T.K. v. Travel Industry Council of Ontario, 2017 CanLII 144636

Date: 2017-12-15

An Appeal of a Decision of the Travel Industry Council of Ontario to Disallow a Claim

Between:

T.K.

Appellant

-and-

Travel Industry Council of Ontario

Respondent

DECISION AND ORDER

Adjudicator: Patricia McQuaid, Vice-Chair

Appearances:

For the Appellant: Rajan Mahavalirajan Paralegal

For the Respondent: Timothy Snell, Counsel Jennifer Shin, Counsel

Heard in Toronto: November 20, 2017

DECISION AND ORDER

OVERVIEW

1The appellant has appealed a decision dated June 8, 2017 of the Board of Directors of the Travel Industry Council of Ontario (“TICO”) under the Travel Industry Act, 2002 to refuse the appellant’s claim for compensation from the Travel Industry Compensation Fund pursuant to section 57 of O. Reg. 26/05 (the “Regulation”). The appellant’s claim is in the amount of $8,331.

2By way of background, TICO’s principal mandate is consumer protection. Administering the Fund is part of that mandate. The Board of TICO reviews claims made to the Fund by “customers” and determines entitlement. That review is based on documents submitted to it. There is no oral hearing. A claimant does, however, complete an affidavit with TICO, as well as supporting documentation.

3The Board denied the claim because, based on the documentation provided by the appellant and information received by TICO staff, the Board was unable to determine “what, if any, travel services were purchased and whether the services were utilized prior to the failure of Skyride Travel & Tours Ltd”, the travel agent.

4The entitlement to claims on the compensation fund and exclusions are set out in section 57 of the Regulation. The Board has to balance its consumer protection mandate with the requirement that it preserve the Fund, which is essentially monies held in trust, for the benefit of all eligible claimants. The relevant sections of the regulation are set below, in order to give context to the evidence that follows.

Reimbursement of customer

57. (1) A customer is entitled to be reimbursed for travel services paid for but not provided 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 other 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 for 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,

(ii) any other person who has received the customer’s money, or

(iii) any other person who may be legally obliged to reimburse or compensate the customer, including a person obliged under a contract for insurance. O. Reg. 26/05, s. 57 (1); O. Reg. 161/10, s. 10.

5Section 61 of the Regulation sets out the requirement to submit documentation to the Board to prove the claim. A claimant bears the onus to show that he paid for travel services and that the claim falls within the wording of the Regulation.

ISSUE

6Is the appellant entitled to reimbursement from the Fund, based on the documents provided and the evidence given at this hearing?

7After considering the evidence before me, and for the reasons that follow, I conclude that the appellant has not provided sufficient and reliable evidence to prove his claim for reimbursement for travel services and therefore refuse his claim against the Fund.

EVIDENCE and ANALYSIS

8TICO does not dispute that the appellant made two payments to Skyride; the first was a Visa payment on September 22, 2015 in the amount of $3,498 and the second was a bank draft on October 27, 2015 in the amount of $8,331. As became clear through the evidence, TICO did dispute what if any travel service the appellant paid for; it questioned the credibility of the claim.

9TICO sent claim forms to the appellant on February 8, 2016. When the appellant filed his claim on May 31, 2016, which was the filing deadline, he claimed $11,829, the total of those two amounts. He later reduced his claim to $8,331 when he received a refund in the amount of $3,498 from Visa in August 2016.

10The Tribunal heard testimony from the appellant and Lori Furlan, the Claims Coordinator at TICO. Ms. Furlan processes the claims submitted by consumers and prepares the documents for the Board’s review. Ms. Furlan testified that TICO received notice from Jim, the principal of Skyride, on November 29, 2015 that he intended to voluntarily terminate his registration as a travel agent effective November 30, 2015. Ms. Furlan and a colleague attended at the Skyride premises on November 30, 2015 to review its records and to deal with any upcoming travel of customers that might be affected by the termination.

11At that time, a Skyride employee told her that the appellant had paid the two amounts referred to above on behalf of other passengers who were travelling to India on December 20, 2015. The employee went on to say that these passengers had also paid for their tickets resulting in an overpayment to Skyride by the appellant. Ms. Furlan explained to the employee that under the Regulation, overpayments are not eligible for reimbursement from the Fund. Ms. Furlan testified that the customers travelling to India made their own claims and were ultimately reimbursed by the travel wholesaler when the trip was cancelled.

