Adanac v. Goel et al Date:, 2013 BCPC 342

Citation: Adanac v. Goel et al Date: 20131016 2013 BCPC 0342 File No: 12-41885 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: ROBERT MICHAEL ADANAC AND JACQUELINE ADANAC CLAIMANTS AND: SANJAY K. GOEL, ASHA MANAGEMENT LTD., 2943263 CANADA INC. AND TRADEWINDS HOLDINGS INC. A PARTNERSHIP C.O.B.A. CRUISE CONNECTIONS CANADA, AND CRUISE CONNECTIONS CANADA AND WESTMARK HOTELS OF CANADA LTD., C.O.B.A. HOLLAND AMERICA LINE AND HOLLAND AMERICA LINE DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP DONALD YULE Appearing on their own behalf: Robert & Jacqueline Adanac Appearing for Defendant, Cruise Connections Canada: John Brand

Counsel for Holland America Line : Danielle Bryant Place of Hearing: Vancouver , B.C. Date of Hearing: September 25, 2013 Date of Judgment: October 16, 2013 Introduction [ 1 ] The Claimants seek to recover from the Defendants the sum of $2,368.86 (plus Court filing fees) being their costs of a 7-day Alaska cruise on the Holland America Line vessel, The Zuiderdam , from July 28, 2012 until August 3, 2012.

They seek a refund of these monies on the basis that the accommodation that was represented to them they would have at the time of booking was not the accommodation assigned to them upon embarkation. [ 2 ] Prior to the commencement of the hearing of this matter, the Claimants had applied in June, 2013 for Default Judgment against some of the partners carrying on business as Cruise Connections Canada. No order was made and the application contains a note that a hearing is required because the claim is not for a debt. The Notice of Claim was issued on November 1, 2012.

On November 13, 2012, a Reply was filed from Sanjay K. Goel c.o.b.a. Cruise Connections Canada and Cruise Connections Canada. It appears that no separate Reply was filed by or for Tradewinds Holdings Inc., 2943263 Canada Inc., or Asha Management Ltd. The Claimants’ Trial Statement was filed August 30, 2013. A Trial Statement was filed September 11, 2013 by Mr. Brand, described as National Sales Manager, Cruise Connections Canada on behalf of Asha Management Ltd., Cruise Connections Canada, 2943263 Canada Inc., and Sanjay K. Goel.

When the matter of the attempted Default Judgment was raised at the very end of the hearing, Mr. Brand indicated that by filing a Reply for Cruise Connections Canada, he thought that was a sufficient response for the partnership and intended his Reply to be on behalf of all the Cruise Connections Canada Defendants. I accept that explanation. I do not think there was any intent by the other partners to ignore the claim or allow it to go unchallenged.

If necessary, I would permit an amendment to the description of those for whom the November 13, 2012 Reply and the September 11, 2013 Trial Statement was filed to include all of the partners c.o.b.a. Cruise Connections Canada. Background Circumstances [ 3 ] The Claimants responded in early July 2012 to an advertisement in the Vancouver Sun Newspaper from Cruise Connections Canada regarding the Alaska cruise departing on July 28, 2012. They dealt with Mr. McCoy at Cruise Connections Canada. The Claimants were booked into a category VH Veranda type stateroom under Holland America Line’s “guarantee” program.

The cost of the cabin fare was $2,251.02. The guarantee was that, although they would not be assigned a stateroom in any lower category, they might be upgraded to a higher category stateroom, if all the staterooms in the VH category were full. The booking was made on July 5, 2012 and payment in full was required and paid on July 6, 2012. The Adanacs viewed advertising by Holland America Line for the typical stateroom in the VH category.

The features which were attractive to them were a bathtub, a sofa for two persons, a small coffee table and a television screen mounted opposite the sofa for viewing. [ 4 ] On arrival at the ship, the Claimants were upgraded two levels to a stateroom in the VB category. This stateroom was two levels higher up in the ship, near the front, close to elevators, and slightly larger in overall size. It was also stateroom designed for persons with physical disabilities. It did not contain a bathtub, but rather a shower with curtain only and a fold down seat. It did not contain any sofa or coffee table.

It contained a single chair facing a TV screen mounted on a wall at the opposite end of the stateroom. According to the evidence, there are approximately 25 staterooms for persons with disabilities out of the total of 1,000 staterooms on board. [ 5 ] The Adanacs complained about the assigned accommodation which was unsatisfactory to them a short time after boarding. The ship was fully occupied. A gesture was made part way through the voyage of a “swap” of staterooms with another passenger but it came to nothing.

