Legal Ease: While travelling, make consumer law work for you

Photo by Hayley Juhl

There is an abundance of advertisements in the newspaper containing alluring promises of attractive vacation deals.

My family has used these on occasion with great success. There was one time, however, when the people at the hotel were completely unaware of the $50 rebate on the hotel room, which had been promised in the ad. Happily for us our problem was satisfactorily resolved, but this is not always the result and the courts may be called upon to decide.

Such cases are usually based on the Quebec Consumer Protection Act (CPA), which applies to every contract for goods or services entered into between a person doing business (merchant) and a consumer. The Act stipulates that no merchant who advertises for business can make false representations with regard to any aspect of the services offered to the consumer. It also provides that the services offered must conform to all advertisements made regarding those services. The consumer is further protected by a provision in the act prohibiting the merchant from absolving himself of the consequences of his actions.

Travel agencies and wholesalers often try to invoke the non-responsibility clauses printed on their electronic tickets and brochures, or found on their web sites to absolve themselves from liability. The courts do not often let them get away with that. In the case of the purchaser of an all-inclusive vacation who fell and hurt herself on her way to dinner shortly after arriving at her holiday destination, the judge held she had a right to compensation from the wholesaler.

He found the accident occurred because there was insufficient light and the traveler was unable to see a crack in the sidewalk.  Even though it was the hotel that had failed to program its lighting system properly, the wholesaler was ordered to pay damages of $1400.

The wholesaler had filed a written defence quoting from the general conditions contained in its brochure, which specifically stated that it was neither an airline carrier nor a hotel and that it did not exercise any control over either of those third parties and could not be held responsible for their acts of negligence.

The judge held that such clauses are invalid under the CPA and furthermore that the services offered by the wholesaler had to be provided in a safe and secure manner and without exposing the client to danger to his health or safety.

Another example is that of a newlywed couple who signed up for the bonus offer of a special honeymoon package advertised by a well-known travel wholesaler. Upon arrival they were told that the hotel was unaware of the extras to be provided as part of the package and the couple was obliged to pay for these themselves.

After they returned and were unable to settle the matter with the wholesaler, they sued on the grounds of false representation. The wholesaler invoked its clause of non-responsibility contained in its electronic brochure, which it alleged absolved it from any fault or negligence on the part of a third party, namely, the hotel. 

In this particular case, the couple had not benefitted from the bonus offer but was satisfied with the rest of the trip. The judge held that the offer of a honeymoon package was accessory to the principal contract and that the couple was satisfied with the execution of the main contract. He would not reimburse the trip but did award the couple an amount equivalent to 25% of what they had paid out.

Another travel nightmare is the lost suitcase. One couple purchased a trip to Cuba from a wholesaler. They travelled with three suitcases but only two arrived. The third was found in Montreal after the couple had returned and the airline was unable to explain why it could not be found earlier. The couple sued both the airline and the wholesaler.

The airline invoked the clause printed on their electronic ticket limiting their responsibility. The judge found the clause had not been brought to the attention of the consumer and was therefore without effect. He also found the airline had not taken reasonable measures to prevent the incident and ordered it to pay the couple $871.

The wholesaler was ordered to pay $750 for the inconvenience its clients had incurred on the grounds that it had failed to carry out its obligation to care for its clients after they had arrived at their destination. The company representatives had done nothing to help and had proven to be totally ineffective.

Under our law, the services provided by the travel wholesaler or travel agent are guaranteed and must be provided safely. They usually are but should you run into a problem that cannot be resolved in a pleasant and satisfactory manner, chances are the courts will judge in your favour.

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