DATE: 20061013

DOCKET: C44767

COURT OF APPEAL FOR ONTARIO

RE: Welford Graham and Elma Delos Santos (Plaintiffs/Respondents) – and – Sky Route Travel Services Inc. (Defendant/Appellant)

BEFORE: LASKIN, MACPHERSON AND LAFORME JJ.A.

COUNSEL: Alnaz I. Jiwa for the appellant Harvey Wengle for the respondents

HEARD & RELEASED ORALLY: October 5, 2006

On appeal from the order of Justice Katherine E. Swinton of the Superior Court of Justice, Divisional Court, dated October 7, 2005.

E N D O R S E M E N T

[1] The appellant’s travel agency challenges both the trial judge’s finding of credibility and his finding of negligence. He also contends that the damages award was excessive.

[2] The trial judge preferred the evidence of the respondent, Graham, to that of the appellant’s representative. On appeal, Swinton J. found no basis to interfere with the trial judge’s credibility assessment. We agree.

[3] There was evidence the trial judge was entitled to accept that supported his credibility finding. Swinton J. also found that on the trial judge’s findings of fact, he did not err in his conclusion that the appellant had a duty of care and that he breached this duty. Again, we agree.

[4] For the purpose of deciding this appeal, we need not determine the broad question whether travel agents owe a duty to their clients to advise of visa or passport requirements to foreign countries. Instead, to decide this appeal, it is sufficient to say that the appellant undertook at a minimum to warn its clients to be responsible for their own visa requirements. The appellant put this warning on its invoice and relied on it in its Statement of Defence. On the trial judge’s finding of fact, the appellant failed to communicate this warning to the respondent, Graham, because it sent the invoice to the wrong address. On this narrow basis, we uphold the trial judge’s liability finding.

[5] We also see no ground to interfere with the trial judge’s damages assessment. Although seemingly on the high side, it is supported by the evidence of what happened to Mr. Graham when he did not produce a visa. Finally, we agree with Mr. Wengle that the trial judge’s decision complies with s. 25 of the Courts of Justice Act. It is a decision that is “just and agreeable to good conscience”.

[6] Accordingly, the appeal is dismissed with costs fixed at $1,000.00, inclusive of disbursements and G.S.T.

“J.I. Laskin J.A.”

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”