Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-06-05
FILE:
8639/TIA
CASE NAME:
8639 v. Travel Industry Council of Ontario
An Appeal from a Decision of the Board of the Travel Industry Council of Ontario made under the Travel Industry Act, 2002, S.O. 2002, c. 30, Sch. D to partially deny a claim for reimbursement
Appellant
Appellant
-and-
Travel Industry Council of Ontario
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Laurie Sanford, Vice-Chair
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Soussanna Karas, Counsel
Heard in Toronto:
May 29, 2014
REASONS FOR DECISION AND ORDER
This hearing arises from an appeal by the Appellant to the Licence Appeal Tribunal (the “Tribunal”) from a Decision of the Board of the Travel Industry Council of Ontario (“TICO”) made under the Travel Industry Act, (the “Act”) to partially deny a claim for reimbursement. The Appellant’s name will not be used to preserve his privacy.
At the conclusion of the hearing, the Tribunal directed TICO to pay the Appellant the reimbursement he sought, that is $1,790. The Tribunal advised the parties that written reasons for the Order would follow; these are the reasons for that decision.
FACTS
The Appellant wished to travel to his country of origin and to take his wife and three children with him. He researched the cost of the trip online and found a price of $8,828.40 in American dollars for the trip. He approached an Ontario travel retailer, Joy Travel & Tours (“Joy Travel”), which offered him the trip for $8,500 Canadian dollars. He had done business in the past with Joy Travel and had been satisfied so he decided to purchase the tickets through that company. Sometime in July he was advised by Joy Travel that they no longer accepted credit card payments. He paid a deposit of $1,000 in cash for which he did not receive a receipt. On the day he believed he would be travelling, July 31, 2013, he and his family packed and went together to Joy Travel to pay the balance of the cost of the flight and to pick up the tickets. He brought with him cash in the amount of $5,900 and he planned to write a cheque for the balance. The travel agent with whom he had been dealing advised him that the price of the tickets had increased from $8,500 to $8,690 and, moreover, that she no longer accepted cheques. The travel agent gave him a receipt for $6,900, being the $1,000 deposit and the $5,900 cash which the Appellant had brought with him. He then scrambled to find the remaining $1,790 required. His evidence is that he borrowed $1,000 from a friend, withdrew $320 from his bank and that his wife gave him the balance of $470 from money she had set aside for the trip.
When the Appellant returned to Joy Travel, the office was closed but his agent was in her car. He met with her there and she accepted his money and handed him two envelopes with travel itineraries in them. She did not provide him with a receipt for the final payment of $1,790. At some point, either then or shortly after, she advised him that he and his family would not be able to travel that day because there had not been time to obtain the tickets. She told him he could travel on August 1, 2013. On August 1st, she advised him that his trip must again be deferred but that she had been able to obtain tickets for an August 3rd flight. This was very inconvenient for the Appellant because travel authorisations for his family were due to expire, necessitating a trip to Ottawa to obtain new ones.
On August 3, 2013, the Appellant and his family went to the airport and attempted to check in. The airline advised him that Joy Travel had cancelled their tickets and they were unable to travel. The Appellant called Joy Travel and his agent said there had been a mistake and that he and his family should wait at the airport while she sorted matters out. The Appellant never heard from her again.
After an attempt to report the incident to the police, the Appellant approached TICO. TICO contacted the travel agent and she said there had been a misunderstanding and she was prepared to refund “the full amount” if the Appellant came to her office. When he arrived, the office was closed and locked. Neither TICO nor the Appellant was able to contact Joy Travel or the travel agent again. TICO has revoked the registration of Joy Travel under the Act. The Appellant filed a claim for reimbursement of the cost of the tickets from the compensation fund administered by TICO. He supplied the invoice, an affidavit attesting to the amount paid for the tickets and various other supporting documents and statements to TICO. On February 4, 2014, TICO advised him that its Board had decided to reimburse the Appellant for $6,900 but not for the remaining $1,790 on the grounds that insufficient documentation had been given to support the claim. During the hearing, Ms. Karas, Counsel for TICO submitted that the $6,900 had been reimbursed because it had been supported by a receipt. In the absence of a receipt for the balance of $1,790, TICO decided to deny that portion of the claim.
The Appellant was a credible witness. There were inconsistencies in his account of events but the Tribunal accepts his account of the facts as set out above. There were a number of the factors which made the Appellant’s evidence convincing to the Tribunal despite the internal inconsistencies in his account. First, the Appellant was able to produce evidence, which was unchallenged, of the cost of the trip which was in the range of what he testified that he paid and was in fact higher than the amount he is claiming. Second, the receipt from Joy Travel is a generic receipt form. If the Appellant had decided to make a false claim it would have been comparatively easy to attempt to forge a receipt. The fact that the Appellant did not do this is silent affirmation of the credibility of his account. Finally, there was extensive collateral testimony given by the Appellant, including his attempt to involve the police and his travelling to Ottawa to obtain new travel documents, that add credence to his evidence.
DECISION
Ontario Regulation 26/05 to the Act (the “Regulation”) deals with claims against the compensation fund, which is established and governed under Part III of the Regulation. Subsection 57(1) provides that a customer is entitled to be reimbursed from the compensation fund for travel services paid for and not provided if the customer meets certain requirements. Section 61 of the Regulation provides that a claimant against the compensation fund shall provide the documents and other information that the Board of TICO requires to prove the claim.
TICO agrees that the Appellant is a customer and would be entitled to reimbursement if he could prove his claim to the $1,790 he testified that he had paid. The only ground on which TICO refused this portion of his claim was the lack of documentation, specifically the lack of an invoice.
In this appeal, the Tribunal stands in the place of the Board of TICO and the documentation and other information required under Section 61 of the Regulation is that which the Tribunal requires to prove the claim. The Board of TICO does not hear evidence in claim matters; they conduct a review of documents only. The Tribunal had the advantage of hearing the Appellant’s evidence. As noted above, the Tribunal accepts the Appellant’s testimony as summarised above and finds that this testimony and the supporting documents are sufficient to prove his claim to $1,790.
It is important to note that the Appellant and his family suffered non-pecuniary losses as a result of Joy Travel’s actions. There was acute embarrassment and distress to the family at the airport and the significant inconvenience to the Appellant as a result of the initial delay. More importantly, one of the reasons the Appellant wanted to take his family to his homeland was to visit his mother and have his children meet their grandmother. Before he could arrange another trip, his mother died. The Appellant was unable to say good-by and his mother died without meeting her grandchildren. These are not losses that can be compensated under the Act but they deserve to be acknowledged.
ORDER
By authority of subsection 71(6) of the Regulation, Tribunal directs TICO to pay the Appellant the amount of $1,790 as reimbursement for travel services paid for but not provided.
LICENCE APPEAL TRIBUNAL
Laurie Sanford, Vice-Chair
Released: June 5, 2014