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Travel Industry Act, 2002

ONTARIO REGULATION 26/05

General

Consolidation Period: From July 1, 2016 to the e-Laws currency date.

Last amendment: O. Reg. 170/16.

This is the English version of a bilingual regulation.

CONTENTS

PART I
GENERAL

1.

Definitions

2.

Exemptions

PART II
REGISTRATION

Applications and Renewals

3.

Application, form and fee

4.

Expiry of registration

5.

Prescribed requirements for registration or renewal

6.

Prescribed conditions, continuation pending renewal

7.

Prescribed time to reapply after refusal, etc.

Obligations of Registrants

8.

Individual registrant, prescribed condition

9.

Name

10.

Place of business

11.

Branch office

12.

Sale of travel services by travel agent

13.

Certificate of registration

15.

Employees and contractors

16.

Records re employees and contractors

17.

Advance notice to registrar re certain changes

18.

Notice to registrar re other changes

18.1

Notice of ceasing to sell travel services

19.

Information in approved form

20.

Unregistered travel agent or travel wholesaler

21.

Notice of ceasing to trade with registrant

22.

Financial statements

24.

Minimum working capital

25.

Security, new applicant

26.

Bank accounts

26.1

Interpretation

27.

Trust accounts

28.

Security instead of trust account

29.

Business records

30.

Application of ss. 31-37

31.

Requirements relating to representations

32.

False, misleading and deceptive representations

33.

Statements re price

34.

Information to be included in certain representations

35.

Photographs and other pictures

36.

Duty of travel agent, disclosure and advice

37.

Advising customer of changes

38.

Statements, invoices and receipts

39.

Verifying condition of accommodation

40.

Events requiring notice and offer of refund or replacement

41.

Travel wholesaler to forward documents to travel agent

42.

Travel agent to verify documents

43.

Travel wholesaler required to provide travel services in certain circumstances

44.

Disclosure of counselling fee or service charge

45.

Restrictions, resale of travel services

46.

Duty of registrant who resells travel services

47.

Restriction re air transportation

Other Matters

48.

Disclosure of information on registrants

49.

False advertising order, prescribed period for pre-approval

PART III
FUND

General

50.

Participation mandatory

51.

Role of board

52.

Fund

55.

Board to notify registrar of default, etc.

Claims

56.

Board to deal with claims

57.

Reimbursement of customer

57.1

Reimbursement of customer for trip completion

58.

Reimbursement of travel agent

58.1

Reimbursement of travel agent for trip completion

59.

Reimbursement of travel wholesaler

60.

Time for claim

61.

Documents and other information

62.

Subrogation

63.

Credit arrangements, no reimbursement

64.

Commissions and other remuneration repayable by registrant

65.

Major event

66.

Maximum amounts for payments from Fund

67.

Reimbursement for claims under ss. 57, 57.1, 58, 58.1 and 59

68.

Payments for immediate departure

69.

Payments for trip completion, etc.

70.

Registrant liable to reimburse Fund for certain payments

71.

Hearing by Tribunal

Administration of Fund

72.

Borrowing and investment powers

73.

Advisors

73.1

Educational expenses

74.

Records, etc. available to director

75.

Audit

 

PART I
GENERAL

Definitions

1. In this Regulation,

“accommodation” means any room that is to be used for lodging by the customer or other person for whom the travel services were purchased, and includes any other facilities and services related to the room that are for the use of the customer or other person, but does not include meals; (“hébergement”)

“board of directors” means the board of directors of the administrative authority; (“conseil d’administration”)

“major event” means one or more events designated as a major event by the director under section 65; (“événement majeur”)

“sales in Ontario”, when used in reference to a period of time, means,

(a) in the case of a registered travel agent, the amount paid or to be paid to or through the travel agent for all travel services sold in Ontario during the relevant period, or

(b) in the case of a registered travel wholesaler, the amount paid or to be paid to or through the travel wholesaler for all travel services sold in Ontario during the relevant period. (“chiffre d’affaires en Ontario”)  O. Reg. 26/05, s. 1.

Exemptions

2. (1) Persons in the classes listed in subsection (2) who do not otherwise act as travel agents or travel wholesalers are exempt from the Act and this Regulation.  O. Reg. 26/05, s. 2 (1).

