Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 7354/TIA
CASE NAME: 7354 v. Travel Industry Council of Ontario, Travel Industry Act, 2002
Appeal of a decision by the Board of the Travel Industry Council of Ontario under Ontario Regulation 26/05 made under the Travel Industry Act, 2002, S.O. 2002, c. 30, Sch. D,
Applicant
Applicant
-and-
Registrar, Travel Industry Act 2002
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Andrew M. Diamond
APPEARANCES:
For the Applicants: Self-represented
For the Respondent: Soussanna Karas, Counsel
Heard in Toronto: July 23, 2012
REASONS FOR DECISION AND ORDER
Introduction
The Applicant has appealed the decision of The Travel Industry Council of Ontario (“TICO”) denying his claim for reimbursement for airline tickets that he purchased from a member of TICO that went out of business and failed to provide the Applicant with the travel services for which he paid..
TICO is the industry regulatory body that regulates member travel agents in Ontario. As part of its statutory mandate it administers a compensation fund, which is designed to provide a level of insurance to the travelling public for losses incurred due to the failure of its member travel agents, wholesalers or travel providers. The circumstances under which TICO may provide compensation are set out in the regulations to the Travel Industry Act; in this case section 60 (1) and (2) of the Ontario Regulation 26/05 (the “Regulations”).
Background
The facts and timing are not in dispute. The Applicant purchased four return airline tickets from a member of TICO (“the travel agent”) for himand his family to travel to Pakistan. Because of the time limits set out in the Regulations for making claims for compensation, a chronology of events is helpful to understand the parties’ positions.
April 3, 2011, the Applicant and his family depart for an extended trip to Pakistan, using airline tickets purchased from the travel agent;
May 25, 2011, the travel agent ceases operation;
September 16, 2011, the Applicant attempts to return to Canada only to be told by the airline that he had no reservation nor valid ticket. It is agreed that while the travel agent took the Applicant’s funds and advised him that he had a confirmed return ticket, the travel agent in fact only purchased one way tickets for the Applicant and his family to travel to Pakistan but no return ticket to Canada.
September 24, 2011, the Applicant purchased replacement one way air travel to return to Canada at a cost of $6,098.09 and returned to Canada on September 25, 2011;
November 21, 2011, the Applicant contacted TICO to enquire about making a claim;
December 6, 2011, the Applicant delivered a completed claim to TICO;
March 27, 2012, the TICO Board reviewed and rejected the Applicant’s claim; and
April 4, 2012, TICO’s decision to refuse the Applicant’s claim is communicated to him.
TICO admits that, but for the fact that the claim was made too late, the Applicant would otherwise have been entitled to compensation from the fund. The Applicant in his appeal argues that the time limit should be extended as he did not know of the travel agency’s failure until September, 2011.
Law and Analysis
In July, 2010, the Travel Industry Act regulations were amended to provide compensation for “travel completion”. Section 57.1 of Ontario Regulation 26/05 states:
57.1 (1) If a customer has begun a trip that cannot be completed because a travel service has not been provided as a result of the failure of a registrant [in this case the travel agent], the customer is entitled to be reimbursed under subsection (2) if,
(a) the customer paid for the travel services and the payment or any part of it was made to or through a registered travel agent;
(b) The customer has made a demand for payment from.
i. The registered travel agent and the appropriate registered wholesaler,
ii. Any person who has received the customer’s money, and
iii. Any other person who may be legally obliged to reimburse or compensate the customer, including a person obliged under a contract of insurance; and
(c) the customer has not been reimbursed by,
i. Those of the registered travel agent and the appropriate registered wholesaler, who under section 25 of the Act are liable to make the reimbursement because they ,
(A) are unable to pay by reason of bankruptcy or insolvency,
(B) have ceased carrying on business and are unwilling to pay, or
(C) have ceased carrying on business and cannot be located…
It is admitted that under the terms of section 57 of the Regulation the Applicant would be entitled to compensation but for the time limits for making a claim for compensation set out in sections 60 (1) and (2) of the Regulations.
TICO submits that only Ontario, British Columbia and Quebec have legislative protection for the travelling public, and that the regime in Ontario sets out a strict time limit for making claims against the fund. Specifically, section 60 (1) (b) and 60 (2) of Ontario Regulation 26/05 make it clear that:
- (1) A customer or a registrant may make a claim to be reimbursed in writing to the board of directors within,
(b) three months after the relevant registrant becomes bankrupt or insolvent or ceases to carry on business, if the claim is made under section 57.1 or 58.1.
(2) A claim to be reimbursed that is made after the end of the time period specified in subsection 1 is not valid. (emphasis added).
As set out above, it is not disputed that the travel agent ceased operating on May 25, 2011, making August 25, 2011 the three-month deadline for filing claims under section 57.1.
The Applicant argues that on August 25, 2011 he was still on his trip in Pakistan and had no way of discovering the failure of the travel agent until he attempted to return to Canada on September 16, 2011. It is therefore simply unfair that he be denied the coverage to which he would otherwise be entitled.
Decision
The system as currently established by statute and regulation makes it difficult for people to make a claim if they are travelling for periods of greater than three months. However, the Regulation is clear, and while it may result in some unfairness for travelers such as the Applicant, this is a legislated compensation regime with strict timelines, which run from certain events. In this case the deadline for making a claim was August 25, 2011. Neither the Board of TICO nor this Tribunal has the discretionary power to vary those timelines.. Though the Tribunal sympathizes with the Applicant and the situation in which he has been placed, regrettably, the appeal must be denied.
LICENCE APPEAL TRIBUNAL
Andrew M. Diamond, Vice-Chair
Released: September 17, 2012