Are tour operators responsible for helping vacationers when a holiday goes off the rails?Ìý
When I shared stories last week of dozens of Canadians who felt abandoned and endangered by Sunwing and its resort operator in Freeport, Bahamas after smoke and ash from nearby fires infiltrated their rooms, the comments section online blew up.Ìý
Readers were divided over whether the tour operator, Sunwing in this case, was responsible to move the travellers at no cost or reimburse them.
“Some have commented that travellers need to be responsible for their own safety and recognize that standards/regulations/laws differ to those in Canada,” writes Michelle, who identified herself as a former travel agent. “Yes, yes, yes, BUT. The travellers weren’t booked into some hole in the wall they’d found online … The reason you book through a tour company is precisely to avoid these types of situations where you are left to fend for yourself.”
I thought Ontario’s travel regulator would provide reliable information to settle the dispute.Ìý
Even gift cards kept under lock and key by retailers are vulnerable to bad actors with the will
What I learned, however, suggests the Travel Industry Council of Ontario (TICO) may be misinterpreting the Travel Industry Act and its regulation to the detriment of consumers.
In preparing for my interview with TICO’s chief operating officer this week, I did some homework. The Auditor General’s office , which got almost no media scrutiny at the time.Ìý
Investigators with the Auditor General’s office reviewed a sample of 40 files relating to 15 travel companies registered with TICO that netted the highest number of consumer complaints between 2017 and 2022.
Investigators found that 33 per cent of the complaints involved potential violations of Ontario’s Travel Industry Act that were not referred for investigation or enforcement as required by TICO’s complaint-handling policy.
The auditor’s report didn’t lay out the specific regulatory breaches that TICO failed to catch.
Dorian Werda, TICO’s chief operating officer, may have inadvertently pointed them out to me.
I wanted to know to what degree tour operators areÌýresponsible for guests in an emergency. What recourse, if any, do the Bahamas travellers have under the law for compensation?
The Travel Industry Act’s regulations,ÌýWerda told me, hold tour operators responsible for conditions of accommodation so vacationers get what they pay for — but with an asterisk.Ìý
“Section 39Ìýis designed to address situations where the travel servicesÌý— such as accommodationsÌý— are not as they were represented at the time of sale and the fact is known before the customer begins using the services.”
Readers and experts flood my inbox after report of a pc28¹ÙÍøman needing nearly $1,400 in
I pointed out that the word “before” appears nowhere in the regulations.
“You’re correct,” Werda advised. “The word ‘before’ does not appear in the Regulation. However, to understand how this section applies in practice, it’s important to look at the context of Sections 39 and 40 together and how they work in conjunction before departure and when the travel company is made aware of an issue.”
What the regulation actually says, is that travel companies registered with TICO “shall take reasonable measures to ensure that the accommodation is, at the time the customer uses the travel services, in the same condition as was described by the registrant (tour operator) at the time of sale.”
Sunwing’s website says the all-inclusive Viva Fortuna Beach by Wyndham featuresÌý“lush foliage and modern accommodations” with private balconies — not rooms so full of thick smoke you could touch it, as Quebec vacationer Anthony Grenier told me his family experienced, or terraces blanketed in ash, as reported by numerousÌýguests.
If the conditions of accommodation change, the regulation also requires travel companies “promptly notify the travel agent or customer …ÌýandÌýoffer the customer the choice of a full and immediate refund or comparable alternate travel services acceptable to the customer.”
Dozens of Canadian travellers told me they demanded Sunwing ³¾´Ç±¹±ðÌýthem to a different hotel unaffected by smoke. They said they were told this would only be possible if they agreed to pay more — which some did.Ìý
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Aruna Kahn paid more than $7,000 on top of her original booking price to relocate her family, including her mom who is in remission from cancer, her 73-year-old father, and her six-year-old son.
“When my dad went to the front desk, there were so many people crying, and he couldn’t get a hold of the Sunwing rep,” Kahn said. “The front desk told him to put the air conditioning system on. I messaged Sunwing as I couldn’t get a hold of anyone to tell them the situation.”
It occurred to me that Sunwing may also be misinterpreting the intent and application of Ontario’s travel regulation in its communications to the vacationers seeking refunds for their terrifying experience in the Bahamas.
“On at least six occasions, Air Canada did the exact same thing and separated us at the last
Sunwing has denied refund claims from some of these travellers by email, stating “the fire in the area is considered a force majeure event, and while the situation is challenging, it is beyond the control of Sunwing and the hotel.”
But Ontario’s travel regulation clearly states that “force majeure” exemptions apply solely to “scheduled departure of any transportation” and not the standard of accommodation.
Werda said TICO agrees, but provided examples that took a narrow view of the regulation and a tour operator’s responsibilities to the consumer.Ìý
“For example, if someone purchased an ocean view room and on arrival was assigned a garden view room, this type of issue would be captured by a change in the standard of accommodation,” said Werda. “A change in accommodation would be arriving at the destination and being bumped from the hotel due to overbooking, whether before or after departure.”
Sunwing has not yet responded to the Star’s request for comment.
Sunwing president Andrew Dawson is one of three elected industry directors on TICO’s board.ÌýWerda said this is not a conflict of interest as the board is not involved in day-to-day operations.
Ontario’s Ministry of Public and Business Service Delivery and Procurement, which oversees TICO, said it “cannot intervene in TICO’s independent exercise of its statutory authority to administer and enforce TIA (Travel Industry Act), nor can it provide legal advice.”Ìý
John Mather, a commercial litigation lawyer with DMG Advocates in Toronto, said connecting “force majeure” exemptions to anything but transportation and suggesting an immediate refund is off the table is an “obvious error.”
A judge isn’t bound by TICO’s interpretations of regulations if consumers challenge their denied claims in court, Mather noted.Ìý
Jean Hébert, executive director of the Canadian Association of Tour Operators, represents 18 companies, including Sunwing.
In his view, tour operators must abide by the regulations as written and that consumers are entitled to get what they pay for.Ìý
He also pointed to the association’s code of ethics that its members must accept, highlighting sections on professionalism and respect toward customers.Ìý
“They will do whatever is necessary to provide the service the customer was supposed to receive,” he said. “If they don’t, they won’t stay in business very long.”
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