Licence Appeal Tribunal File Number: 15333/TIA
In the matter of an appeal from a denied claim for reimbursement in accordance with section 57 of Ontario Regulation 26/05, under the Travel Industry Act, 2002.
Between:
Ngodup Tashi Taktsa
Appellant
and
Travel Industry Council of Ontario
Respondent
DECISION AND ORDER
ADJUDICATOR:
Rupinder Hans
APPEARANCES:
For the Appellant:
Ngodup Tashi Taktsa, Self-Represented
For the Respondent:
Karan Sharma, Counsel Husein Panju, Counsel
Held by Videoconference:
February 26, 2024
OVERVEW
1Ngodup Tashi Taktsa, the appellant, appeals the decision of the Board of Directors of the Travel Industry Council of Ontario (“Board” and “TICO” respectively) made on October 13, 2023, denying a request for compensation.
2In its decision, the Board determined that the appellant’s claim for compensation in the amount of $15,813.88 was not eligible for reimbursement out of the Compensation Fund (the “Fund”). The Board relied on sections 57(3)3 and 57(1)(a) of Ontario Regulation 26/05 (the “Regulation”) made under the Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D. (the “Act”) in denying compensation.
3Section 71 of the Regulation provides for an appeal to the Tribunal if the Board determines that a claim or any part of a claim is not eligible for reimbursement.
ISSUE
4The issue to be determined is whether the appellant is entitled to reimbursement under s. 57 of O. Reg. 26/05 made under the Travel Industry Act, 2002, in respect of monies paid to World Travel Inc. If he is entitled to reimbursement, then what is the amount?
RESULT
5Having considered the evidence, I find that the appellant is not entitled to reimbursement under s. 57 of O. Reg. 26/05, and I refuse to allow the claim in its entirety.
ANALYSIS
6TICO’s principle mandate is consumer protection. The Board administers the Fund established under the Act and determines whether a claim meets the requirements of the Regulation. The Fund is financed entirely by registered travel agents and travel wholesalers in Ontario who are required to register with TICO and contribute to the Fund. Subject to the exclusions set out in the Regulation, the Fund provides reimbursement of amounts 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 been provided. The Act specifies specific criteria under which compensation is paid.
7Section 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).
8Section 57(3) of the Regulation sets out the exclusions for when a customer is not entitled to be reimbursed out of the Fund. Specifically, s. 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.
9Finally, s. 61 of the Regulation sets out the requirement to submit documentation to the Board to prove a claim. The Board reviews the claims made to the Fund by customers and determines entitlement. The Board’s review is based on the documents submitted by the customer.
10The onus is on the appellant to establish that he is entitled to reimbursement from the Fund.
The Appellant is not entitled to reimbursement under the Regulation in respect of monies paid to World Travel Inc.
11For the following reasons, I find that the appellant is not entitled to reimbursement from the Fund because he has not met his burden to prove that he is eligible under the Act and section 57 of the Regulation.
$8,500 in Payments from March 4, 2020 to July 26, 2022
12I first turn to the payments that the appellant made to World Travel Inc. (“World Travel”) between the period March 4, 2020 and July 26, 2022. During that approximately two-year period, the appellant made payments in the amounts of $1,500, $1,000, $1,000, $1,500, $1,500, and $2,000, making a total of $8,500.
13In denying reimbursement for these amounts, the Board took the position that these amounts were paid by the appellant to World Travel for investment purposes, and not for “travel services” as required by s. 57(1) of the Regulation. The definition of “travel services” is more clearly set forth in section 1(1) of the Act as meaning “transportation or sleeping accommodation for use of a traveller, tourist or sightseer or other services combined with that transportation or sleeping accommodations.”
14The Board submits that the evidence establishes that the appellant would pay monies to World Travel and receive a reward on top of the amount paid, and this was an investment opportunity with about a 20% return. The Board asserts that no travel was booked in this two year period.
15A witness for the respondent, Lori Furlan, a claims coordinator with TICO, testified that a review of the evidence of these payments demonstrate that the appellant was not paying for travel services as defined by section 1(1) of the Act. Ms. Furlan testified that an invoice dated March 4, 2020 from World Travel to the appellant noting a payment of $1,500 did not show that any travel services were purchased. I note that the invoice states a payment of $1,500 and “20% travel rewards” of $300, and for a total of $1,800. There is no indication of any travel services purchased (whether airline tickets or hotel accommodations), who they were purchased from, dates of purchase, or listed time periods, or travellers. There is no description of any travel services purchased.
16The appellant testified that he and his family were planning a trip for 2020 or 2021, and could not travel due to the pandemic and other issues. He testified that World Travel advised him to invest money with it so that he could receive travel rewards of 20%. He provided various tour vouchers evidencing payment and a reward on top of the payment. The appellant acknowledged that the amounts paid were not directly for travel services and that he was receiving about a 20% reward on all or some of the payments.
