Be the agent of your own good fortune

Joyce Blond Frank B.A., B.C.L., LL.M.

February 2012

You are lucky enough to spend some time down south during the winter. Your son is in school in Montreal and you thought it might be nice to have him join you and the rest of the family over the Christmas holiday.

You phoned your travel agent in September and bought him a return ticket. The confirmation stated that he would travel at 8 am on December 24 and return January 12 on a 5:45 flight. Total cost: $560.83.

A month later, you received a notice that the flight on December 24 would leave at 1 pm instead of 8 am. Your email address changes in November and you advise your travel agent. Your son’s email ticket is sent on December 8 and the flight time is given as 8 am.

You’re down south awaiting your son’s arrival when you receive a telephone call from your travel agent informing you that your son did not show up for the flight. But you had no idea the flight time had changed back to 8 am because you never received the email ticket. You ask the travel agent to get you another ticket for your son but she informs you that she is unable to do so. You yourself are able to find one at a cost of $642.09.

As your holiday together comes to an end, you become uneasy about your son’s return flight and email your travel agent on January 10 and 11, that is, two days and one day prior to his scheduled flight. On January 11 at about 4 pm, you receive your son’s tickets, which the agent says were sent December 8.

A few days after your own return home, you ask your travel agent for payment of the $642.09, which you paid for the second ticket. Your letter is unanswered and so you go to small claims court.

The reason your son missed his original flight is that you didn’t know the time of departure had changed. The invoice you received stated clearly that it was your responsibility to confirm flight times. It even provided a telephone number to call and a website to look at.

The agent insists you received the invoice on September 1, but you say you didn’t. The agent also says they never received notification of your change of email address and the warning to verify flying times was also on the ticket emailed to the original address.

Will the judge believe you when you say you never received the ticket or the invoice, or will he believe the agent, who says she never received a change of email address and she did send the invoice on September 1.

The judge decided he did not have to determine the credibility because you and the travel agent had a contract for service. In this kind of contract, the agent had to provide a service to you for a price. The agent’s contract is a consumer contract and therefore governed by the Consumer Protection Act. The agent had to act in your best interest with prudence and diligence; the travel agent had to produce results. Furthermore, under the Consumer Protection Act, the travel agent cannot be exonerated from performing duties.

The agent should have provided you with all information pertaining to the flight time change, and if she failed to do so, she is to be held responsible for the damages that her failure has caused you.

The court, in this case, was sympathetic to you.

It placed a heavy burden on the travel agent and suggested that she should have made sure the time change information had been received, perhaps by telephoning instead of, or as well as, emailing.

The agent was ordered to pay $642.09 with interest and court costs. You got your money back this time. But I would strongly suggest to all travelers not to rely on winning in the court and to always verify departure times.