Tammie O’Connor v. Travel Industry Council of Ontario, 2022 CanLII 4629

Licence Appeal Tribunal

Date: 2022-01-19

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

Between:

Tammie O’Connor Appellant

-and-

Travel Industry Council of Ontario Respondent

DECISION and ORDER

ADJUDICATOR: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: No-one appearing

For the Respondent: John Park, Counsel

Date of Decision: January 11, 2022

Introduction

1On May 17, 2021, Ms. Tammie O’Connor (“the appellant”) made a claim under the Travel Industry Act, 2002 (“Act”) for compensation from the Travel Industry Compensation Fund for travel services she states she paid for but did not receive.

2The Travel Industry Council of Ontario (“TICO”) denied the appellant’s claim. According to TICO, the Regulation which establishes the Fund provides that compensation from the Fund is only available in respect of money paid to a travel agent registered under the Act. In this case, according to TICO, the appellant paid funds to an unregistered company and compensation from the fund is therefore not available.

3The appellant appealed that decision to this Tribunal.

4A case conference took place on November 3, 2021 to discuss resolution and scheduling of the appeal hearing. There was no resolution and the parties agreed to a videoconference hearing to commence on January 11, 2022 at 12:30 pm.

Appellant Did Not Attend Hearing

5The hearing commenced as scheduled but the appellant was not present. The Tribunal received no communication from the appellant about whether or not she intended to participate in the hearing.

6TICO’s counsel, Mr. John Park, was present and was ready to proceed. However, Mr. Park informed the Tribunal of the following:

• Early in the morning of January 11, 2022, the appellant sent an email to Mr. Park stating “I have been up all night with my son and don’t foresee me being able to attend the hearing today. Unfortunately, I understand this means my appeal is being withdrawn.”

• Mr. Park promptly replied and stated, “We understand that sometimes circumstances beyond our control occurs. Under the Rules, you can request an adjournment if you aren’t available to attend the hearing for a valid reason. Please advise …if you would like to request an adjournment of today’s hearing. I will then seek to receive instructions from …[TICO], prior to the hearing to see if TICO would support your request...”

• The appellant did not respond.

7Based on the above, I note that the appellant indicated to Mr. Park that she would not attend and understood that would result in her appeal being “withdrawn”. Mr. Park helpfully suggested that she could request an adjournment if she was unable to attend. The appellant apparently chose not to do so.

8As a result, the appellant did not attend the hearing or request that it be adjourned, and the hearing proceeded in the appellant’s absence.

9The onus is on the appellant to prove the facts that establish eligibility for reimbursement out of the Fund. Since the appellant chose not to attend the hearing and presented no evidence, there is no factual basis upon which I could conclude that the claim should be allowed.

10I therefore conclude that the appellant’ claim must be refused.

ORDER

11Pursuant to s. 71(6) of Ontario Regulation 26/05, made under the Travel Industry Act, 2002, the appellant’s claim dated May 17, 2021 for $4,131.27 from the Travel Industry Compensation Fund is refused.