(2) Subsection (1) applies to:

1. A person who, in connection with the business of being an end supplier of accommodation, also provides other local travel services that are purchased from another person.

2. A person (other than a person who operates an airline, cruise line or bus line) who, in connection with the business of being an end supplier of travel services, also provides local travel services that are purchased from another person, but does not accept payment of more than 25 per cent of the cost of the travel services sold to any customer more than 30 days before the travel services are to be provided.

3. A public carrier who sells scheduled transportation.

4. An agent, appointed by a public carrier holding an operating licence under the Public Vehicles Act, who sells bus travel services.

5. A person who sells one-day tours.

6. A person who sells guide services or sightseeing services in Ontario.

7. A person who is employed to teach in an elementary or secondary school, university or college of applied arts and technology and who,

i. arranges one-day tours for the students of that school, university or college as part of the curriculum or arranges other travel services through a registered travel agent as part of the curriculum,

ii. has the approval of the appropriate board, principal or other governing body or official to make the arrangements for the travel services, and

iii. receives no direct or indirect gain or profit from arranging for the travel services other than participating in the travel services.

8. The members of a religious organization, amateur sports team or unincorporated association who provide overland travel services, if the following conditions are satisfied:

i. The travel services are provided only to members of the organization, team or association.

ii. The organization, team or association exists primarily for educational, cultural, religious or athletic purposes and the travel services are provided for those purposes.

iii. Any funds received for the travel services are deposited into a trust account and disbursed to pay the suppliers of the travel services or a travel agent.

iv. The organization, team or association, its members and employees receive no direct or indirect gain or profit from the provision of the travel services other than participating in the travel services.

v. The travel services do not include a destination located more than 2,000 kilometres from the departure point.

vi. The vehicle that is used for transportation remains at the destination to ensure that return transportation is available.

9. A not-for-profit corporation without share capital, operating as a club, that provides overland travel services to members of the club, if the following conditions are satisfied:

i. The travel services are provided only to members of the club.

ii. The corporation exists primarily for educational, cultural, religious or athletic purposes and the travel services are provided for those purposes.

iii. Any funds received for the travel services are deposited into a trust account and disbursed to pay the suppliers of the travel services or a travel agent.

iv. The corporation, its members, officers, directors and employees receive no direct or indirect gain or profit from the provision of the travel services other than participating in the travel services.

v. The travel services do not include a destination located more than 2,000 kilometres from the departure point.

vi. The vehicle that is used for transportation remains at the destination to ensure that return transportation is available. O. Reg. 26/05, s. 2 (2); O. Reg. 170/16, s. 1 (1).

(3) In subsection (2),

“one-day tour” means a tour that,

(a) commences at a departure point and concludes at the same point within a 24-hour period, and

(b) includes travel services, except for accommodation. O. Reg. 170/16, s. 1 (2).

PART II
REGISTRATION

Applications and Renewals

Application, form and fee

3. (1) An application for registration or for renewal of registration as a travel agent or a travel wholesaler shall contain all the required information, in a form approved by the registrar, and shall be accompanied by the relevant fee set by the administrative authority under clause 12 (1) (b) of the Safety and Consumer Statutes Administration Act, 1996, payable to the administrative authority.  O. Reg. 26/05, s. 3 (1).

(2) An application that does not comply with subsection (1) is incomplete.  O. Reg. 26/05, s. 3 (2).

Expiry of registration

4. Every registration expires on the date shown on the certificate of registration.  O. Reg. 26/05, s. 4.

Prescribed requirements for registration or renewal

5. For the purposes of subsection 8 (1) of the Act, an applicant for registration or renewal of registration shall meet the following requirements:

1. If the applicant is an individual, he or she is at least 18 years of age and is a resident of Canada.

2. The applicant does not owe the administrative authority a payment under clause 12 (1) (c) of the Safety and Consumer Statutes Administration Act, 1996, or if the applicant does owe the administrative authority such a payment, the applicant has made arrangements acceptable to the registrar to pay the amount.

3. The administrative authority does not have an outstanding judgment against the applicant, or if the administrative authority does have such a judgment, the applicant has made arrangements acceptable to the registrar to satisfy the judgment.

