COURT FILE NO.: 33/08
DATE: 20090121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
IRENE MISKEWYCZ and THOMAS MISKEWYCZ
Plaintiffs
(Respondents)
- and -
BEATA H. GAAL and Y2K BUDAPEST TRAVEL
Defendants
(Appellants)
Anna Husa, for the Plaintiffs (Respondents)
No One Appearing, for the Defendants (Appellants)
HEARD at Toronto: January 21, 2009
JANET WILSON J.: (Orally)
[1] This appeal involves a matter of some importance to the travel industry about the statutory obligations of travel agents to inform clients about the required travel documents.
[2] Beata Gaal and Y2K Budapest Travel appeal from the decision of Deputy Judge O’Dea Mungovan, dated December 18, 2007. The judge concluded that the appellants, as travel agents were in breach of their statutory duty to inform the respondent clients with respect to passport restrictions for travel to Panama City. The appellants were ordered to reimburse the respondents for the cost of the aborted trip in the amount of $2,476.10, plus prejudgment interest and costs.
[3] The appellants did not appear on today’s date. The matter was adjourned to todays date by me, to allow counsel to contact the appellants, and the counsel who had prepared the factum on behalf of the appellants. All reasonable efforts have been made to contact the appellants and to inform the appellants of this hearing (see correspondence exhibits 1 and 2).
[4] The appellants dispute the findings of facts and findings of credibility, claiming that the findings are unreasonable and not supported by the evidence. Further, the appellants submit that the learned trial judge failed to consider the independent evidence of another travel agent in his reasons.
[5] The appellants attack credibility findings and findings of fact made by the trial judge.
[6] The standard of review on questions of fact is palpable overriding error. (See Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. 33).
background
[7] In mid-December 2005, the respondents booked a package vacation with the appellants. The respondents relied upon their friend to do the booking for the January 2006 trip because of some language difficulties. Entry to Panama City requires a valid Canadian passport not to expire within six months of the dates of travel (the six month rule). The respondents’ passports were valid but expired three months from the date of travel. They went to the airport at 4:00 a.m. but were denied carriage by the airline in question and could not travel. They lost the sum of $2,476.10, which they paid for the trip.
[8] The issue was whether the appellant, Ms. Gaal complied with the statutory obligations to inform clients about passport restrictions pursuant to the Travel Industry Act, Ontario Regulation 26/05.
[9] The statutory duty to inform clients involves obligations both before and after entry into a contract.
[10] Section 36 of the Travel Industry Act confirms the obligation of the travel agent to advise the customer about passport requirements prior to entering into a contract:
- Before entering into an agreement with a customer for travel services, and before taking payment or credit card information from the customer, a travel agent shall,
(e) in the case of proposed travel outside Canada, advise the customer,
(i) about typical information and travel documents, such as passports, visas and affidavits, that will be needed for each person for whom travel services are being purchased.
[11] There is also an obligation imposed on travel agents to inform clients about passport or other required travel documents in writing in the invoice or receipt after purchase. Section 38 of the Travel Industry Act provides:
38.(1) After selling travel services to a customer, a travel agent shall promptly provide the customer with a statement, invoice or receipt that sets out,
(k) the information given to the customer under clause 36(e).
Section 36(e) refers to the requirement about passport information.
The evidence and conclusions
[12] It is not disputed that the requirements of s.38 of the Travel Industry Act were not complied with. After selling the Panama package to the respondents, no statement, invoice or receipt was provided to the respondents in writing advising them about the six month rule for Panama.
[13] The respondents went to the airport and were denied access to the flight as they were not in compliance with the rule. The respondents were understandably upset and promptly went to the appellant’s office to complain.
[14] There was competing evidence given at the trial about whether prior to entering the contract, information was given to the respondents’ agent about the six month rule. The learned trial judge preferred the evidence of the clients and concluded that the appellants’ evidence made no sense. Had the respondents been informed about the six-month rule and knowing the date of expiry of their passport, why would they go to the airport at 4:00 a.m. when they knew they would not be eligible to fly?
[15] The learned trial judge did not consider the evidence of another agent who works with Ms. Gaal. She testified that she overheard a conversation with respect to providing this information. The failure to refer to this evidence is not fatal. The learned trial judge did not accept the appellant’s evidence as it did not make sense. The trial evidence supports the findings made by the learned trial judge and should not be disturbed. There is no palpable overriding error. To the contrary, the reasons of the learned trial judge are cogent and make sense.
[16] The appeal is therefore dismissed.
costs
[17] Costs must be within the reasonable expectation of the losing party. This is a Small Claims Court action. Although I do not question that counsel for the appellant spent considerable time on this matter, the costs award must bear some relation to the amounts in dispute. In the circumstances, I fix the costs in the amount of $750.00 inclusive of GST, payable forthwith.
JANET WILSON J.
Date of Reasons for Judgment: January 21, 2009
Date of Release: January 22, 2009
COURT FILE NO.: 33/08
DATE: 20090121
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
IRENE MISKEWYCZ and THOMAS MISKEWYCZ
Plaintiffs
(Respondents)
- and -
BEATA H. GAAL and Y2K BUDAPEST TRAVEL
Defendants
(Appellants)
ORAL REASONS FOR JUDGMENT
JANET WILSON J.
Date of Reasons for Judgment: January 21, 2009
Date of Release: January 22, 2009