The ship’s passenger relations person was sympathetic to their plight but in answer to her question as to what could be done to make the Claimants happy, Mr. Adanac responded with words to the effect “fly us home at your expense and refund our money.” Upon the completion of the voyage the Claimants contacted the Holland America Line representative in Seattle, Washington and Cruise Connections Canada and eventually wrote a letter to the president of Holland America Line. The response from Holland America Line was one of regret and the offer of a modest credit on a future Holland America Line cruise.

Position of the Defendants [ 6 ] Holland America Lines’ position is that it was contractually entitled to assign the Claimants to the stateroom that it did and because the ship was full, they could not accommodate the Claimants’ requests for a change of stateroom. The Affidavit of Gloria Teves (Holland American Lines Trial Statement, Tab 2) sets out at Tab “C” the Cruise Contract, and at Tab “B” the online checking process whereby passengers accept the terms of the Cruise Contract.

The Cruise Contract provides inter alia that it “supersedes all other oral implied or written agreements communications or representations.” It also provides under

Section A-General Provisions,

Section 2 – Providing Cruise, CruiseTour, Land Trips and Air Package that “this contract is valid only for the Cruise or CruiseTour and for the stateroom specified in this contract or assigned by us.” At Tab “E” of the Trial Statement of Holland America Line is a printed copy of the e-brochure from Holland America Line website during July, 2012. At page 114, a page headed “Details, Details” there is a reference to an upgrade policy as follows:

Holland America Line reserves the right to upgrade guest or guests to more expensive category accommodations at no additional costs. [ 7 ] The “guarantee” program permitted Holland America Line to assign the passenger to any stateroom on the ship in the category selected. If a passenger wished to be assured of a specific stateroom, they were able to do so at the time of booking, but the cost of doing so in the VH category chosen by the Claimants would have been more than $3,000.00 per person . There are some staterooms for persons with disabilities in the VH category.

The fact then is that unbeknownst to the Claimants they could have been assigned to a stateroom for a physically disabled person in the VH category that they had selected, without being involved in any upgrade at all. [ 8 ] The position of Cruise Connections Canada is that it did nothing wrong. At the time Mr. Adanac responded to the newspaper ad, there were three staterooms still available in the guarantee category. Mr. Adanac’s telephone call was apparently recorded and a partial transcript is reproduced in Cruise Connections Canada’s Trial Statement in which Mr.

McCoy was explaining the “guarantee” system: There are three cabins in guarantee that means you do not get to select a cabin number, however you are entitled to an upgrade. So what they do is they will sell an entire category out and they will sell three guarantee cabins in the same category at the same price. That means that if somebody cancels in the cabins that have already been assigned, they will put you in one of those cabins but if nobody cancels, they will bump you up to the next category… you cannot go down in category.

You could potentially get a better balcony cabin but you have no control over where they put you. That is why the price is so good. You are guaranteed to get a least a VH category, so you know the location but if they upgrade you, you are going to get a better cabin. [ 9 ] Mr. McCoy gave evidence that in his experience as a travel agent this is the first time a client has been dissatisfied with placement into a stateroom designed for a person with disabilities. Some clients have indeed requested such staterooms because they are larger.

Some cruise lines now apparently require proof of disability before such a stateroom will be assigned. Discussion and Analysis [ 10 ] The claim against Holland America Line is that the Claimants’ either booked a basic balcony (VH) class stateroom with a particular configuration that they were not given or else the stateroom that they purchased was misrepresented as having a particular configuration. In my view the Claimants did not purchase a stateroom with a particular configuration. I reach this conclusion for two reasons.

First, because of the “guarantee” program, they were aware that they were not purchasing any specific stateroom in the VH class and were susceptible to an upgrade to a different class with an unknown configuration. The Claimants’ Trial Statement asserts that after their telephone conversation with Mr. McCoy they accessed The Zuiderdam’s deck plans and the balcony (verandah) basic staterooms on the Holland America Line website. While the stateroom’s configuration was important to the Claimants, Mr. Adanac agreed in his evidence that he did not discuss with Mr.

