Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15517 TIA

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

Between:

Safaa Bedawi Appellant

and

Travel Industry Council of Canada Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Safaa Bedawi, Self-represented For the Respondent: Karan Sharma, Counsel

HEARD: April 29, 2024

REASONS FOR DECISION AND ORDER

background

1Safaa Bedawi, the appellant, appeals the decision of the Board of Directors of the Travel Industry Council of Ontario (“TICO”) made December 20, 2023.

2At that time, TICO determined that the appellant’s claim for compensation in the amount of $8,749.73 was ineligible for reimbursement out of the Compensation Fund (the “Fund”) under Ontario Reg. 26/05 (the “Regulation”) made under the Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D. (the “Act”), citing insufficient documentation.

REDUCTION TO PARTIAL CLAIM OF $4,000.00

3The appellant confirmed at the hearing that she now limits her claim from the Fund to $4,000.00 (the “appellant’s Claim”), being the amount paid in cash to Mohamed Hachemi Bensaci (“Mr. Bensaci”) for travel services to be provided by his travel agency Holy Destinations Travel Inc. (“Travel Agency”).

ISSUE

4The issue to be determined is whether the appellant is entitled to reimbursement of $4,000.00 for travel services not provided.

result

5For the reasons set out below, I allow the appellant’s Claim for $4,000.00 compensation out of the Fund.

ANALYSIS

6TICO administers the Fund established under the Act and determines whether a claim meets the requirements of the Regulation. The Fund is totally financed by registered travel agents and travel wholesalers in Ontario. Subject to 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.

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 circumstances in which a customer is not entitled to be reimbursed out of the Fund.

9Section 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.

10Section 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. After the hearing of an appeal, the Tribunal may, under s. 71(6) of the Regulation, allow the appellant’s Claim, in whole or in part, and direct TICO to pay the amount out of the Fund or, refuse to allow the appellant’s Claim in whole or in part.

The Appellant is Entitled to $4,000.00 Compensation from the Fund

Facts

11The facts are largely not in dispute. The time line 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 her witnesses, and TICO’s witness Lori Furlan.

12On December 21, 2022 the appellant’s husband gave Mr. Bensaci $4,000.00 as a deposit for a trip for the appellant to travel to perform Hajj during the 2023 Hajj season.

13TICO revoked the Travel Agency’s licence in the summer of 2023 and the trip never took place.

14The appellant filed her Claim with TICO August 24, 2023.

Appellant’s Position

15The appellant requests that her Claim of $4,000.00 be allowed. The appellant submitted that she has provided sufficient evidence to establish that she paid $4,000.00 in cash to the Travel Agency for travel services not provided and notes that some ten other claims against the Travel Agency have been allowed by TICO.

TICO’s Position

16TICO’s position is that the appellant is not entitled to be reimbursed for a payment for travel services that were available but were not received because insufficient documentation has been submitted by the appellant to establish that the $4,000.00 was paid for travel services. TICO relies on s. 57(1) and 57(2) of the Regulation which limit reimbursement to the amount paid to or through any registrant for travel services not provided.

17I find the appellant is entitled to $4,000.00 compensation out of the Fund because the appellant has established that she is eligible for compensation under the Act and s. 57 of the Regulation on a balance of probabilities.

18It is clear from the appellant’s testimony, the testimony of her husband Dr. Mohamed Hossam Ahmed (“husband”) and documents filed by the appellant that the appellant paid $4,000.00 in cash to Mr. Bensaci for travel services to be provided by his Travel Agency.

19The appellant testified that her husband had discussions with Mr. Bensaci regarding travel services to be provided by his Travel Agency to for a trip to Egypt and Saudi Arabia to perform Hajj. The appellant, her husband and her witness Dr. Hatem Elrefaei all testified that Mr. Bensaci was a well known and apparently reputable member of their religious community experienced in arranging trips to the Middle East through his Travel Agency for religious pilgrimages, including to perform Hajj. The appellant’s husband testified that the exact dates of the trip were not known, and could not be known for religious reasons, at the time that Mr. Bensaci asked for a deposit for the trip to be taken by the appellant. Although Mr. Bensaci originally asked for a higher deposit, the appellant’s husband and Mr. Bensaci ultimately agreed that the deposit Mr. Bensaci required on December 21, 2022 was $4,000.00.

20Documents filed by the appellant confirm that $4,000.00 was withdrawn on December 21, 2022 out of the joint bank account of the appellant and her husband and the appellant’s testimony confirms that this amount was given in cash to Mr. Bensaci at their home on the same day. This was said to be necessary because Mr. Bensaci was leaving the next day on a trip.

