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Canada: Recent Canadian Travel Law Cases of Note

01/06/2009

WARNING TO ALL TRAVEL AGENTS – The Ontario Superior Court of Justice recently confirmed that travel agents have a statutory obligation to inform their customers about required travel documents.  Before entering into an agreement for travel services (and before taking any payment or credit card information), travel agents must advise their customers (in the case of proposed travel outside Canada) about the typical information and travel documents (e.g., passports, visas and affidavits) that will be required for each person for whom travel services are being purchased (see Travel Industry Act, Ontario Regulation 26/05, s. 36, s. 36(e), s. 38(1)(k)).

In Miskewycz v. Gaal ([2009] O.J. No. 345), the court held that the defendant travel agents had breached their statutory duty by failing to inform their clients of passport restrictions for travel to Panama City.  Specifically, the defendants had neglected to inform the Miskewycz's that entry to Panama City required a valid passport that would not expire within six months of the dates of travel. Unfortunately, the Miskewycz's passports expired within three months and as such they were consequently denied carriage by the airline. The defendants were ordered to reimburse the Miskewycz's for the entire cost of the aborted trip.

This decision is of particular interest to travel agents in light of the new Western Hemisphere Travel Initiative (WHTI), which took effect on June 1, 2009 and requires all travellers (including Canadian and U.S. citizens) to present a valid passport or other approved secure document when entering the United States.

Travel agents must be aware of and inform their clients of the following WHTI-compliant documents that are acceptable for entry into the United States:-

  • a passport;
  • a NEXUS card – expedites the border clearance process for low-risk, pre-approved travelers entering Canada and the United States;
  • a FAST card – facilitates the movement of pre-approved eligible goods across the Canada–U.S. border for low-risk, pre-approved commercial importers, carriers and registered drivers; or
  • an enhanced driver's license (EDL) or enhanced identification card (EIC) from a province or territory where a U.S.-approved EDL/EIC program has been implemented.

The Government of Canada continues to recommend that travellers carry a valid Canadian passport for all visits abroad, including to the United States. This is the only universally accepted identification document, and it proves that the holder has a right to return to Canada.  For more information on the WHTI, please click here.

BEWARE OF CLASS ACTIONS FOR UNPLEASANT VACATIONS – The Ontario Superior Court of Justice recently overturned a decision denying certification of a class action proceeding for plaintiffs who had vacationed at various Riu Resorts in the Dominican Republic during an outbreak of the norovirus (also know as “Norwalk” – a common gastrointestinal illness resulting in fever, chills, dizziness, headaches, stomach pains, vomiting and diarrhoea).

The defendant tour operator had provided vacation packages (through Sunquest Vacations) that included airfare and hotel accommodation. One week prior to the plaintiff's departure, she learned of an outbreak of an unidentified illness at her destination. Sunquest representatives advised her that the illness was of no concern and informed her that she would forfeit her trip if she did not travel on the dates she booked (note: in the month prior to the plaintiff’s trip, the defendant had received ongoing and daily reports of widespread gastro-intestinal illness at the destination in question). The plaintiff took her vacation and became extremely ill within two days of arrival. Her symptoms persisted for four weeks after her return and she was ultimately diagnosed with a Norwalk viral infection. Her travel companions also became sick, as did many other guests of the Riu Resorts.

The plaintiff claimed damages for negligence and breach of contract. She contended that the defendant failed to take adequate steps to disclose the outbreak of the virus. The proposed class was comprised of individuals that booked Sunquest vacation packages through the defendant at the three specific Riu Resorts between November 2004 and June 2005. The motions judge found that the class definition was overly inclusive and narrowed the class by reducing the date range (given the large number of individuals that had traveled to the resorts during a time when there was no evidence of gastro-intestinal illness).

The plaintiff recently appealed the motion judge's refusal to certify the class action and the Ontario Superior Court of Justice held that the motions judge had erred in failing to analyze the advantages of a class proceeding when considered against alternative procedures in light of his narrower class definition. In so doing, the judge had failed to address whether a class proceeding was a fair, efficient and manageable procedure for the common issues. The court held that the appropriate remedy was to refer the issue of certification back to the motions judge in order to permit the plaintiff to provide a revised litigation plan.

By Daniel Cole, Associate

Daniel Cole is an associate of Gowling Lafleur Henderson LLP and can be reached at daniel.cole@gowlings.com


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