4. The administrative authority has not paid any claims from the Fund in relation to the applicant’s bankruptcy, insolvency or ceasing to carry on business, or if the administrative authority has paid such claims, the applicant has reimbursed the administrative authority for them and for the administrative authority’s costs, or made arrangements acceptable to the registrar to do so.

5. If required to provide security in accordance with section 25, the applicant has done so.

6. Every other person who is an interested person in respect of the applicant for the purposes of section 8 of the Act also satisfies the conditions in paragraphs 2 to 5.  O. Reg. 26/05, s. 5; O. Reg. 79/07, s. 1.

Prescribed conditions, continuation pending renewal

6. The prescribed conditions for the purpose of subsection 11 (8) of the Act are:

1. If the registrant is an individual, he or she is a resident of Canada.

2. The registrant does not owe the administrative authority a payment under clause 12 (1) (c) of the Safety and Consumer Statutes Administration Act, 1996, or if the registrant does owe the administrative authority such a payment, the registrant has made arrangements acceptable to the registrar to pay the amount.

3. The administrative authority does not have an outstanding judgment against the registrant, or if the administrative authority does have such a judgment, the registrant has made arrangements acceptable to the registrar to satisfy the judgment.

4. The administrative authority has not paid any claims from the Fund in relation to the registrant’s bankruptcy, insolvency or ceasing to carry on business, or if the administrative authority has paid such claims, the registrant has reimbursed the administrative authority for them and for the administrative authority’s costs, or made arrangements acceptable to the registrar to do so.

5. If required to provide security in accordance with section 25, the registrant has done so.  O. Reg. 26/05, s. 6; O. Reg. 79/07, s. 1.

Prescribed time to reapply after refusal, etc.

7. The prescribed time for the purpose of clause 14 (a) of the Act is 30 days.  O. Reg. 26/05, s. 7.

Obligations of Registrants

Individual registrant, prescribed condition

8. For the purposes of subsection 8 (2) of the Act, it is a prescribed condition that a registrant who is an individual be a resident of Canada.  O. Reg. 26/05, s. 8.

Name

9. (1) A registrant shall not carry on business under a name other than,

(a) the name appearing on the registration; or

(b) a name registered under the Business Names Act.  O. Reg. 26/05, s. 9 (1).

(2) The registrant shall notify the registrar of the names under which business will be carried on, and shall not carry on business under those names until the registrant has received the registrar’s acknowledgment of the notice.  O. Reg. 26/05, s. 9 (2).

(3) The registrant shall not carry on business under a name that indicates a sponsorship, approval, status or affiliation that the registrant does not have.  O. Reg. 26/05, s. 9 (3).

Place of business

10. (1) A registrant shall carry on business in Ontario only from a permanent place of business in Ontario.  O. Reg. 26/05, s. 10 (1).

(2) A registrant shall not carry on business from a dwelling unless the following conditions are met:

1. The registrant provides proof to the registrar that carrying on the business from the dwelling is permitted by the municipality responsible for enforcing local zoning requirements.

2. The registrant has a business telephone number that is listed under the name under which the registrant carries on business and is different from any residential telephone number.

3. The registrant has made arrangements that are satisfactory to the registrar to provide access to the registrant’s business records.  O. Reg. 26/05, s. 10 (2).

Branch office

11. A registrant shall not operate a branch office in Ontario unless the branch office is authorized by the registration.  O. Reg. 26/05, s. 11.

Sale of travel services by travel agent

12. (1) A registrant who is a travel agent shall not sell or offer to sell travel services unless,

(a) the travel services are sold or offered in accordance with subsection (2), (3) or (4), as the case may be;

(b) the name under which the registrant carries on business and the registrant’s address and business telephone number are disclosed to the customer; and

(c) any connection between the registrant and any other registrant that is relevant to the travel services being sold or offered to the customer by the first-named registrant is disclosed to the customer.  O. Reg. 26/05, s. 12 (1); O. Reg. 161/10, s. 1 (1).

(2) During the period that ends on June 30, 2009, the travel services referred to in clause (1) (a) shall be sold or offered,

(a) directly by the registrant; or

(b) by an individual who is employed by or has a written contract with the registrant.  O. Reg. 26/05, s. 12 (2); O. Reg. 278/07, s. 1.

