DIVISIONAL COURT FILE NO.: 470/09
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND SACHS JJ.
BETWEEN:
OVIDIU CAPMARE
Applicant
(Respondent in Appeal)
– and –
TRAVEL INDUSTRY COUNCIL OF ONTARIO
Respondent
(Applicant in Appeal)
No One Appearing
Soussanna S. Karas, for the Appellant
HEARD at Toronto: May 10, 2010
JENNINGS J. (orally)
1This is an appeal by the Travel Industry Council of Ontario (“TICO”) from the August 31, 2009 decision of the Licence Appeal Tribunal (the “Tribunal”) ordering TICO to reimburse Mr. Capmare in the gross amount of $1206.50.
2There is no dispute that Mr. Capmare paid $2,058.00 for a one week all-inclusive package of airfare to and accommodation in Cuba. Although he received accommodation, he did not receive air transportation. Mr. Capmare applied for reimbursement for his payment for airfare.
3The issue before TICO and the Tribunal was the amount of the $2,058.00 paid by Mr. Capmare that should have been attributed to airfare.
4No records were available as to the actual cost of the airfare, the tickets having been cancelled by the carrier by reason of non-payment.
5TICO obtained a copy of an accommodation invoice sent by Varaplaya to the agent from which it concluded that the airfare portion of the package purchase was $144.12 per person and awarded $288.75 compensation for two fares.
6On appeal to it, the Tribunal rejected the Varaplaya invoice as credible evidence of the cost of accommodation in this case because it was not representative of the bundled package purchased.
7The Tribunal accepted from Mr. Capmare evidence of comparable airfare prices within a package to the same destination and for the same seasonal period. Although there may have been some difficulties with that evidence it was the only and best evidence available and the Tribunal was entitled to accept it.
8The Tribunal was engaged in making a finding of mixed fact and law. The standard of review is reasonableness.
9Given its finding that the documentary evidence in this case was not reliable, the Tribunal was entitled to go beyond it and it was reasonable for it to accept the evidence establishing the cost of the tickets to be $603.25 per ticket.
10It is to be noted that the Travel Industry Act is consumer protection legislation and should be given a broad liberal interpretation.
11Accordingly, the appeal must be dismissed. Mr. Capmare filed no material and did not appear. As a result of that there will be no order as to costs.
JENNINGS J.
LEDERMAN J.
SACHS J.
Date of Reasons for Judgment: May 10, 2010
Date of Release: May 13, 2010
CITATION: Capmare v. Travel Ind. Council of Ontario, 2010 ONSC 2740
DIVISIONAL COURT FILE NO.: 470/09
DATE: 20100510
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, LEDERMAN AND SACHS JJ.
BETWEEN:
OVIDIU CAPMARE
Applicant
(Respondent in Appeal)
– and –
TRAVEL INDUSTRY COUNCIL OF ONTARIO
Respondent
(Applicant in Appeal)
ORAL REASONS FOR JUDGMENT
JENNINGS J.
Date of Reasons for Judgment: May 10, 2010
Date of Release: May 13, 2010