2011 QCCQ 4210, 2011 QCCQ 4210

Licursi c.

Tic Travel Insurance Coordinators Ltd. 2011 QCCQ 4210 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-121576-104 DATE: April 11, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ ANTOINETTE TANIA LICURSI , personally and as mandatory for her husband Nicola De Fronzo and her minor son Alessio De Fronzo […] Laval Québec […] -and- NICOLA DI FRONZO represented by his wife Antoinette Tania Licursi -and- ALESSIO DI FRONZO represented by his mother Antoinette Tania Licursi (same address) Plaintiffs v.

TIC TRAVEL INSURANCE COORDINATORS LTD. 2000 McGill College Ave., suite 800 Montréal Québec H3A 3H3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Antoinette Tania Licursi, acting on her own behalf and on behalf of her husband Nicola Di Fronzo, and her minor son Alessio Di Fronzo, is suing TIC Travel Insurance Coordinators Ltd. for the amended amount of $1,967.74, after its refusal to reimburse her the amount paid for a vacation package, which she cancelled in accordance with her physician’s instructions.

The evidence: [ 2 ] Plaintiff bought a vacation package from Air Canada Vacations on August 5, 2009 for a trip to Jamaica with her husband and son for $2,387.56. The price she paid included cancellation insurance; TIC Insurance is the insurer. [ 3 ] On August 10, 2009, Plaintiff learned from her doctor that she was pregnant. Her physician, Dr.

Janet Shinder, who had treated Plaintiff prior to and during Plaintiff's first pregnancy, considered air travel for Plaintiff dangerous, and instructed her not to fly, since she presented a high-risk pregnancy. [ 4 ] Based on her physician's instructions, Plaintiff cancelled the family's trip and sought a refund from Defendant.

[ 5 ] Defendant refused to reimburse Plaintiff. First it claimed her decision to cancel the trip was elective.

It wrote: “There is no indication that the cancellation of the trip relates to any medical condition, other than the fact that she had difficulty conceiving and her physician advised her not to travel as a precautionary measure.” [ 6 ] Defendant subsequently claimed that the basic travel cancellation insurance only covers such matters as “an Emergency Sickness or Injury or Your death, and/or that of an Immediate family member, Traveling companion, business partner or their Immediate Family, or the host at the trip destination.” Since Defendant considered that Plaintiff was not sick or ill, as defined in its policy, it advised her that she was not entitled to a refund. [ 7 ] Defendant submits the coverage, contained in its policy, was available on its website.

Plaintiff claimed it was only after she booked the family vacation that she was informed of the Internet link to obtain details regarding her insurance. When she purchased the insurance, no restrictions were mentioned. [ 8 ] Plaintiff appealed the decision. Defendant's Appeals committee rejected her appeal. Analysis: [ 9 ] Plaintiff seeks reimbursement of funds paid for her trip, which she cancelled on her physician's instructions, in light of her high-risk pregnancy.

Defendant refused to pay her, invoking the terms of its policy, which amongst other items limits coverage to an emergency, sickness or injury. [ 10 ] Plaintiff's contract with TIC is a contract of adhesion. According to the rules of

interpretation, the common intention of the parties rather than adherence to the literal meaning of the words is to be sought in interpreting a contract. [ 11 ] In addition, according to

article 1432 of the Civil code of Quebec , in the case of doubt, a contract is interpreted in favour of the person who contracted the obligation and against the person who stipulated it. In all cases, it is interpreted in favour of the adhering party or the consumer. [ 12 ] The purpose of cancellation insurance is to enable the consumer to obtain a refund if he is unable to travel, for reasons beyond his control.

The travel insurance policy foresees that it is designed to cover losses arising from unforeseeable circumstances. [ 13 ] In the present case, “Sickness” is defined in the policy as “ illness or disease ”. The Oxford Dictionary defines illness as “ a disease, ailment or malady ” . The same dictionary defines the word “malady” “as something requiring a remedy ” . [ 14 ] Therefore, the question is whether Plaintiff's condition comes within any of the foregoing

definitions. [ 15 ] Pregnancy in itself is not a disease. However, Plaintiff's pregnancy was not normal. Rather it was labeled as a high risk by Plaintiff's physician, who instructed her patient (namely the Plaintiff) not to fly. [ 16 ] Plaintiff was unaware of her pregnancy when she booked her trip. She did not choose to cancel her trip nor did she cancel for frivolous reasons but did so based on a medical condition. The Court considers that Plaintiff's situation was one requiring a remedy, namely that of care in order to assure that Plaintiff did not miscarriage. [ 17 ] In light of the rules of

interpretation, the Court concludes that Plaintiff's situation falls within the protection provided by her insurance contract. She is entitled to be reimbursed the amount that is not refundable by Air Canada Vacations. [ 18 ] Plaintiff paid $2,387.56 for her trip, which included the sum of $144 (116 + 28) for the insurance. The cost of insurance is payable by Plaintiff even in the case of reimbursement. She was reimbursed $539.82 from Air Canada Vacations. Therefore the amount of her loss comes to $1,703.74. She is also claiming $120, which she paid for her medical certificates. The Court also grants this amount.

The total reimbursement comes to $1,823.74. FOR THE FOLLOWING REASONS, THE COURT: GRANTS , in part, Plaintiff's action; CONDEMNS Defendant, TIC Travel Insurance Coordinators Ltd., to pay Plaintiffs, Antoinette Tania Licursi, Nicola Di Fronzo and Alessio Di Fronzo, the sum of $1,823.74 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec since September 17, 2009 plus judicial fees of $99.

__________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: March 7, 2011