Licence Appeal Tribunal File Number: 15731/TIA
In the matter of an appeal from a decision of the Travel Industry Council of Ontario denying reimbursement of a claim.
Between:
Djabar Boutarfa
Appellant
-and-
Travel Industry Council of Ontario
Respondent
DECISION AND ORDER
ADJUDICATOR:
Geneviève Painchaud, Vice Chair
APPEARANCES:
For the Appellant
For the Respondent
Observer:
French-English Interpreter:
Heard by videoconference:
Djabar Boutarfa, Self-represented
Lori Furlan, Claims Coordinator, TICO
Karan Sharma, Counsel
Husain Panju, Counsel (respondent)
Michael Lashley
August 16, 2024
OVERVIEW
1Djabar Boutarfa (the “appellant”) appeals a decision dated March 1, 2024 of the Board of Directors of the Travel Council of Ontario (“TICO”) under the Travel Industry Act, 2002 (the “Act”). Specifically, the appellant appeals a decision to deny his claim for compensation from the Travel Compensation Fund (the “Fund”) pursuant to section 57 of Ontario Regulation 26/05 (the “Regulation”).
2The appellant applied for compensation in the amount of $23,000.00 from the Fund for a trip to Saudi Arabia for a religious pilgrimage to Mecca for him and his wife.
3At the case conference held on May 1, 2024, the appellant learned that the limit the Fund could cover was $5,000.00 per person and therefore he is seeking this revised amount for himself and his wife.
4The appellant made this claim for a trip he submits never happened because the travel agent never actually booked the trip. The appellant claims that his brother-in-law paid the travel agent in cash on his behalf.
5The respondent asserts that in his claim, the appellant had not proven that he made a payment for travel services to a registered travel agent.
6The hearing was held in a French-English bilingual format with the appellant speaking French and the respondent English, and we were assisted by an interpreter.
ISSUE
7Is the appellant and/or his wife entitled to reimbursement of $5,000.00 for travel services not provided?
RESULT
8For the reasons that follow, I refuse to allow the appellant’s claim for compensation and dismiss the appeal.
EVIDENCE
9Most of the facts regarding this appeal are in dispute.
Appellant’s Submissions
10The appellant submits that on February 15, 2023, he purchased the trip from Hachemi Bensaci of Holy Destinations Travel Inc. as his brother-in-law, Hacene Oukacine had previously used his services to purchase a similar trip. This trip was planned for June 21 to July 7, 2023. Since the appellant lived in Montreal, he called his other brother-in-law who lived in the Ottawa area, Fateh Amarouche, and asked him to go with Mr. Oukanice and pay Mr. Bensaci in cash on his behalf.
11The appellant submits that he sent a cheque to Mr. Amarouche dated February 15, 2023 in the amount of $23,000 which Mr. Amarouche cashed on February 17, 2023. A copy of the cheque and a deposit of such an amount in Mr. Amarouche’s bank account is in evidence.
12Mr. Amarouche testified at the hearing that he used cash that was available at his home to go pay Mr. Bensaci, but that he did not get a receipt.
13In his application to the Fund, the appellant also mentions that an additional $2,500 was to be paid at a later time. No other evidence was provided about this amount.
14The appellant claims that following the cash payment, he never received any information with confirmation of bookings and that Mr. Bensaci stopped corresponding with him around June 8, but that in July he communicated with him and was told he would return the money. No documentary evidence was produced to support these claims.
15The appellant explained that he then joined a WhatsApp group called “Victims of Hajj Fraud” in July-August 2023, where he communicated with someone called Yazan who claimed to also be a victim and claimed he was the contact person for Mr. Bensaci. The appellant claims he had private messages on WhatsApp with Yazan explaining that he was a victim of the fraud and asked him for a receipt for the trip, which he provided through WhatsApp in January 2024. Yazan then told him to submit a claim to TICO. When his claim was denied, the appellant asked him for another receipt but with a signature and indicating the amount paid, (the “second receipt”), which he received in April 2024 and produced it in July 2024. The appellant did not know Yazan’s last name. No screenshots of those private conversations were produced.
16The appellant claims that about 30 people have had a similar issue and that he filed a police report with the Ottawa Police.
Respondent’s Position
17The respondent denied the claim explaining that it was because the receipt provided was inconsistent with receipts issued from the same travel agency (Holy Destinations Travel Inc.) in other claims. Also, the receipt indicated a balance owing of $23,000 and not paid.
18Since there was not enough evidence to substantiate the $23,000 cash payment, TICO was unable to determine what, if any, payments were made. Also, the appellant’s cheque to his brother-in-law in the amount of $23,000 indicated “debt repayment” in the subject line which could mean anything.
19Lori Furlan, claims coordinator for TICO explained how there were many discrepancies in the receipt, from the format of it to the lack of description of the package purchased. Other invoices that TICO received regarding claims for compensation regarding Holy Destinations Travel were much more detailed in terms of what was included such as accommodations and meals and they included a signature and a zero balance. Over 30 such claims were approved for compensation.