17In response to an email query seeking details on what travel services were actually purchased with these amounts, the appellant replied by email dated August 23, 2023 that World Travel advised “us to invest money so that we can get a Travel Reward of 20%”. The appellant does not identify any travel services in the email.
18In another email dated September 8, 2023, the appellant again acknowledged that he would receive a 20% discount or reward on these monies paid to World Travel.
19I find that there is insufficient evidence before the Tribunal to indicate that the appellant used the $8,500.00 to purchase any travel services. I find, on a balance of probabilities, that the appellant did not meet his burden of establishing that any travel services were actually purchased. I find that the monies paid to World Travel over the two year period at issue appear to be an investment or for investment purposes.
20I note that the appellant’s claim must fit within the legislative framework in order to be eligible for reimbursement.
Travel Booked on August 8, 2022
21The appellant finally booked travel with World Travel on August 8, 2022 for roundtrip airline tickets from Toronto, Canada to Dharamsala, India, from August 20, 2022 to September 17, 2022, for himself, his spouse and two children.
22The appellant did not lead evidence to demonstrate that, at some point, he used the prior payments of $8,500 to pay for the airline tickets, and I am not persuaded that he did. In any event, regardless of whether he used the prior payments of $8,500 to pay for the airline tickets or used other funds, he would not be entitled to reimbursement per section 57(3)3 of the Regulation because he cancelled the booking. The trip was cancelled because of the appellant’s own actions.
23In an email from the appellant to Ms. Furlan dated September 7, 2023, he states that the family could not travel in July and August 2022 because of his spouse’s job interview in August 2022. The appellant confirmed the above in his testimony stating that he cancelled the family trip as his spouse had a job interview and due to the pandemic. He testified that it was not feasible to travel given his spouse’s upcoming job interview. He testified that if she did get hired then there would also be a probation period during which the family could not travel. In his September 7, 2023 email, he identifies the probation period as six months.
24I note that the travel services continued to be available to the appellant but were not received as he chose not to go on the trip and cancelled it. Section 57(3)3 clearly states that a customer is not entitled to reimbursement where the travel services “were available, but not received because of an act or failure to act on the part of the customer or of another person for whom the travel services were purchased.” In this case, there is no evidence before the Tribunal that the travel services were no longer available. Instead, the evidence established that the appellant cancelled the airline tickets given his spouse’s upcoming job interview and possible probationary period if hired.
25In my view, as the appellant cancelled the travel services pursuant to section 57(3)3, he is not entitled to reimbursement. I agree with the Board’s assertion that these travel services were available to the appellant but were not received due to the appellant cancelling the airline tickets, which is an act or failure to act on the part of a customer.
26These are not reimbursable amounts from the Fund, per the Regulation.
$7,313.88 in Payments made between March 16, 2023 and April 13, 2023
27Lastly, I turn to the payments made to World Travel between March 16, 2023 and April 13, 2023, specifically: $2,000 (March 16, 2023), $2,313.88 (March 17, 2023) and $3,000 (April 13, 2023), totalling the amount of $7,313.88 for airline tickets for the appellant, his spouse and two children. The appellant seeks reimbursement for this travel that did not occur.
28I note that section 57(1)(a) of the Regulation provides that a customer is entitled to reimbursement for travel services paid for, but not provided, if “the customer paid for the travel services and payment or any part of it was made to or through a registered travel agent”. The Board presented convincing and uncontroverted evidence that, on February 24, 2023, it revoked the registration of World Travel as a registered travel agent. The three payments at issue, totalling $7,313.88, were all made after the revocation of the registration of World Travel and thus were not made to a registered travel agent. There is no disagreement between the parties in this regard.
29At the hearing, the appellant acknowledged that these payments were made during a period that World Travel was not a registered agent, and that the Regulation does not allow for reimbursement after revocation.
30I find, on a balance of probabilities, that at the time the payments were made to World Travel, it was not a registered travel agent as its registration had been revoked on February 24, 2023. I find that the appellant is not entitled to reimbursement of the amount of $7,313.88 as he did not make these payments to a registered travel agent as required in section 57(1)(a).
31After weighing the totality of the evidence, I find that the appellant has not met his burden in establishing that he is eligible for any compensation under the Act and s. 57 of the Regulation.
CONCLUSION
32As a result, I find the appellant is not entitled to a reimbursement of $15,813.88 from the Fund as he as not established that he is eligible under the Act and s. 57 of the Regulation.
ORDER
33Pursuant to s. 71(6) of the Regulation, I refuse to allow the appellant’s claim for compensation.
Released: April 9, 2024
Rupinder Hans
Adjudicator