Victor Thomasson v. Travel Industry Council of Canada, 2023 CanLII 81807

Licence Appeal Tribunal File Number: 14514/TIA

Appeal from a Decision of the Board of the Travel Industry Council to Disallow a Claim

Between:

Victor Thomasson Appellant

and

Travel Industry Council of Canada Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Victor Thomasson, Self-represented For the Respondent: Husein Panju, Counsel Karan Sharma, Counsel

Heard by Videoconference: July 24, 2023

REASONS FOR DECISION AND ORDER

background

1Victor Thomasson, the appellant, appeals the decision of the Board of Directors of the Travel Industry Council of Ontario (“TICO”) made December 21, 2022 denying a request for compensation.

2At that time, TICO determined that the appellant’s claim for compensation in the amount of $14,575 (US) is not eligible for reimbursement out of the Compensation Fund (the “Fund”) in light of two exclusions to eligibility set out in s. 57(3)3. and 5. of O. Reg. 26/05 (the “Regulation”) made under the Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D. (the “Act”).

3Section 71 of the Regulation provides for an appeal to the Tribunal if TICO determines that a claim or any part of a claim is not eligible for reimbursement.

4The appellant confirmed at the hearing that $400.00 of his original claim was a non-refundable administrative fee and that he now seeks $14,175(US) (the “appellant’s Claim”) from the Fund.

ISSUE

5The issue to be determined is whether the appellant is entitled to reimbursement in the amount of the appellant’s Claim pursuant to s. 57 of the Regulation.

result

6For the reasons set out below, I find that the appellant’s Claim for compensation out of the Fund is excluded and the appellant is not entitled to the compensation sought from TICO.

ANALYSIS

7TICO administers the Fund established under the Act and determines whether a claim meets the requirements of the Regulation. The Fund is financed in its entirely by registered travel agents and travel wholesalers in Ontario. Subject to the exclusions set out in the Regulation, the Fund provides reimbursement of monies paid to an Ontario registered travel agent for travel services that are not provided due to the bankruptcy or insolvency of a TICO registrant or an end supplier airline or cruise line where reimbursement has not otherwise been provided.

8Section 57(1) of the Regulation provides that a customer is entitled to be reimbursed for travel services paid for, but not provided, if the customer paid for the travel services through a registered travel agent and has complied with the other requirements of s. 57(1).

9Section 57(3) of the Regulation sets out the exclusions for when a customer is not entitled to be reimbursed out of the Fund.

10Specifically, section 57(3)3. of the Regulation provides that a customer is not entitled to be reimbursed for a payment for travel services that were available but were not received because of an act or failure to act on the part of the customer or another person for whom the travel services were purchased.

11Also, section 57(3)5. of the Regulation provides that a customer is not entitled to be reimbursed for travel services that were to be received as a goodwill gesture, including travel services that were to be received because of the redemption of a voucher, certificate, or similar document that was itself received as a goodwill gesture.

Is the Appellant Entitled to $14,175 (US) Compensation from the Fund?

Facts

12The facts are not in dispute. The timeline of events is confirmed in a written summary of dates filed by the appellant, documents filed by TICO, and the testimony of both the appellant and TICO’s witness Lori Furlan.

13In October 2018 the appellant booked a cruise for both he and his wife to travel in June 2020 through his travel agency Tully Luxury Travel. The cruise was fully paid for by December 2019. The appellant did not purchase travel insurance. Because of the COVID-19 pandemic and the fact that the Canadian border was closed to all non-essential travel on March 18, 2020, the appellant cancelled this cruise on March 26, 2020.

14Although the date to cancel and receive a refund of all the paid money for the cruise had already passed, the cruise line offered the appellant a future cruise payment (“FCP”) in the amount of $14,575 as a goodwill gesture. The appellant accepted the FCP offered by the cruise line.

15On March 26, 2020 the appellant used the FCP to book a cruise for travel in June 2021.

16On October 9, 2020, the appellant cancelled the June 2021 cruise due to COVID-19. The FCP of $14,575 (US) was used to book a cruise for travel in January to March, 2023.

17In February 2022 the cruise line declared bankruptcy.

18The appellant filed his Claim with TICO April 28, 2022.

