10pm the night before, and it was cancelled 4 hours later. My gut feeling tells me that they cancelled the flight because they didn't want to fly a half-empty plane to Vancouver, rather than damage caused by lightening. After reading Alan's comments above, this doesn't now seem so far-fetched.

I will go down the ADR route, as that seems to be the most effective way of getting to the truth. Going further than that and arguing whether or not damage caused by lightening should be considered an extraordinary circumstance seems like a bit of a coin toss. My understanding is that the airline is obligated to provide the proof I requested to the ADR once a complaint has been lodged.

eskbanker

Sidders21 said:

I will go down the ADR route, as that seems to be the most effective way of getting to the truth. Going further than that and arguing whether or not damage caused by lightening should be considered an extraordinary circumstance seems like a bit of a coin toss. My understanding is that the airline is obligated to provide the proof I requested to the ADR once a complaint has been lodged.

A coin toss would be 50/50 but I don't think your chances would be that good!  As you say, airlines are likely to supply significantly more detail to AviationADR (it was at that stage when I was presented with the above counter-argument), although ultimately it's still their data so whether it truly constitutes proof is debatable - it should be more credible than gut feel about loading though....