2016 QCCQ 2901, 2016 QCCQ 2901

Migliara c. Sunwing Vacations Inc. (Signature Vacations) 2016 QCCQ 2901 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-146749-157 DATE: April 7, 2016 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ SALVATORE MIGLIARA -and- CATY CORDEIRO Plaintiffs v.

SUNWING VACATIONS INC., carrying on business under the registered trade name of SIGNATURE VACATIONS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Salvatore Migliara and Caty Cordeiro sue Sunwing Vacations Inc. (“ Sunwing ”), carrying on business under the registered trade name of Signature Vacations for refund of amounts paid, namely $3,834, for a vacation (all inclusive hotel resort) to Puerto Plata in the Dominican Republic.

Questions in Issue 1) Did Sunwing breach its contract of service of hotel and food to Salvatore Migliara and Caty Cordeiro? 2) If so, what are the damages to which Salvatore Migliara and Caty Cordeiro are entitled as a result of that breach? Context [ 2 ] In August 2014, Salvatore Migliara and Caty Cordeiro booked online a stay of 3 weeks from January 1, 2015 to February 1, 2015 through Sunwing at the Hotel Playa Dorada by Celuisma, in Puerto Plata in the Dominican Republic [1] .

This was an all inclusive stay (lodging and food) and did not include air fare. [ 3 ] In the Sunwing catalogue, this hotel is noted as a three star “Plus” hotel [2] . [ 4 ] Salvatore Migliara and Caty Cordeiro are experienced travelers for vacations in the South and have visited the Caribbean and Mexico destinations on several occasions. They did the research and chose the lowest priced hotel offered by Sunwing in Puerto Plata.

Salvatore Migliara and Caty Cordeiro have two young children (at the time 3 years and 9 months of age) and were attracted by the feature that there was no charge for the children at this hotel. The total cost was $1,886 (CAD). In their research, they had also checked out the nearby Barcelo Puerto Plata, also a Sunwing facility. It was also a three star facility but did not have the “Plus” designation. However, the Barcelo resort was more expensive and children above 2 years of age did not stay for free. The cost to stay at the Barcelo

would have been approximately 62% more, namely $3,044 (CAD) (including $1,024 for the older child) [3] . [ 5 ] Upon arrival, after checking in, and using briefly the facilities, Salvatore Migliara and Caty Cordeiro were disappointed with their room and the facilities. They had the following complaints which occurred over two days: (

a) There was no hot water. Salvatore Migliara and Caty Cordeiro state that their children, including their 9 month daughter had to have showers in cold water. They said that they made many complaints but over the two day period, the hotel authorities could not fix the problem as they were on an upper floor. However, Plaintiffs did not explain why they could not arrange for a small basin and fill it with partially cold and partially hot water from a kettle; (

b) The lock on the patio door did not work and they were concerned and worried for the safekeeping of their belongings; (

c) Nails in the stairwell wooden steps came up and they concluded that this was not safe for their children. The hotel tried but failed to fix the problem; (

d) The bed sheets were not clean. The first set had several black hairs in them and the replacement set had some yellow stains and blotches; (

e) There was mildew in the bathroom and a mildew smell in the room. In fact, the whole floor of the building in which their room was located had a mildew smell; (

f) The bathroom sink was repeatedly blocked, even after repair by the staff; (

g) The room refrigerator was leaking and was occasionally not working. This was a major inconvenience since the Plaintiffs needed a refrigerator to keep their baby food for their infant of 9 months. [ 6 ] These various complaints are supported by photos taken by the Plaintiffs [4] . [ 7 ] The hotel authorities were unable to provide another room to them. When Salvatore Migliara and Caty Cordeiro called Sunwing in Toronto, they were told that there was nothing that could be done except to change hotels and pay the full cost a second time.

On the second day of their stay, the Sunwing representative at the hotel told the Plaintiffs that he could book a room for them at the nearby Barcelo resort for $1,968 (CAD). The Plaintiffs decided to do so. They then switched hotels and stayed at the Barcelo until February 1, 2015. [ 8 ] Upon their return, Plaintiffs wrote to the Defendants claiming refund of $3,834 being the total of the cost of the original booking ($1,886) and the second booking ($1,948) [5] . [ 9 ] Sunwing's representative pleaded that Plaintiffs chose the lowest cost product offered by it in Puerto Plata.

