2015 QCCQ 1778, 2015 QCCQ 1778

Flessas c. Carlson Wagonlit Voyages JQ0059 2015 QCCQ 1778 COURT OF QUEBEC «Small Claims Division»

CANADA PROVINCE OF QUEBEC DISTRICT OF DISTRICT OF TOWN OF TOWN OF Civil Division N° : 500-32-134813-122 DATE : February 24, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ AFRODITI FLESSAS Plaintiff vs CARLSON WAGONLIT VOYAGES and SUNWING.CA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff claims the reimbursement of her two-week vacation to Costa Rica, plus damages, because of the presence of red tide.

THE FACTS [ 2 ] Plaintiff and her husband, Konstadinos Flessas bought from the Defendant, Carlson Wagonlit Voyages ( Carlson ) a two-week vacation at the Riu Guanacaste, Costa Rica, a five star hotel, at the cost of $6,147.28 [1] , during the period of March 26 to April 9, 2012. [ 3 ] When the Plaintiff and her husband arrived at the hotel, a Sunwing representative told them they could not swim in the ocean because of the presence of red tide, which is a known condition of the sea in this area.

Algae releases toxin causing the mortality of fish, birds and other organisms. [ 4 ] The Plaintiff provides pictures of the beach [2] showing dead fishes on the beach, which released a fowl smell. [ 5 ] Because of this, the Plaintiff states that she and her husband could only use the pool, which was overcrowded. [ 6 ] The Defendants could not relocate the Plaintiff to another hotel, and the only offer was to transport them to Tamarindo beach, one and a half hour drive away, where the Plaintiff could swim at a cost of $25 per person.

Plaintiff went once, but because of the time required to travel, she did not return. [ 7 ] Both Defendants acknowledge that red tide does occur in this area, which can last three day, three weeks or three months.

Both Defendants state that they were not informed before Plaintiff’s departure of the occurrence of the red tide. [ 8 ] On April 20, 2012, the Plaintiff sent a demand letter [3] , however, it is only in her demand letter of July 2 nd , 2012 [4] , that the Plaintiff asked for a two-week vacation voucher, equivalent to a trip to Costa Rica, or a full reimbursement. [ 9 ] In its replies of June 6 th and August 14 th , 2012, Sunwing offered a voucher of $200 each, which it later increased to $250 each. It did not renew this offer at trial

THE ANALYSIS [ 10 ] In its Defense, Carlson states the red tide only appeared at the end of March, after the Plaintiff had left for her vacation, and it was never told of the presence of red tide beforehand. [ 11 ] As for Sunwing, it states that it is only the day after Plaintiff arrived in Costa Rica that its representative was informed of the presence of red tide, it was impossible to learn of this beforehand. [ 12 ] Sunwing provides the Court with several extracts of website where guests comment on hotels, resorts, beaches, etc., such as Tripadvisor [5] , Routard, Monarc, VirtualTourist, etc. [6] .

Some reviews by guests staying at the same hotel do comment on the presence of red tide, but many guests stayed at the same hotel as Plaintiff during the same period, and they make no mention of this problem. [ 13 ] The presence of red tide certainly caused an inconvenience to the Plaintiff and her husband and a disappointment for not being able to swim in the ocean. [ 14 ] However, although it is a known occurrence in this area, it is impossible to foresee when the problem will occur and how long it will last. [ 15 ] The Court considers this event as a superior force which consists of an unforeseeable and irresistible event as defined at

article 1470 of the Civil Code of Quebec . It provides a complete defense to the debtor. FOR THESE REASONS, THE COURT : DISMISS the Plaintiff’s action; WITH COSTS , in the amount of $199, representing the judicial stamp of the contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing: November 17, 2014