(3) On and after July 1, 2009, a registrant who is a travel agent and not an individual shall not sell or offer to sell travel services unless the services are sold or offered,

(a) directly by the registrant; or

(b) by an individual who is employed by or has a written contract with the registrant and who,

(i) has obtained from the administrative authority the required certification for being a travel counsellor and, if applicable, the required certification for being a travel supervisor/manager, or

(ii) meets the conditions set out in subsection 15 (3).  O. Reg. 161/10, s. 1 (2).

(4) On and after July 1, 2009, a registrant who is a travel agent and an individual shall not sell or offer to sell travel services unless the registrant has obtained from the administrative authority the required certification for being a travel counsellor and, if applicable, the required certification for being a travel supervisor/manager.  O. Reg. 161/10, s. 1 (2).

Certificate of registration

13. (1) A registrant shall keep the certificate of registration at the office or branch office for which it is issued and shall produce it for inspection on any person’s request.  O. Reg. 26/05, s. 13 (1).

(2) If a registration is revoked, suspended or cancelled or if the registrant voluntarily ceases business, the registrant shall promptly return the certificate of registration to the registrar by registered mail or by personal delivery.  O. Reg. 26/05, s. 13 (2).

14. Revoked: O. Reg. 170/16, s. 2.

Employees and contractors

15. (1) This section applies on and after July 1, 2009.  O. Reg. 26/05, s. 15 (1); O. Reg. 278/07, s. 1.

(2) A travel agent shall ensure that,

(a) each office operated by the travel agent is managed and supervised, throughout its hours of operation, by a person who,

(i) meets the conditions set out in subsection (2.1), or

(ii) meets the conditions set out in subsection (3); and

(b) at least one person who has obtained the required certification for being a travel counsellor from the administrative authority is available at each office operated by the travel agent, throughout its hours of operation.  O. Reg. 26/05, s. 15 (2); O. Reg. 161/10, s. 2 (1, 2).

(2.1) The conditions referred to in subclause (2) (a) (i) are that the person,

(a) has obtained from the administrative authority the required certification for being,

(i) a travel counsellor, and

(ii) a travel supervisor/manager within six months of being employed by the travel agent as a supervisor/manager; and

(b) in the registrar’s opinion, has sufficient experience with and knowledge of the business of selling travel services to ensure that the office is managed in compliance with the Act and this Regulation.  O. Reg. 161/10, s. 2 (3).

(3) The conditions referred to in subclause (2) (a) (ii) are that the person,

(a) on June 30, 2009, managed and supervised an office operated by a travel agent;

(b) has obtained from the administrative authority the required certification for being a travel counsellor; and

(c) in the registrar’s opinion, has sufficient experience with and knowledge of the business of selling travel services to ensure that the office is managed in compliance with the Act and this Regulation.  O. Reg. 26/05, s. 15 (3); O. Reg. 278/07, s. 1; O. Reg. 161/10, s. 2 (4).

(4) An application for renewal of registration as a travel agent shall be accompanied by a list of the names and addresses of the persons who meet the requirements of subsection (2) and,

(a) are employees of the applicant; or

(b) have contracts for services with the applicant.  O. Reg. 26/05, s. 15 (4).

(5) An application for registration as a travel agent by an applicant who was not registered at the time of the application shall be accompanied by a list of the names and addresses of the persons who meet the requirements of subsection (2) or are expected to have done so by the time the applicant is registered and,

(a) are employees or proposed employees of the applicant; or

(b) have contracts or proposed contracts for services with the applicant.  O. Reg. 26/05, s. 15 (5).

Records re employees and contractors

16. (1) A registrant shall maintain accurate and up-to-date records about persons who counsel customers in relation to travel services and are employed by or have contracts for services with the registrant.  O. Reg. 26/05, s. 16 (1).

(2) On and after July 1, 2009, the records required by subsection (1) include copies of the relevant certificates issued by the administrative authority.  O. Reg. 26/05, s. 16 (2); O. Reg. 278/07, s. 1; O. Reg. 161/10, s. 3.

