Licence Appeal Tribunal File Number: 15790/TIA
In the matter of an appeal from a decision of the Travel Industry Council of Ontario denying reimbursement of a claim.
Between:
Nisreen Abdul-Aziz
Appellant
-and-
Travel Industry Council of Ontario
Respondent
DECISION AND ORDER
Vice-Chair: Geneviève Painchaud
Appearances:
For the Appellant: Nisreen Abdul-Aziz, Self-represented
For the Respondent: Lori Furlan, Claims Coordinator, TICO; Karan Sharma, Counsel
Observers: Husain Panju; Zima Al-Madallal (applicant’s daughter)
Heard by videoconference: August 29, 2024
OVERVIEW
1Nisreen Abdul-Aziz (the “appellant”) appeals a decision dated April 2, 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 her 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 $12,500.00 from the Fund for a Hajj package including travel to and from Ottawa to Makkah (the “Trip”).
3The appellant made this claim for a trip she submits never happened because the travel agent defrauded her and others. The appellant claims that she went to pay the full amount in cash to Hachemi Bensaci of Holy Destinations Travel on February 6, 2023 in the presence of N. Mohammed and L. Rauof.
4The respondent asserts that in her claim, the appellant had not proven that she made a payment for travel services to a registered travel agent.
ISSUE
5Is the appellant entitled to reimbursement of $12,500.00 for travel services not provided?
RESULT
6For the reasons that follow, I refuse the appellant’s appeal for compensation.
EVIDENCE
Appellant’s Submissions
7The appellant submits that on February 6, 2023, she met with Hachemi Bensaci of Holy Destinations Travel to pay him $12,500.00 in cash for the Trip which was planned for June 21 to July 7, 2023, and was accompanied by Nisren Mohammed and Lamiaa Raouf when she made the payment.
8In her evidence, the appellant included an affidavit from Nisren Mohammed attesting that she saw her pay $12,500.00 in cash to Mr. Bensaci on February 6, 2023 for the Trip. She also included an affidavit from Lamiaa Raouf stating that she saw her pay this same amount to Mr. Bensaci, but on February 16, 2023. These two did not appear as witnesses at the hearing.
9The appellant submits that she used $5,500.00 she had in cash at home and borrowed $7,000.00 from her son, Khalil Abdul Jabar. Mr. Jabar’s affidavit states that on February 1, 2023, he lent the appellant $7,000.00 to help her pay “the rest of” the cost of the Trip. Also included in support is Mr. Jabar’s Scotiabank small business account statement showing a January 27, 2023 “Debit memo-Adjustment other” transaction withdrawal of $7,000.00 and several ABM withdrawals.
10The appellant stated that she received a receipt from Mr. Bensaci at the same time as she gave the money on February 6, 2023 which is the receipt she submitted in her TICO application for compensation. She also stated that she received that same receipt from someone named Yazan through WhatsApp. She added that she speaks to Yazan all the time and that he provided her with a second copy of the receipt indicating that the trip was paid in full and signed by Mr. Bensaci, since he was one of only two people that spoke to Mr. Bensaci. She had stopped communication with Mr. Bensaci after he asked her for more money.
11According to the appellant, about 50 people have had a similar issue and that she went with a group of 15 to 30 people and they all filed a police report with the Ottawa Police Service.
12The appellant argues that TICO should have tried to contact Mr. Bensaci to ask him directly.
Respondent’s Position
13The 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) in other claims. Also, the receipt indicated a balance owing of $12,500.00 and there was no proof of a cash withdrawal from the appellant.
14Lori Furlan, claims coordinator for TICO explained that the receipt submitted was not consistent with other invoices that TICO received regarding claims for compensation regarding Holy Destinations Travel, which were much more detailed in terms of what services were included. Several claims with the other invoices were approved for compensation by TICO.
15Four other claims, including a claim from Yazan were denied. All were from receipts provided by Yazan. Three of the four claimants appealed TICO’s decision and the one that did not appeal disclosed in his evidence that the money he gave was for Zakat and not travel services.