12Ms. Furlan was not provided with any receipts or invoices for the appellant’s payments on November 30, 2015, but on December 2, 2015, Jim emailed TICO attaching an invoice with the explanation that it was an invoice for clients (in fact, the appellant) that they had collected money from but had not arranged the travel plans. The attachment included an invoice in the amount of $8,331, dated November 30th for a group booking for the appellant for a trip to Cuba on July 30, 2016. This invoice was stamped “Paid”. Ms. Furlan questioned why this invoice was dated November 30th (the date of termination) when the payment was made on October 27, 2015.

13On December 2, 2015, Jim also emailed to her the itinerary for Air Transat flights, Toronto to Cancun, Mexico, departing on July 10, 2016 and returning on July 17th. The itinerary also references a July 30, 2016 return flight, though the reason for that was not made clear.

14At the bottom of this itinerary, typewritten, is a note: “Cuba group depisit (sic) CCM plus truct (sic) deposit”. Ms. Furlan noted the misspellings on what purported to be a computer generated itinerary and stated that it was unusual to see a notation such as this on a printed itinerary.

15Ms. Furlan contacted Air Transat on December 2, 2015. Air Transat confirmed that no actual booking had been made; however, a representative confirmed that Air Transat provided a quote to Skyride for a trip to Punta Cana (not Cancun or Cuba) in early November 2015, with an expiry deadline of December 4th.

16On his claim documents, the appellant explained that the Visa payment and bank draft were given as a deposit for future booking for a trip to Cuba on July 30th, for eight people. In his testimony, he stated that he paid the money to Skyride for Jim to get him a “last minute deal” – whenever Jim could get a better package deal to Cuba, he was to book it.

17The appellant included in his claim documents, a Skyride ‘settlement report’ in the amount of $3,498 with his handwritten notes on it and a Skyride computer generated ‘refund invoice’ dated November 9, 2015 also for $3,498. Ms. Furlan was also puzzled as to how these came to be in the appellant’s possession since they are documents for a travel agent’s internal accounting records and in the normal course are not given to a consumer.

18Both in the documents given to TICO on May 31, 2016 to support the appellant’s claim and in his testimony, there were discrepancies on the facts. These include, for example, the names of persons who would have been travelling on the group booking, dates of travel (he was clear that he was planning to travel on July 30th) and when he received some of the documents from Skyride. On the latter point, the appellant stated he may have been confused on the dates. There was no explanation given as to how the appellant came to receive some internal accounting records from Skyride. These issues raised a ‘red flag’ for TICO, but they are less concerning than the discrepancies regarding what the appellant paid for.

19As noted above, TICO does not dispute that the appellant made two payments to Skyride. Counsel for TICO submits that cumulatively there are significant credibility concerns about this claim; it cannot be substantiated and is not eligible for payment from the Fund. The appellant’s claim was the only claim denied by TICO as it related to the failure of Skyride.

20The appellant’s representative acknowledges that there are some problems with the documents, but states that the appellant has been victimized by the travel agent – he had put trust in Jim and relied on him to secure travel at a cheap rate at some future date.

21There is no question that the loss of $8,331 is significant, and the Tribunal in cases such as this, gives consideration to TICO’s consumer protection mandate, but a claim must also fit within the requirements of the Regulation to be eligible for reimbursement.

22Here, there is a payment to a travel agent, but what, if any, travel service the appellant paid for is in question. Ms. Furlan was initially told, on November 30, 2015, that the payments were for a trip to India, but that this was in fact an overpayment (and therefore not eligible for reimbursement). Two days later, that payment represented a deposit for a last minute deal, for travel to Cuba seven months later. On its face, it may seem incongruous to pay someone over $11,000 for a last minute deal for travel seven months later. However, the only document supporting that travel plan was an itinerary for a trip to Cancun, with a notation at the bottom which appeared to be added, with spelling errors, that it was in fact for a trip to Cuba. The evidence is that this was not a booking for a travel service. Air Transat had only provided a quote, which was for travel to Punta Cana.

23Based on the foregoing, I conclude that there is no credible, reliable and convincing evidence of payment for a travel service purchased. A claimant against the Fund must meet the essential requirements of the Regulation and this includes reasonable proof of payment for travel services. The appellant may have a claim against Skyride for return of $8,331, but it is not one that can successfully be made against the Fund.

ORDER

24By the authority of subsection 71(6) of the Regulation, Tribunal refuses to allow the appellant’s’ claim for compensation from the Travel Industry Compensation Fund.