Advance notice to registrar re certain changes

17. (1) During the period that ends on June 30, 2009, a registrant shall notify the registrar at least five days before any of the following takes place:

1. A change of address for the office or a branch office of the registrant.

2. A change of the person identified under section 14 to manage and supervise an office.

3. A change in the name or number of an account or in the financial institution in which the account is maintained.  O. Reg. 26/05, s. 17 (1); O. Reg. 278/07, s. 1.

(2) On and after July 1, 2009, a registrant shall notify the registrar at least five days before any of the following takes place:

1. A change of address for the office or a branch office of the registrant.

2. Any change of the person who satisfies the requirements of clause 15 (2) (a), if the registrant is aware of the change at least five days before the change takes place.

3. A change in the name or number of an account or in the financial institution in which the account is maintained.  O. Reg. 26/05, s. 17 (2); O. Reg. 278/07, ss. 1, 2 (1).

(3) If a change of the person who satisfies the requirements of clause 15 (2) (a) takes place and a registrant is not aware of the change at least five days before the change takes place, the registrant shall notify the registrar immediately upon becoming aware of the change.  O. Reg. 278/07, s. 2 (2).

Notice to registrar re other changes

18. If there is a change to any of the required information that was included in a registrant’s application under subsection 3 (1), other than a change described in section 17, the registrant shall notify the registrar within five days after the change takes place.  O. Reg. 26/05, s. 18.

Notice of ceasing to sell travel services

18.1 (1) A registrant that knows that it will cease to sell travel services at least 10 days before doing so shall provide written notice to the registrar as soon as practicable, but in no event less than 10 days before ceasing to sell travel services.  O. Reg. 161/10, s. 4.

(2) A registrant that does not know that it will cease to sell travel services at least 10 days before doing so shall notify the registrar as soon as practicable after becoming aware that it will cease to sell travel services.  O. Reg. 161/10, s. 4.

(3) A registrant that ceases to sell travel services shall provide the following to the registrar at the earliest practicable opportunity:

1. A letter setting out the exact date that the registrant ceased to sell travel services, if the registrant did not provide notice of that date under subsection (1).

2. A letter setting out the location where the registrant’s business records relating to the travel services that it sold will be kept.  O. Reg. 161/10, s. 4.

Information in approved form

19. A registrant who is required to provide information to the administrative authority or to the registrar shall provide it in a form approved by the registrar.  O. Reg. 26/05, s. 19.

Unregistered travel agent or travel wholesaler

20. A registrant shall not carry on business with another person who is required to be registered under the Act but is not in fact so registered.  O. Reg. 26/05, s. 20.

Notice of ceasing to trade with registrant

21. A registrant who ceases to trade with another registrant by reason of the other registrant’s apparent lack of financial responsibility shall promptly notify the registrar in writing of the fact and of the reasons for ceasing to trade.  O. Reg. 26/05, s. 21.

Financial statements

22. (1) Every registrant shall file with the registrar the financial statements required by this section for each fiscal year.  O. Reg. 26/05, s. 22 (1).

(2) A registrant who had sales in Ontario of less than $10 million during the previous fiscal year shall file, within three months after the end of the fiscal year,

(a) annual financial statements with a review engagement report by a public accountant licensed under the Public Accounting Act, 2004; or

(b) annual financial statements with an auditor’s report from a licensed public accountant, if the registrant is required to obtain annual financial statements with an auditor’s report under the Business Corporations Act.  O. Reg. 26/05, s. 22 (2); O. Reg. 278/07, s. 3; O. Reg. 161/10, s. 5 (1).

(3) A registrant who is a travel agent and had sales in Ontario of $10 million or more but less than $20 million during the previous fiscal year shall file,

(a) annual financial statements with an audit opinion from a licensed public accountant within three months after the end of the fiscal year; and

(b) semi-annual financial statements within 45 days after the end of each fiscal half-year.  O. Reg. 26/05, s. 22 (3); O. Reg. 161/10, s. 5 (2).

(4) A registrant who is a travel agent and had sales in Ontario of $20 million or more during the previous fiscal year shall file,

(a) annual financial statements with an audit opinion from a licensed public accountant within three months after the end of the fiscal year; and

(b) quarterly financial statements within 45 days after the end of each quarter during the fiscal year.  O. Reg. 26/05, s. 22 (4); O. Reg. 161/10, s. 5 (2).

