Court File and Parties
SUPERIOR COURT OF JUSTICE - ONTARIO
(DIVISIONAL COURT)
RE: nugget travel and tours inc. (Applicant/appellant) v. travel industry council of ontario (Respondent/respondent in appeal)
BEFORE: Regional Senior Justice Then
COUNSEL: Akbar Ali, for the Applicant
Soussanna S. Karas, for the Respondent
HEARD AT TORONTO: October 30, 2008
E N D O R S E M E N T
1The applicant seeks an order staying the execution of an order of the Licence Appeal Tribunal revoking the registration of the applicant under the Travel Industry Act effective October 31, 2008.
2The test for the granting or refusal of a stay in civil proceedings approved by the Supreme Court of Canada is outlined in R.J.R. MacDonald v. Canada (Attorney General), [1994] 1 S.C.R. 311 and requires the court to essentially consider three matters:
Has the applicant demonstrated a serious matter to be determined?
Has the applicant demonstrated irreparable harm will result if the stay is not granted?
Has the applicant demonstrated that the balance of inconvenience favours his/her position?
3Ms. Karas on behalf of the respondent is prepared for the purposes of this proceeding to concede that the first and second requirements of the test have been met given the low threshold of the first requirement and given that the revocation of the registration as a travel agent will have an “enormous” financial effect on the applicant as the reasons of the appeal tribunal readily concede.
4The pivotal issue in this case is the balance of convenience.
5On that issue, Mr. Ali for the applicant submits that revocation will have a devastating financial effect on the applicant and his family. He submits that the basis of the applicant’s financial difficulty is a solitary unsound business decision which resulted in approximately $24,000 owing to customers of which $5,000 has been repaid. Counsel submits that there is no suggestion of any dishonest conduct from which the public requires protection and that once alerted to the accounting problems and non-compliance with regulations, the applicant has taken at least some corrective action.
6In all of the circumstances the applicant urges this court to stay the proposed revocation and to impose the conditions that the applicant be required to fully pay back the $19,000 still owing to customers and that he be strictly monitored to assure compliance with the regulations governing his financial affairs.
7On behalf of the respondent, Ms. Karas submits that the risk to consumers by not terminating the registration outweighs the potential harm to future consumers from the precarious financial situation of the applicant in circumstances where there has already been substantial harm done to consumers which the applicant has not fully satisfied for over a year notwithstanding his promises to do so and notwithstanding the assertion in his financial statement that his working capital is in excess of $25,000. It is submitted that in addition to the applicant’s precarious financial position the customers are potentially at risk because the applicant has little insight into the need to comply with the financial regulations pertaining to the conduct of his business.
8In my view, given his failure to repay notwithstanding his assertion in the financial statements that working capital is in excess of $25,000, given the precarious financial situation of the applicant, given the harm already caused to consumers, which has not been fully redressed notwithstanding continued promises to do so and given the past breaches of regulations, designed to protect the consumer, the applicant has not demonstrated that the risk of potential harm to consumers is less than the harm which may befall the applicant if his registration is revoked. Accordingly, having assessed the entire record, the application for a stay until the Divisional Court disposes of the appeal must be dismissed.
9If the parties cannot agree on the issue of costs, then brief written submissions may be made within 15 days.
Then R.S.J.
DATE: October 31, 2008