20Four other claims with receipts similar to the appellant’s were received in one day. The four claims, including a claim from Yazan Nasreddin, were denied. TICO uncovered through conversations with Mr. Nasreddin that he had a personal and somewhat business relationship with Mr. Boutarfa, including a loan of $15,000.
21In describing other reasons why the appellant’s claim was denied, Ms. Furlan described the lack of evidence to substantiate the claim. The cheque to Mr. Amarouche was not proof of payment to the travel agency, the bank statement of Mr. Amarouche was only showing the deposit of the cheque and not a withdrawal for the amount, and the screenshots from WhatsApp were of no assistance. Ms. Furlan also stated that the second receipt was not considered as it was not received in the claims process.
THE LAW
22TICO’s principal mandate is consumer protection. Administering the Fund is part of that mandate. All travel agencies in Ontario are required to register with TICO and contribute to the Fund.
23The entitlement to claims and exclusions on the Fund are set out in section 57 of the Regulation made under the Act. 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.
24In administering and managing the affairs of the Fund, TICO’s Board is obliged to operate within the confines of the Regulation. TICO’s position therefore relies heavily on a strict interpretation of the statutory provisions, and the relevant sections of the Regulation are set out below.
25Subsection 57(1) states, in part, that a customer is entitled to be reimbursed for travel services paid for but not provided if the customer paid for the travel services and the payment or any part of it was made to or through a registered travel agent.
26Subsection 57 (2) states that a reimbursement under subsection (1) is limited to the amount paid to or through any registrant for the travel services that were not provided. In addition, subsection 57(3) 9 states that a customer is not entitled to be reimbursed for a claim that is based on the cost, value or quality of the travel services or alternate travel services and subsection 57(3) 11 states that a customer is not entitled to be reimbursed for consequential or indirect damages incurred as a result of the failure to provide the travel services.
27Finally, subsection 57(1)(c)(iii) clarifies that a customer is not entitled to reimbursement for travel services paid for but not provided in cases where any other person who may be legally obliged to reimburse or compensate the customer does, in fact, reimburse the customer.
28Section 61 of the Regulation sets out the requirement to submit documentation to the Board of TICO to prove the claim. The Board reviews claims made to the Fund by customers and determines entitlement. TICO’s review is based on documents submitted to it including sworn affidavits and supporting documentation.
ANALYSIS AND REASONS
29The burden is with the appellant to prove on a balance of probabilities that he is owed compensation.
30There was discrepancy in the order of events. In the claim, the appellant stated that he sent a cheque to Mr. Amarouche who then went to pay Mr. Bensaci. In his testimony he explained it the other way, that the cheque followed the payment. The appellant states this was a language issue. I accept this nuance could have been a translation mistake.
31A key element in this matter are the receipts provided by the appellant which are clearly different than other receipts/invoices of Holy Destinations Travel Inc. I find they did not come from Holy Destinations Travel Inc. The appellant’s version was called a receipt vs the other version that was called an invoice. The appellant’s version stated the company was “Holy Destinations travel” vs “Holy Destinations Travel Inc”. It did not mention a registration number nor TICO vs the other version that did. It provided only the names of the appellant and his wife and mentioned the Hajj package vs the other version that outlined a flight itinerary, accommodations and meals, method of payment and other details. While the appellant did subsequently provide another copy of the same receipt that indicated it was paid, even if it was not used in the determination of the claim since it was received afterwards, I do not find this receipt to be any more valid. I am not satisfied on a balance of probabilities that this second receipt was issued by Holy Destinations Travel Inc., a registered travel agent, to reflect the payment for travel services.
32I find that the Yazan the appellant was conversing with on WhatsApp was likely Mr. Nasreddin based on the respondent’s evidence of having communications and dealings with him.
33I agree with the respondent’s point that while the appellant produced some WhatsApp screenshots of a group discussion, he did not produce any screenshots of conversations with Yazan to demonstrate how he got the receipts, so the documents provided do not help in determining the validity of the claim.
34The appellant had no documentary evidence of any communication with Mr. Bensaci regarding purchasing or paying for the trip nor of conversations with his brother-in-law regarding payment. I am only left with the testimony and sworn statement of the appellant’s brother-in-law who stated that he paid $23,000 in cash but did not get a receipt. I agree with the respondent that this is not enough to satisfy the burden of proof, especially when paired with a false receipt as evidence.
35Section 61 of the Regulation sets out the requirement to submit documentation to prove the claim and the appellant has not shown on a balance of probabilities that he satisfied this requirement.
CONCLUSION
36Having reviewed the evidence and taken into account the submissions of the parties, and pursuant to s. 71(6) of the Regulation, I refuse to allow the appellant’s claim for compensation.
ORDER
37The appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Geneviève Painchaud, Vice-Chair
Released: October 29, 2024