Faarah v. Board of Directors of the Travel Industry Compensation Fund, 2025 CanLII 18202

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

Between:

Fadumo Faarah and Abdirahman Faarah

Appellants

And

Board of Directors of the Travel Industry Compensation Fund

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR:

Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellants:

Fadumo Faarah, Appellant Abdirahman Faarah, Appellant

For the Respondent:

Lori Furlan, Claims Coordinator Shantam Gorawara, Counsel

Heard by videoconference:

February 19, 2025

OVERVIEW

1Fadumo Faarah and Abdirahman Faarah (“appellants”) appeal the decision letter of the Board of Directors of the Travel Industry Compensation Fund (“respondent”) dated February 29, 2024. The letter stated that the appellants’ claims for compensation were ineligible for reimbursement out of the Compensation Fund (the “Fund”) under Ontario Regulation 26/05 (the “Regulation”) made under the Travel Industry Act, 2002, S.O. 2002, c. 30, Sched. D. (the “Act”), citing insufficient documentation.

2The appellants appealed the respondent’s decision letter on January 25, 2025, 316 days after the statutory limitation date for appealing the decision.

3Section 71(2) of the Regulation sets out a 15 day deadline to appeal from the respondent’s decision about a claim against the Fund. The deadline in this case is March 15, 2024.

4The appellants brought a motion to extend the time for filing their appeal. Both parties agreed that, if the motion for the extension of time is granted, we would proceed to the hearing of the appeal.

ISSUE

6The issue to be decided on this motion is whether the appellants have established reasonable grounds to support an extension of time to appeal their claims for compensation.

RESULT

7The motion to extend the time for filing the appeal is denied.

ANALYSIS

8Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G gives the Tribunal the discretion to grant an extension of time where there are reasonable grounds for applying for the extension and for granting relief.

9In Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that, on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. The factors to be considered are:

a) the existence of a bona fide intention to appeal within the appeal period;

b) the length of the delay;

c) prejudice to the other party; and

d) the merits of the appeal.

No factor has supremacy over the other three.

10The appellants bear the burden of proving the above factors apply to support a motion to extend the time to appeal.

11I have considered the evidence relating to each of these factors as they apply to this case.

a) Bona fide intention to appeal within the appeal period

12I do not accept that the appellants had a bona fide intention to appeal within the 15-day appeal period.

13The respondent’s decision letter of February 29, 2024, sent to both appellants and 3 other family members who had requested compensation for the trip in issue in the appellants’ appeals, notified the appellants of their right to appeal as well as the 15-day period in which to appeal to this Tribunal.

14Abdirahman Faarah (“Abdirahman”) testified on behalf of himself and his sister, Fadumo Faarah (“Fadumo)”. He stated that he took the lead in dealing with the appeals not only of Fadumo, but also three other family members who paid monies for the trip in issue in his notice of appeal. His family decided that only he and Fadumo would appeal the respondent’s decision letter.

15Abdirahman conceded that he and Fadumo are aware that they did not appeal within the 15-day limitation period and submitted the following reasons.

16Firstly, during the 15 day appeal period, Abdirahman and his spouse and children were subject to a residential tenancy eviction order from their landlord. The eviction notice required that the family vacate their rental unit by March 31, 2024. Abidirahman testified that the necessity and urgency of obtaining another home, as well as his work and caring for his family of 3 (soon to be 4), consumed his time during the appeal period ending March 15, 2024.

17The respondent submits that the eviction notice is dated January 3, 2024, and that Abdirahman had sufficient notice and time to allow him to deal with the eviction, as well as the appeal of the decision from the respondent. The respondent also submits that Fadumo was not living with Abdirahman, and the eviction had no bearing on her ability to file an appeal on her own behalf in a timely manner. The evidence indicates that Fadumo was aware of Abdirahman’s eviction but still allowed him to “take the lead” in the appeals for herself and the other family members listed in the decision letter.

18I find the respondent’s submissions persuasive. I find Abdirahman was not caught by surprise with the eviction notice during the appeal period. Even if he was, I find that this is not a persuasive reason for neglecting to appeal the respondent’s decision letter within the prescribed 15-day period. Also, as the eviction notice was not related to Fadumo, I agree with the respondent that the eviction does not form a reason for her not appealing on her own behalf during the appeal period.

19Secondly, Abdirahman cites the birth of his daughter, and the ensuing busyness, as a reason for not appealing by March 15, 2024. He submits that the busyness of the birth of his daughter, plus the necessity of moving the family to another home, made it difficult to appeal within the prescribed period.

20The respondent submits that the birth certificate of Abdirahman’s daughter Sawdah, as provided by Abdirahman, indicates that his daughter was born on April 17, 2024. The respondent submits that this is more than a month beyond the deadline to appeal. Subsequently, the birth of the daughter would not have prevented Abdirahman from appealing by the March 15, 2024 deadline.

21I, again, concur with the respondent. I see no reason why the birth of Abdirahman’s daughter on April 17, 2024 would have, or could have, prevented him from appealing the decision by March 15, 2024. Similarly, as noted above with respect to the vacating of Abdirahman’s home, the birth of his daughter would not have prevented Fadumo from filing an appeal on her own behalf.