McCoy the importance of the configuration to the Claimants. There is no particular reason why he should have done so, as he was unaware of the slight risk of being assigned a stateroom suitable for a person with disabilities in either the VH class or any upgraded class. Exhibit ‘E’ in the Holland America Line Trial Statement which is their 2012 brochure at page 99 of the Trial Statement shows configurations of veranda class staterooms.

At the bottom of the page is a note stating: Room measurements are approximate and some rooms in the same category may vary in size and/or have different furniture placement and furnishings from that pictured. [ 11 ] At page 100 of the Holland America Line Trial Statement which sets out deck plans, there are identified a list of specific staterooms described as “wheelchair accessible, roll in shower only.” The Cruise Contract (Tab ‘C’ in the Holland America Line Trial Statement) permits Holland America Line to assign staterooms not specifically purchased.

For the foregoing reasons I conclude that the Claimants did not purchase a stateroom with a particular configuration and that Holland America Line was entitled to assign the Claimants to the stateroom they were given. [ 12 ] The next question is whether Holland America Line misrepresented the configuration of the stateroom purchased. I do not think they did for two reasons.

First, the first paragraph of the Cruise Contract provides that the contract “contains all terms of our agreement and supersedes all other oral implied or written agreements, communications or representations.” To the extent that the stateroom configurations shown in the Holland America Line brochure constituted a written representation, it is displaced by the terms of the Cruise Contract which contains no equivalent provisions. Second, as previously noted, the configurations pictured in the brochure are subject to the qualification that there may be differences in the room measurements, size and furnishings.

Accordingly, I conclude that there was no legally enforceable representation that the stateroom to be assigned to the Claimants would have a particular configuration. [ 13 ] The next question is whether the Claimants have a valid claim against Cruise Connections Canada. The Notice of Claim does not clearly articulate a cause of action against Cruise Connections Canada and the Statement of Facts in the Claimants’ Trial Statement is also more a recitation of facts than an articulation of a cause of action. In his evidence, Mr. Adanac however said that he thought Mr.

McCoy either intentionally or negligently withheld information about the risk of being assigned to a stateroom for a person with physical disabilities. I will therefore address the question as to whether Mr. McCoy breached any duty in what he did or did not tell the Claimants about the booking they were making. Mr. McCoy’s evidence is that he was aware of the possibility that the Claimants, by participating in the “guarantee” program, might be assigned a stateroom for a person with physical disabilities in either their selected VH category or

in a higher category, if upgraded. He did not alert the Claimants to this possibility. The risk of such an assignment was very small as there were only about 25 staterooms for persons with physical disabilities out of 1,000 staterooms on the vessel. Moreover, because the staterooms for persons with physical disabilities were larger than other staterooms in the same category, Mr. McCoy had never previously experienced a client unexpectedly assigned to or upgraded to such a stateroom who was dissatisfied with the assigned stateroom.

In his experience, some clients who are not physically disabled have requested such staterooms because of their larger size. Finally, although the configuration of the stateroom was important to the Claimants, they did not convey this information to Mr. McCoy. Thus Mr. McCoy had no basis for thinking that the Claimants would not accept such an assignment and thus no reason to discuss the risk of it occurring and alternative options. I reject the suggestion that Mr. McCoy deliberately withheld information about staterooms for the physically disabled. To conclude that Mr.

McCoy was negligent in withholding such information requires in these circumstances expert evidence regarding the standard of care reasonably expected of a travel agent in Mr. McCoy’s position. There is no such evidence in this case, and based on the facts established in the evidence in this case, I find that there was no negligence on the part of Mr. McCoy or Cruise Connections Canada. [ 14 ] I understand the frustration and dissatisfaction of the Claimants with the assignment of their stateroom. It did not suit their particular entirely legitimate needs.

I accept that it ruined for them what was expected to be a happy celebration of their 50 th wedding anniversary. The risk of such an assignment was small and random. Their plight was exacerbated by the fact that the ship was fully booked and no other accommodation could be provided. The Claimants’ expectations of stateroom configuration were understandable but not guaranteed.

An explicit reference in the description of the “guarantee” program to the possibility of an assignment to a room for persons with physical disabilities would presumably have averted the distress and inconvenience caused to all parties in this dispute. [ 15 ] However, for the reasons set out previously in this decision, the fact that the understandable expectations of Claimants were not met does not mean that the Defendants were legally liable to compensate for the failure. The Claimants’ claim is dismissed. There will be no costs to any party in the circumstances. [ 16 ] Judgment accordingly. Donald W.

Yule, Q.C. Justice of the Peace