19In cross-examination the appellant admitted that the cancellation policy of the cruise line provided that he would lose 100 percent of what he had paid if he cancelled the original cruise between March 21 and June 19, 2020 and that the booking for the original cruise was “in penalties” when he cancelled it according to correspondence he received from his travel agency on December 7, 2020. The appellant admitted that he was offered, and accepted, a partial refund and a FCP of $14,174 (US). The appellant used this FCP to book another cruise for June 2021.

20The appellant also conceded in cross-examination that although he intended to go on the next cruise he had booked for June 2021, this was cancelled by the appellant and the appellant booked another cruise for travel in 2023 using the FCP. Before the departure date of the 2023 cruise, the cruise line declared bankruptcy.

Appellant’s Position

21The appellant requests that his Claim be allowed. The appellant submitted that when COVID-19 came along he thought he was being responsible by changing cruises. The appellant thinks that the TICO regulations are being applied to his disadvantage.

TICO’s Position

22TICO’s position is that the appellant is not entitled to be reimbursed for a payment from the Fund because the appellant’s Claim is for travel services that were available but were not received because of an act or failure to act on the part of the customer. On March 26, 2020 the appellant cancelled the purchased cruise before it departed in June, 2020. The non-provision of the original travel services was not due to the failure of the cruise line but because the appellant cancelled the travel services. TICO relies on s. 57(3)3. of the Regulation.

23TICO’s position is also that the appellant is not entitled to be reimbursed for travel services because they were to be received as a result of a goodwill gesture. When the appellant cancelled the June 2020 cruise, the booking was subject to the terms and conditions of the booking and the applicable non-refundable cancellation penalties. The cruise line offered the appellant a FCP as a goodwill gesture and the appellant accepted the FCP. TICO relies on s. 57(3)5. of the Regulation.

24I find the appellant is not entitled to $14,175 (US) compensation from the Fund because the appellant has not established that he is eligible for compensation under the Act and s. 57 of the Regulation

25Section 57 of the Regulation is clear and there is no basis for the Tribunal to override the statutory entitlement provisions in the Regulation, including the reasons put forward by the appellant.

26Here the appellant’s Claim is subject to s. 57(3)3. of the Regulation which provides that a customer is not entitled to be reimbursed for a payment for travel services that were available but were not received because of an act or failure to act on the part of the customer. The appellant cancelled the original cruise, albeit for COVID-19, a reason he considered reasonable. As part of the cancellation, the appellant accepted the FCP which he then used to book another cruise. The appellant cancelled that cruise. The appellant used the FCP to book another cruise which he could not go on because the cruise line went bankrupt. These cancellations are acts on the part of the customer that resulted in the travel services not being available prior to the bankruptcy of the cruise line.

27The appellant’s Claim is also subject to s. 57(3)5. which provides that a customer is not entitled to be reimbursed for travel services that were to be received as a goodwill gesture, including travel services that were to be received because of the redemption of a voucher, certificate, or similar document that was itself received as a goodwill gesture.

28It is clear from the appellant’s testimony and documents filed that the cancellation policy of the cruise line provided that he would lose 100 percent of what he had paid if he cancelled the original cruise between March 21 and June 19, 2020, which he did because of COVID. The booking for the original cruise was “in penalties” when he cancelled it according to correspondence he received from his travel agency on December 7, 2020. The appellant admitted that he was offered, and accepted, a partial refund and a FCP of $14,174.00 which he used to book other cruises. Although the cruise line was not contractually obligated to give the appellant the FCP, the FCP was a goodwill gesture by the cruise line. The appellant used the FCP to book other cruises, including the 2023 cruise that the appellant and his wife could not go on because of the bankruptcy. Under s. 57(3)5., a customer is not entitled to be reimbursed for travel services that were to be received because of the redemption of the FCP, a goodwill gesture.

29As a result, I refuse to allow the appellant’s claim as he has not established that he is eligible for compensation under the Act and s. 57 of the Regulation.

Conclusion

30As a result, I find the appellant is not entitled to $14,175.00 compensation from the Fund because the appellant has not established that he is eligible for compensation under the Act and s. 57 of the Regulation.

ORDER

31Pursuant to s. 71(6) of the Regulation, I refuse to allow the appellant’s claim for compensation from the Fund.