22Thirdly, Abdirahman submits that the decision letter was somewhat confusing with respect to the amount that he and Fadumo were able to appeal for. The decision letter states that “it was determined that the claims are not eligible for reimbursement from TICO [Travel Industry Council of Ontario].” The decision letter then proceeds to advise that “a maximum amount of $5,000.00 for each person whose travel services were paid for by a customer may be paid from the Fund. As there were two people traveling, the maximum amount that could have been paid from the Fund if the claim had been found eligible is $10,000.” It continues in presenting a graph that showed a “Possible Eligible Pro-Rated Amount” payable to Abdirahman of $2,400.00, and to Fadumo of $2,640.00, if they were eligible.

23Abdirahman testified that, within the appeal period, he had attempted to contact the claims coordinator at TICO to clarify the amounts that they could include in their appeals. However, those calls were not returned.

24Upon questioning at this motion hearing, the respondent advised that the claim amount for the appellants’ appeals could be in the amount of $5,000.00 each.

25I find that the decision letter is unnecessairly confusing in regards to the amount to be appealed. Nevertheless, I conclude that there is no reason that the appellants could not have appealed in the maximum amount of $5,000.00, despite the numbers on the graph.

Conclusion regarding bona fide intention to appeal within the appeal period

26For the reasons stated above, I conclude that the appellants did not have a bona fide intention to file within the appeal period. While Abdirahman presented reasons for not filing within the 15 day period, I do not find them convincing. Fadumo also did not provide any evidence which would lead me to believe that either she, nor Abdirahman, intended to file within the 15 day period.

b) Length of the delay

27The respondent submits that the delay of 316 days is “excessive, significant, and considerable” and I agree. One of the purposes of legislatively enacted limitation periods is to create a level of predictability and for parties, particularly respondents, to regulate their affairs on the basis of those limitation periods.

c) Prejudice

28The respondent submits that the length of the delay (316 days) creates a prejudice to its office in that it would be required to revive the documents, and the necessary witnesses in order to properly present its case. The respondent also submits that, by the time of a hearing, the memories of the events leading to the appeal would not be what they otherwise would be had the appeal been filed in a timely manner.

29I concur with the respondent that the excessive amount of delay in filing the appeal causes a measure of prejudice. The purpose of time limitations is not only to allow a degree of predictability to the parties, but also to ensure that the best evidence could be presented in a timely fashion. I do find that the respondent is prejudiced by this delay. While its records of this matter are easily accessible, much of its evidence will be offered through the testimony of their witnesses. This testimony would have been best proferred at a time closer to the denial of the appellants’ claims.

d) The merits of the appeal

30On a motion to extend time to file an appeal, the appellant need not establish its case on a balance of probabilities, but only that their version of events, if believed, could reasonably result in a favourable outcome.

31It appears that the appeal is unlikely to succeed on the merits, even if the time to appeal is extended.

32Abdirahman testified that he and Fadumo desired to assist their parents in attending Hajj. The Hajj was to occur in Saudi Arabia in June, 2024. He testified that he, Fadumo and 3 other members of his family paid a total amount of $25,000.00 by e-transfers to an agent of Holy Destinations Travel Inc. Those travel services never materialized.

33The decision letter of February 29, 2024 cites the reason for the denial of the claims for compensation as “no supporting documentation to substantiate that payments were made to an Ontario registered travel agency, specifically, Holy Destinations Travel Inc.” This position was confirmed in the testimony of Ms. Lori Furlan, Claims Coordinator with TICO, testifying on behalf of the respondent.

34Abdirahman testified that he provided bank statements, e-transfer statements and WhatsApp screenshots to the respondent showing payments made to the agent for Holy Destinations Travel Inc. He further testified that, should this matter proceed to a hearing, he would be able to produce additional documentation substantiating those payments.

Conclusion regarding the merits of the appeal

35The respondent’s denial decision in its letter dated February 29, 2024 is based upon a lack of documentation substantiating payment to Holy Destinations Travels Inc. If the appellants have sufficient evidence and documentation to establish those payments either to Holy Destinations Travels Inc. or its agent, I conclude that, if believed, the appeal could reasonably result in a favourable outcome.

CONCLUSION

36I have found that the appellants did not have a bona fide intention to file within the 15 day period. I also have found that the delay is excessive and that the delay will cause prejudice to the respondent. I have also found that there is a reasonable chance of a favourable outcome should this matter proceed to a hearing. However, I find that the lack of a bona fide intention to file within the statutory timeframe (and, indeed, the delay of over ten months to file) and the prejudice that that exorbitant delay creates outweighs the reasonable chance of a favourable outcome. I find that those factors do not favor the granting of the extension of the extension to filing the appeal. The appeal is, therefore, denied.

I ORDER AS FOLLOWS:

37The appellant’s motion to extend the time to file their appeal is denied.

38The Tribunal file shall be closed.