Fond-du-Lac plane crash victims launch class-action lawsuit

An image taken at the scene of a deadly plane crash in December 2017 near Fond-du-Lac. Photo courtesy Transportation Safety Board of Canada.

Survivors of December’s Fond-du-Lac plane crash have launched a lawsuit against West Wind Aviation and Athabasca Basin Development, the company that holds a 65 per cent share of the airline.

The statement of claim filed Wednesday detailed allegations of safety protocols that weren’t followed and traumatized passengers who were allegedly left to fend for themselves. It was filed by Merchant Law Group, known for several prominent Canadian class action suits in the past.

None of the claims detailed in the lawsuit have been tested in court.

The class claimed general, special exemplary and punitive damages, as well as costs and “other relief the court may allow.”

The class action focuses on a handful of victims representative of the larger class.

Three of those victims are Arson Fern Sr., Arson Fern Jr. and Janey Fern.

Arson Fern Sr. and Janey Fern are the parents of Arson Fern Jr. who died as a result of injuries sustained in the crash.

According to the class action, on the cold evening, passengers waited to board the plane outdoors on a cold runway. No appropriate steps to de-ice the runway or plane were taken, the statement of claim said.

Shortly after take-off, the airplane malfunctioned and crashed. The passengers did not receive any direction or instructions from pilots or flight staff during the crash, the claim alleged.

The claim also said that there was no indication from the pilot or flight staff that there were problems during the crash, and passengers were left to fend for themselves in the chaos.

Injuries to passengers included broken vertebrae, pelvis, arms, ribs, ankles, noses, other broken and fractured bones, punctured lungs and internal bleeding, facial injuries and lacerations, death, PTSD and severe emotional stress.

Arson Fern Jr. lived with his parents at the time of the crash and had cerebral palsy. After the plane went down, he was pinned while his father tried to comfort him and keep Fern Jr. safe.

Fern Jr. suffered a shattered pelvis, two broken ankles, other broken and fractured bones, a punctured lung and internal bleeding. He was rushed to Royal University Hospital in Saskatoon where he was placed in critical condition. He died on Dec. 27.

In terms of physical injuries, Arson Fern Sr. suffered cracked ribs. His wife, Janey, had bruising and abrasions.

Both Arson Sr. and Janey, though, suffered emotionally.

“Following the loss of their young son, Arson Sr. and his wife, Janey, have suffered profound grief and mental anguish,” the suit alleged.

Other claimants also suffered mental shock and distress. Carey Clayton Mercredi is one. He also suffered a compression fracture to the back and severe whiplash.

Dakota McDonald and her husband in Fond-du-Lac also suffered “crushing mental anguish and distress,” the suit said.

“This has made it difficult for them to care for their young child and carry on with their lives as they had done before the incident.”

The suit also described how the crash affected Tiffany Hanson. The 26-year-old is the mother of two children and was employed prior to the crash.

According to the suit, she noticed visible cracks on the aircraft when she boarded. She also noticed that the plane was very full of passengers and overheard a member of the flight staff comment that the plane was too heavy.

The statement of claim said that after the plane crashed, Hanson could see foam spilling into the aircraft and onto her legs. People were trying to kick out the door of the plane. It took 40 minutes for help to arrive.

Both of Hanson’s legs were crushed. She continues to be in care at Saskatoon City Hospital and her left leg may require amputation.

Hanson will likely “minimally be confined to a wheelchair for the rest of her life,” the statement of claim said.

Hanson has endured six surgeries, skin grafts, getting pins in her legs, rehabilitation and other treatment. She will continue to require medical attention for the rest of her life, may require further surgeries and may have severe arthritis. The injuries have already allegedly been detrimental to her mental and physical health.

“Ms. Hanson can no longer care for her young children,” the statement of claim said.

“She cannot run and play with them, take them for walks, or do many other activities of a young mother.”

According to the claim, about a week after the crash, representatives from West Wind approached each survivor and gave then $5,000 and a note.

According to the suit, the note read:

“West Wind airlines continues to have its thoughts and prayers with the victims of the Dec. 13 fatal crash. In an effort to provide some help over the Christmas break during this difficult time, please accept this $5,000. In no way does this money constitute a waiver for any future legal claims you may wish to make.”

The claim said no documents were signed in relation to the money.

The claim outlined what the plaintiffs say is the duty of care owed to them by the airline.

According to the suit, West Wind and Athabasca Basin were required to meet the standard of care of a competent professional airline, with “upmost attention to safety standards and details, with a duty to correct mistakes as quickly as possible, or even to cancel or delay flights if necessary, without regard to self interest and feat that admitting wrongdoing might result in liability attaching or loss of profit.”

The suit alleged that West Wind failed the duty of care in several ways, and should be punished to prevent such failures from taking place in the future.

The court should order punitive damages and exemplary damages “to make the point to West Wind and Athabasca, and any other agencies engaged in aviation or the operation of an airline that they must be vigilant, careful, and when mistakes are discovered, put the safety of patients ahead of their economic interests,” the statement read.

West Wind provided a brief statement to the media once the suit had been filed.

“We are hearing that legal proceedings may be initiated. If this does come to pass, we certainly will respect the legal process and its due diligence processes,” vice president of business development and corporate services Dennis Baranieski told CBC.

Transportation Safety Board continuing investigation

The Transportation Safety Board’s investigation into the crash is still ongoing. In the initial stages investigators visited the site while obtaining photos of the wreckage, UAV/drone imagery and airport drawings.

They also surveyed the cockpit and obtained technical, operational and maintenance documents, as electronic instruments and devices, including the flight data recorder, cockpit voice recorder and emergency locator transmitter.

They examined both engines of the aircraft and partially examined the cabin and seating arrangements. They interviewed first responders, airport employees, crewmembers, passengers and other witnesses.

They concluded that engines were operating up until the time the plane crashed, the aircraft descended into trees and terrain, leaving a wreckage path at least 800 feet long. The fuselage ruptured at about row three.

According to the investigator, the aircraft was in an upright position, but tilted steeply to the right, and the left side of the aircraft appeared to be the most damaged.

West Wind flights were halted while the investigation continues. Investigations can take several years to complete.

The accusations

The suit included the following accusations. They are ways West Wind and Athabasca allegedly breached their standard of care. The claims have not been tested in court:

  • Landing aircraft and by necessity needing to take off on a runway which was too short for the size and weight of the aircraft
  • Landing the aircraft on a runway not properly equipped to manage the weather elements, including, but not limited to, a runway which was not properly de-iced, not properly lit, not properly kept up and without airplane de-icing equipment
  • Allowing an aircraft to operate which was an inappropriate size and type for the weather condition and the runway and de-icing situation
  • Overloading the aircraft with passengers and freight to the point that it was inappropriate for the size of the aircraft, especially in the given weather conditions
  • Failure to properly load and distribute the weight of passengers and freight with appropriate care
  • Equipping the aircraft with seats that were not suitable for their intended purpose and likely to cause injury, failure to maintain and inspect seats for safety
  • Allowing a pilot to operate the aircraft in a state below the standard of care required
  • Employing a pilot prone to error
  • Allowing an aircraft to operate while overweight due to excessive freight on board
  • Allowing an aircraft which was not properly maintained and repaired to operate
  • Failing to inspect aircraft or facilities with appropriate care and frequency
  • Failure to alert air control, the police, paramedics, or other relevant authorities in a timely manner after the crash, or at all
  • Failure to adequately train flight crew, including proper procedure in emergency situations and proper warning procedures
  • Failure to deliver adequate emergency instruction to passengers so they were properly prepared and positioned to avoid injury and death.