21The appellant’s husband testified that he withdrew the $4,000.00 from the bank account and gave it to Mr. Bensaci, although withdrawing a large amount of cash was not a routine transaction for him. When he gave the cash to Mr. Bensaci on December 21, 2022, the appellant’s husband testified that he asked for a receipt. Mr. Bensaci handwrote a receipt in Arabic. The appellant’s husband asked Mr. Bensaci to write the receipt in English as well. The English portion of the receipt states: “I Mohamed Hachemi acknowledge receiving a $4,000 from sister Safa Bedewi (sic) as a deposit of Hajj Package for 2023 Hajj Season”.

22Electronic messages sent subsequently between the appellant’s husband and Mr. Bensaci discuss visa requirements, dates and details of the intended trip. Emails sent by the appellant to her employer arranging vacation time confirm when the intended trip was to take place.

23Ultimately, the appellant’s husband lost contact with Mr. Bensaci and the time for the Hajj Package went by so that the intended trip was no longer possible.

24Through TICO press releases filed and by discussion with others in their religious community, the appellant and her husband learned that TICO had revoked the registration of the Travel Agency on July 26, 2023, that other consumers had complaints that the travel agency collected consumer payments without providing the travel services consumers had purchased, that a charge had been brought against “Mohamed Hachemi Bensaci” as officer and director of the Travel Agency, and that TICO had paid other claims for compensation.

25Lori Furlan, TICO’s claims co-ordinator, testified that the documentation provided by the claimant to TICO was insufficient in that there was no official receipt from the Travel Agency, only a hand-written receipt which did not contain details of the transaction or what services were purchased. Ms. Furlan testified that compared to another receipt from another claimant, the appellant’s receipt was not on a Travel Agency business form showing the dates of travel, itinerary, where the flights originate and return to, names of hotels and number of travellers.

26TICO takes issue with the content of the receipt the appellant was given for the $4,000.00 and notes that the receipt does not state what was purchased, does not state the total price of the Hajj Package, does not state how many travellers were going to travel and was given in the appellant’s home, not in a business office, and does not state the name of the Travel Agency. However, I find that the appellant and her witnesses explained these deficiencies. Their testimony as to the course of events is consistent with the documentary evidence, and I find it credible.

27I find that the receipt was written by Mr. Bensaci, the principal of the Travel Agency and signed by him, as both the appellant and her husband testified. The reason for the payment is stated to be for “Hajj Package” for the 2023 “Hajj Season” which is a religious event held in a particular season known to both the appellant and Mr. Bensaci. According to the testimony of the appellant’s husband, this is the only commercial transaction that was underway at that time between the appellant and her husband and Mr. Bensaci. The appellant’s husband testified that the total price was not known at the time the $4,000.00 payment was made and further details were discussed in electronic messages and communications between he and Mr. Bensaci. Although the number of travellers is not stated on the handwritten receipt, it was discussed that the appellant would be travelling according to both the appellant and her husband’s testimony. The fact that the receipt was given to the appellant at her home does not make it any less valid. The fact that the receipt does not state the name of the Travel Agency also does not make it less binding on the Travel Agency. Given the communications between Mr. Bensaci and the appellant’s husband as seen in the documents filed by the appellant, the payment was on a balance of probabilities for travel services such as the booking of accommodation and obtaining of visas and in the context of these communications.

28I also find unpersuasive TICO’s submission that this handwritten receipt is less specific and business-like than other receipts obtained by other claimants regarding this Travel Agency. While this may be true, when the evidence in this case is viewed in totality and in the context of the conversations between the appellant’s husband and Mr. Bensaci, it establishes that the handwritten receipt reflects payment of $4,000.00 made for travel services that were not provided within the meaning of s. 57(1) of the Regulation. The sum was paid “to or through” a registrant for the travel services that were not provided within the meaning of s. 57(2). Mr. Bensaci, as the principal of the Travel Agency, accepted the payment on behalf of the Travel Agency given that the receipt refers specifically to the Hajj trip for the appellant.

29TICO relies on s. 61(1) of the Regulation which states that the claimant shall provide such documents and other information as the Board of Directors requires to prove the claim and s. 61(2) states that the Board of Directors may request the claimant provide additional documents or other information. However, the issue at the hearing before me is not whether the appellant has provided documents as required by the Board of Directors. The issue is whether the appellant’s Claim meets the requirements of s. 57(1) of the Regulation. I find that the information provided to me at the hearing establishes on a balance of probabilities that the appellant’s Claim is eligible for reimbursement to the extent of $4,000.00.

30As a result, I allow the appellant’s Claim for $4,000.00 compensation out of the Fund.

Conclusion

31As a result, I allow the appellant’s Claim for $4,000.00 compensation out of the Fund because the appellant has established that she is eligible for compensation under the Act and s. 57 of the Regulation on a balance of probabilities.

ORDER

32Pursuant to s. 71(6) of the Regulation, I allow the appellant’s Claim and direct payment to her of $4,000.00 compensation out of the Fund.