16TICO did not consider the signed receipt sent in by the appellant as it was not submitted to them in the claims process, but only to the LAT in this application, but they do not dispute the signature. Ms. Furlan stated that, although she cannot speak for the Board of TICO, even if the receipt with signature was sent in with the claim, the claim would probably not have been approved.
17The respondent highlights many inconsistencies:
a. The receipt does not include the basic information it should have, including date of the Trip and details of services;
b. Other claimants sent receipts/invoices on business letterhead;
c. It is not clear how the appellant got the initial receipt and when and that she said it was on the same day as when she paid and then she said she received it from another individual;
d. She did not explain when she got the signed receipt;
e. She says she got the receipt through WhatsApp but had no evidence to corroborate this;
f. The receipt was not received from a travel agency so there is no evidence this is a proof of travel.
18The respondent submits that Mr. Bensaci is a fraudulent person and therefore, even if he signed the second receipt, he has no credibility.
THE LAW
19TICO’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.
20The entitlement to claims and exclusions on the Fund are set out in s. 57 of the Regulation made under the Act. The Board must 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.
21In 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.
22Subsection 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.
23Subsection 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, s. 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 s. 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.
24Subsection 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.
25Section 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.
26Finally, s. 66 of the Regulation states that the maximum amount of $5,000.00 per person whose travel services were paid for by a customer may be paid by the Fund.
ANALYSIS AND REASONS
27The burden is with the appellant to prove on a balance of probabilities that she is owed compensation which would be to a maximum of $5,000.00 as per s. 66 of the Regulation.
28One of the key elements in this matter is the fact that the receipts provided by the appellant are clearly different than other invoices of Holy Destinations Travel, and even from another one dated the same day. I am not satisfied that the receipts provided by the appellant came from Holy Destinations Travel. The appellant’s version provided to TICO with her claim was called a receipt while the version from other customers were called an invoice. The appellant’s version stated the company was “Holy Destination travel” rather than Holy Destination Travel Inc. which was the correct name. The appellant’s receipt did not mention a registration number nor TICO whereas the other versions did. The appellant’s receipt provided only the name of the appellant and mentioned the Hajj package for 1 person while the other versions outlined a flight itinerary, accommodations and meals, method of payment and other details. The appellant’s receipt mentioned a balance of $12,500.00, while other invoices showed a subtotal, deposit and balance due on all of them, notably showing the balance due only when not paid in full.
29While the appellant did subsequently provide another copy of the same receipt with a handwritten note indicating it was paid, along with a signature, even if it was not used in the determination of the claim, I do not find this receipt to be any more valid. I am not satisfied this receipt was remitted by Holy Destinations Travel. Even if was signed by Mr. Bensaci, this receipt was provided to the appellant by someone that is not affiliated with Holy Destinations Travel and not a registered travel agent.
30The appellant had no documentary evidence of any communication with Mr. Bensaci regarding purchasing or paying for the trip. Evidence of such communication would be expected with respect to a purchase of this kind and its absence is concerning.
31The appellant gave conflicting evidence regarding when she received the first receipt and was also unsure when she got the second receipt which diminishes the reliability of her account.
32There was no clear evidence on how the appellant got the $12,500.00 in cash, as her son stated that on February 1, 2023 he “lent” her “$7,000 in order to help her pay off the rest of” the Trip. I could not conclude what “the rest of the” trip meant nor was there evidence of this loan being repaid.
33I am only left with the affidavits of the two people who attest being there when the appellant paid the amount in cash, but they mentioned it happened on different days, one on February 6 and the other on February 16, 2023. I agree with the respondent that this is not enough to satisfy the burden of proof, especially when paired with a dubious receipt as evidence.
34Section 61 of the Regulation sets out the requirement to submit documentation to prove the claim and I agree with the respondent that the appellant has not shown on a balance of probabilities that she satisfied this requirement.
CONCLUSION
35Having 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
36The appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Geneviève Painchaud, Vice-Chair
Released: September 9, 2024