Defendant also states that Plaintiffs accepted their conditions of sale which indicated as follows [6] : “Hébergement: Veuillez noter que bien que les conditions de vie que vous rencontrerez seront fort probablement différentes et inférieures à celles auxquelles vous êtes habitués, particulièrement en ce qui concerne l’électricité, l’alimentation en eau et les commodités des salles de toilettes, le personnel de Sunwing et/ou agents ont inspecté tous les hôtels décrits dans cette brochure afin de s’assurer que les normes de qualité soient acceptables. » [ 10 ] Sunwing also pleads that Plaintiffs decided to stay at a higher price resort than they originally chose and are not entitled to claim damages which would constitute an upgrade or enhancement charge for their stay.

[ 11 ] In their initial letter of reply, and before Plaintiffs instituted legal proceedings, Sunwing states that, apart from the complaints, the resort was satisfactory. Sunwing objected that the damages claimed are, in any event, grossly exaggerated. Sunwing offered no compensation at that time [7] . [ 12 ] After legal proceedings were instituted, Sunwing offered some compensation and both parties invoke before the Court those discussions in support of their position [8] .

Analysis and Decision 1) Did Sunwing breach its contract of service of hotel and food to Salvatore Migliara and Caty Cordeiro? [ 13 ] While a purchaser of accommodations having a three (3) star designation in the Caribbean should not expect a high level of service, the service provider must comply with certain basic standards. [ 14 ] In the Court’s view, the complaints and the problems proven in points (a), (

b) and (

d) constituted a breach of Sunwing’s obligations pursuant to the terms of the contract as evidence by the description given of the hotel [9] in its catalogue. This was a violation of

Article 2100 of the Civil Code of Quebec and Articles 40 and 41 of the Consumer Protection Act [10] . These articles state as follows: 2100. The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence. Depending on the nature of the work to be carried out or the service to be supplied, they are also bound to act in accordance with usage and good practice and, where applicable, to ensure that the work carried out or service supplied is in conformity with the contract.

Where they are bound to an obligation of result, they may not be relieved from their liability except by proving superior force. 40. The goods or services provided must conform to the description made of them in the contract. 41. The goods or services provided must conform to the statements or advertisements regarding them made by the merchant or the manufacturer. The statements or advertisements are binding on that merchant or that manufacturer. [ 15 ] The Hotel Playa Dorada by Celuisma is promoted specifically as a resort for families with young children.

It is not acceptable that there be no hot water, a secure lock and clean sheets. [ 16 ] The Court notes that the advertisement did not mention an inroom fridge, so the Plaintiffs cannot complain regarding its defective operation. Regarding the other complaints, including mildew, and the sensitivity of Plaintiffs' child in this regard because of his asthma, the Court is of the view that these issues are more common and foreseeable.

Had the Plaintiffs wanted an allergy-free environment, they should have discussed this with Sunwing before booking their accommodations. 2) If so, what are the damages to which Salvatore Migliara and Caty Cordeiro are entitled as a result of that breach? [ 17 ] For the original booking at the Hotel Playa Dorada, the Plaintiffs did not receive any benefit for their payment. During the first two days, the accommodations were completely unsatisfactory. For the remaining days, Plaintiffs had left and did not use the accommodations nor benefit therefrom.

Accordingly, the Court will grant Plaintiffs a full refund of the cost paid for those accommodations (hotel and food), namely $1,886.

[ 18 ] With regard to the claim for a refund for the charge for the Barcelo resort of $1,948, there appears to be no ground to grant it. This charge is for the 19 remaining days only. The stay and accommodations were entirely to the satisfaction of Salvatore Migliara and Caty Cordeiro.

They could have stayed at a lower cost resort of other brands at Puerto Plata but they chose to upgrade and they knew before that the standard of the accommodations and services would be higher since they had already verified that and were aware of the substantial additional cost of approximately $1,200. [ 19 ] The Court cannot grant the requested refund of the stay at the Barcelo since this would have the effect of having the entire cost of lodging and food be free of charge to Plaintiffs, which would be clearly unreasonable. [ 20 ] Furthermore, Salvatore Migliara and Caty Cordeiro appear to have received in fact a 30% discount from the initial quote ($3,044) to stay at the Barcelo ($1,948, or $2,150.04 in light of the adjustment for two (2) missing days), which was an upgrade over their previous hotel.

FOR THESE REASONS, THE COURT: GRANTS in part Salvatore Migliara and Caty Cordeiro's judicial demand; CONDEMNS Sunwing Vacations Inc. to pay Salvatore Migliara and Caty Cordeiro the amount of $1,886, with legal interest of 5% per year, plus the additional indemnity provided at

Article 1619 of the Civil Code of Quebec , from the demand letter dated March 16, 2015 (Exhibit P-5); WITH JUDICIAL COSTS of $138 (Court Stamp) in favour of Salvatore Migliara and Caty Cordeiro. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: March 14, 2016