2016 QCCQ 11490, 2016 QCCQ 11490

Harroch c. Société en commandite Touram (Air Canada Vacation) 2016 QCCQ 11490 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-147386-157 DATE: October 5, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ ALBERT HARROCH […] Montréal (Québec) […] and MARIA PIAZZA […] Montréal (Québec) […] Plaintiffs v. SOCIÉTÉ EN COMMANDITE TOURAM, f.a.s.n.

Air Canada Vacation 600-1440, Ste-Catherine West Montréal (Québec) H3G 1R8 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ PARTIES AND PROCEEDINGS [ 1 ] The Plaintiffs, Albert Harroch and Maria Piazza, who traveled to Cuba on an Air Canada package from November 15 to 22, 2014, sue the Defendant Société en commandite Touram (“Touram”), the wholesaler from whom they purchased the package, to recover $ 250 that they paid for a change of hotel, a taxi cost of $ 60 to get to the hotel, and $ 500 in damages for a total of $ 810. [ 2 ] They allege that they were to stay at the Breezes hotel in Varadero that they were brought to a Breezes hotel in Jibacoa, 90 kilometres away from Varadero, and incurred the extra charges in order to be relocated to the hotel that was their true destination, suffering inconvenience and the loss enjoyment of two days of their one-week vacation. [ 3 ] Touram defends the case alleging that the hotel in Jibacoa was the true destination that the couple were entitled to under the package and that the costs they incurred to be relocated to the Breezes hotel in the Varadero peninsula were to their account.

ISSUES [ 4 ] While there are some differences in the narrative given by the opposing parties, the facts are essentially not in dispute; rather it is the definition of the rights the Plaintiffs had under their contract that is in issue. [ 5 ] The Court must determine whether they had the right to stay at a hotel within the Varadero peninsula area or whether the contract permitted the tour operator to assign them to a hotel 90 kilometres away, in a locality halfway between Varadero and Havana.

FACTS [ 6 ] Mr Harroch booked the reservation for the couple on the website known as vacations.aircanada.com . [ 7 ] The brand “ Air Canada ” is used by Touram through the expression “Air Canada Vacations”. Mr Harroch testifies that he saw on the website, and he confirms this with a print-up of the screen (P-1), that he was booking “Pre-package vacation (Flight and Hotel) in

Varadero”. The hotel appears to be: Breezes Super Clubs Surprise Varadero Nov 15 - Nov 22 All inclusive Run of the House 2 adults [ 8 ] The Court has judicial notice of the geography of the area. Varadero is a long peninsula consisting essentially of beaches, on which there are numerous hotels.

The couple wanted to be in Varadero so they could play golf with friends who were staying in the vicinity; in fact there is a golf course on the peninsula very close to two hotels that are part of the Breezes brand, the Super Club Breezes Bella Costa and the Super Clubs Breezes Varadero. [ 9 ] The Plaintiffs were under the impression that they had booked at the “Super Club Breezes Varadero”. [ 10 ] When they arrived at the Airport, known as Varadero, they first tried to get on the bus for tourists who were being taken to hotels in Varadero.

Their names were not on the list and they were eventually ushered to a taxi, which took them to a hotel some 90 kilometres away, along the North Coast of Cuba, halfway to Havana. The hotel known as Jibacoa was a Breezes hotel of the same quality as the Breezes’ hotels in Varadero, but Mrs Piazza testified that she was very unhappy with the beach that was not very attractive and of course, the hotel was not near the golf course where they intended to play with their friends.

It required approximately one and a half hour by cab to get there. [ 11 ] When they were brought to the Jibacoa hotel, upon arriving at the airport late in the evening, they could not get a straight answer as to where they were being taken. [ 12 ] It was only when they arrived at the hotel that they realised they were nowhere near Varadero.

The next day, November 16, they immediately initiated attempts with the Air Canada rep. to be relocated to the Super Club Breezes Varadero and were eventually successful, thought they spent the nights of November 15-16, 16-17, and 17-18 at Jibacoa, and only arrived on November 18 in Varadero and had to pay for taxi themselves. [ 13 ] They also had to agree to pay $ 250 in order to be relocated to the other hotel. [ 14 ] The entertainment they saw when they eventually arrived in Varadero included a repetition of the shows they had seen the second and third nights in Jibacoa. [ 15 ] Apart from this disruption and redundancy in the entertainment and the loss of two days of enjoyment, the rest of the trip was to their liking. [ 16 ] They did play golf, as was evidenced by a score card. [ 17 ] The position taken by Touram is that the package that the Plaintiffs actually purchased was a contract where the wholesaler would decide to assign them to one of three hotels, and that the Jibacoa hotel was one these three.

Françoise Casciaro provided print-ups of the screens that appear on the website that Mr Harroch consulted to do his booking. [ 18 ] Under D-4, on a screen that shows a picture of sail-boats under the heading “Varadero, Cuba”, can be seen a picture of a hotel under the caption “Breezes Super Clubs Surprise”.

Under the heading “Location”, can be read three entries: • SuperClubs Breezes Varadero: 35 minutes from Varadero International Airport • SuperClubs Breezes Bella Costa: 35 minutes from Varadero International Airport • SuperClubs Breezes Jibacoa: 60 minutes from Varadero and 60 minutes away from Havana [ 19 ] At the bottom of the page can be read: Breezes Super Surprise and Breezes Super Plus Surprise are offers subject to availability using a run of the house system. Confirmation will be given within 7 days prior to arrival or at the airport.

Breezes Super Surprise offer is valid for stays at Breezes Varadero, Breezes Bella Costa (family resort) or Breezes Jibacoa for guests 14 years old and over.

Breezes Super Surprise Plus offer is valid for stays at Breezes Varadero or Breezes Jibacoa for guests 14 years old or over. [ 20 ] Mrs Casciaro’s position is that her firm provided what was promised in the contract by confirming to the Plaintiffs, at the airport, that they would be going to the Super Clubs Breezes Jibacoa. [ 21 ] Another of her exhibits, a printout of screens showing the hotels (D-3), demonstrates that if you click on a caption in the Breezes Jibacoa entry, you will see a map that shows the location of the hotel along the North Coast, approximately halfway between Havana and the Varadero Peninsula.

She is essentially saying that a consumer who looks at the website by clicking and reading carefully, can see that

one of the three hotels that is part of the Breezes Super Clubs Surprise under the heading Varadero Cuba, is in fact not in Varadero. This is apparent if you check the map for each of the three hotels.

A consumer will see that two of them are in fact very close together near the Varadero golf course, on the Varadero Peninsula, whereas the third, Jibacoa, is nowhere near that area, although it is 60 minutes away from the airport in the other direction from the airport. [ 22 ] Her position, which she supports with references to certain jurisprudence, is that the consumer has the duty to carefully educate herself about the travel package being offered.

All the necessary information was on the website. [ 23 ] Mr Harroch contests this philosophy, stating that the documents he received confirmed that he would be staying in Varadero.

The points to the confirmation document he received, shortly after he booked the trip (P-2), an itinerary document stating, under the heading Flight “Montreal to Varadero”, under the hotel heading, “Super Surprise Run of House – AI Varadero” and, under the Voucher / Bon d’échange, the hotel is stated as “Breezes Super Surprise, Varadero”. [ 24 ] From his point of view, all of the confirmation documents he received and on the basis of which he traveled, confirmed that he was reserved for a room at the Breezes hotel in Varadero.

He was under the impression that the hotel was called “the Breezes Varadero”. [ 25 ] When the Plaintiffs arrived at the airport, they were given a document (P-3), which was filed out in manuscript that designated the “Breezes Jibacoa”. The document is a pamphlet where the hotels are shown on a map illustrating the Varadero peninsula with the Atlantic Ocean to the North and Cardenas bay to the South.

There are a total of 23 hotels of which 22 are lined up along the peninsula with the “Barcelo Solymar”, number 22 at the south-western end, and the “Melia Marina Varadero”, number 1 and the Blau Privilege Cayo Libertad at the north-eastern tip. The two Super Clubs Breezes, number 16, “Super Clubs Breezes Bella Costa” and number 18, “Super Clubs Breezes Varadero”, are very close together near the Varadero golf club, closer to the south-western part of the peninsula than to the north-eastern part.

They are situated along the coast of the Atlantic Ocean. [ 26 ] The chart also indicates the 23 rd hotel, the Super Clubs Breezes Jibacoa, by the position of an arrow pointing towards Havana, with the caption “90 kilometres from Varadero” [1] . It is “off the map” so to speak. The pamphlet shows photos of Varadero and various excursions. The inclusion of the Super Clubs Breezes Jibacoa is in the pamphlet is an attempt to make it look like a part of Varadero, which obviously is not.

ANALYSIS [ 27 ] The Court agrees that consumers do have a duty to attempt to inform themselves of what they are getting into in any contractual situation. But, the present matter is clearly a case that falls under sections 40 , 41 and 42 of the Consumer Protection Act [2] : [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. [42] A written or verbal statement by the representative of a merchant or of a manufacturer respecting goods or services is binding on that merchant or manufacturer. [ 28 ] A consumer that is not an expert in the travel field and not skilled in using websites is vulnerable to misleading statements made in advertising and, in this case, the use of the expression “Varadero” is misleading to describe a hotel to which they could be possibly assigned, which is an hour away from Varadero airport in the opposite direction from the Varadero peninsula. [ 29 ] Jibacoa, whatever its merits as a destination and although it can be considered to be in the general vicinity of the Varadero airport, can in no way be considered part of Varadero as a tourist destination, no more than the City of Havana, which you can also get to from the Varadero airport, could be considered as part of the Varadero destination. [ 30 ] While it would be possible for a consumer, familiar with the use of maps on a website and able to manipulate Google maps, to ascertain the location of practically any hotel on the face of the earth, Mr Harroch was misled into believing that he was booking a vacation in Varadero, which is a very distinct region of Cuba, consisting of a prominent peninsula. [ 31 ] Mrs Casciaro made the argument that Varadero is in fact an airport, not a tourist location and that the consumer must understand that when he books a flight to Varadero, he is not necessary going to Varadero, he may be going to a number of different places in the general vicinity of the airport.

While this argument is attractive, the document that the Plaintiffs received by way of confirmation, which the website indicated would establish the hotel chosen for them, shows the hotel has being a Breezes hotel in Varadero. Applying the contract in one possible

interpretation: the clients were in fact assigned to the hotel in Varadero, as appears in the voucher. Sending them to Jibacoa, was therefore not the correct fulfillment of the contract. It contradicted the first assignment. [ 32 ] This would be an answer to the case under

section 40 of the Consumer Protection Act . Under

section 41, the statements and advertisements, which are on the website and binding on the merchant, led the consumer to believe that he was booking a hotel package in the region known as Varadero. Applying that article, the case must also be resolved in favour of the consumers. [ 33 ] The Court also learned through the hearing that Jibacoa is no longer part of the Breezes package, which suggests that it is not a popular component of the “Surprise”, but this is not the determining factor in the case.

Rather, it is the very distinct impression that the website and the confirmation documents gave that the hotel booked through the Breezes Super Surprise is, in fact, a hotel in Varadero, such as the Super Club Breezes Varadero. [ 34 ] The Court finds that the extra charge the Plaintiffs were forced to incur to relocate to that hotel, as well as the cost of the taxi, are clearly a direct prejudice caused by the Defendant’s failure to comply with the Consumer Protection Act .

[ 35 ] They also claim $ 500 e.g., $ 250 each, for the inconvenience associated with being shuttled back and forth, approximately three hours of travel, and the loss of the peace and expected enjoyment of their vacation for three out of seven days. [ 36 ] The Court is sensitive to the argument that the hotel parts of the package, when taking into account the cost of the flight, was only $ 750 that is to say $ 1,050 minus the $ 300 reduction because of an early-reservation discount. [ 37 ] Using that calculation, an amount of $ 500 in damages is actually equivalent to approximately 40% of the value of the hotel before discount, while the Plaintiffs did in fact sleep at a hotel and only lost out on certain aspects of their enjoyment, not the comfort of an adequate hotel per se. [ 38 ] What the Plaintiffs are claiming however is not the cash value of the hotel stay, as discounted for three nights, because it was the wrong hotel, they are claiming the moral damages associated with the frustration, the loss of time and energy and the general disappointment of the whole experience, which took away considerably from the enjoyment value of the vacation, whatever its price may have been.

This is somewhat intangible and cannot be equated mathematically to 3/7 of the price of the hotel, or to a certain percentage of the overall cost of the package. [ 39 ] The Court finds that an amount of $ 250 for each guest is not unreasonable for the trouble they were put through and the manner in which they were treated by the representatives who were not forthcoming with them and did not spell out, at the first opportunity, what was taking place. [ 40 ] It seems that the representative was hoping that they would accept the hotel where they were, and their relocation did not occur in a manner that was susceptible to avoid needless travel delay and upset, e.g. directly from the airport. [ 41 ] For that reason, the Court finds that the amount claim is reasonable.

BY THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiffs the sum of $ 810, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from November 28, 2014; CONDEMNS the Defendant to pay judicial costs equal to court stamp in the amount of $ 75.25 to the Plaintiffs. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 6, 2016