(5) A registrant who is a travel wholesaler and had sales in Ontario of $10 million or more during the previous fiscal year shall file,

(a) annual financial statements with an audit opinion from a licensed public accountant within three months after the end of the fiscal year; and

(b) quarterly financial statements within 45 days after the end of each quarter during the fiscal year.  O. Reg. 26/05, s. 22 (5); O. Reg. 161/10, s. 5 (2).

(5.1) Despite subsections (3) and (4), a registrant that carries on business as both a travel agent and a travel wholesaler shall file financial statements in accordance with subsection (5).  O. Reg. 161/10, s. 5 (3).

(6) Financial statements required under this section shall include a statement of sales in Ontario made during the period to which the financial statements refer, a balance sheet, an income statement and a reconciliation of the trust accounts maintained under section 27.  O. Reg. 26/05, s. 22 (6).

(7) If additional information is necessary to provide an accurate and complete review of the registrant’s financial position, the registrar may require that the registrant file audited financial statements that consolidate or combine the registrant’s financial statements with,

(a) the financial statements of another registrant; or

(b) if the registrant is a corporation, with the financial statements of another person who is a shareholder associated with the registrant.  O. Reg. 26/05, s. 22 (7).

(8) If the registrar has reason to believe that a registrant is in financial difficulty, the registrar may require that the registrant provide to the registrar,

(a) a written statement of the registrant’s current net working capital, if the registrant is not a person described in subsection 24 (4); or

(b) a written statement that the registrant is a person described in subsection 24 (4), if the registrant is such a person. O. Reg. 170/16, s. 3.

(8.1) The registrant shall comply with subsection (8) within the time that the registrar specifies. O. Reg. 170/16, s. 3.

(9) The registrar may require that a statement provided under subsection (7) or (8) be verified by affidavit.  O. Reg. 26/05, s. 22 (9).

23. Revoked: O. Reg. 170/16, s. 4.

Minimum working capital

24. (1) This section applies on and after January 1, 2006.  O. Reg. 26/05, s. 24 (1).

(2) A registrant who had sales in Ontario during the previous fiscal year of an amount shown in Column 1 of the Table to this section shall maintain a working capital of at least the amount shown in Column 2 opposite the first-named amount.  O. Reg. 26/05, s. 24 (2).

(3) A registrant’s working capital shall be calculated in accordance with generally accepted accounting principles and shall not include,

(a) the value of any security provided under subsection 25 (1); or

(b) capital belonging to any person who is an interested person in respect of the registrant for the purposes of section 8 of the Act.  O. Reg. 26/05, s. 24 (3).

(4) A registrant is exempt from this section if the following conditions are satisfied:

1. The registrant is a not-for-profit corporation without share capital.

2. The registrant has entered into a transfer payment agreement or other funding agreement with the Crown in right of Ontario or a municipality.

3. The term of the agreement is set out in the agreement, is for a period of not less than one year and has not expired.

4. The agreement requires the registrant to promote tourism in any geographic area of Ontario.

5. If the registrar requires the registrant to provide the registrar with a copy of the agreement, the registrant provides the copy to the registrar within the time and in the manner that the registrar specifies.

6. If the registrar requires the registrant to provide the registrar with information about facts affecting matters dealt with in the agreement, the registrant provides the information within the time and in the manner that the registrar specifies.

7. The registrant provides written notice to the registrar of any amendments to the agreement within a reasonable time following an amendment. O. Reg. 170/16, s. 5.

TABLE

 

Column 1

Sales in Ontario during previous fiscal year

Column 2

Minimum working capital

$500,000 or less

$5,000

More than  $500,000 but not more than $750,000

10,000

More than $750,000 but not more than $1,000,000

15,000

More than $1,000,000 but not more than $2,000,000

20,000

More than $2,000,000 but not more than $5, 000,000

25,000

More than $5,000,000 but not more than $10,000,000

35,000

More than $10,000,000 but not more than $20,000,000

50,000

More than $20,000,000

100,000

O. Reg. 26/05, s. 24, Table.

Security, new applicant

25. (1) A person who has not been registered at any time during the previous 12 months shall provide $10,000 in security to the administrative authority when applying for registration.  O. Reg. 26/05, s. 25 (1).

(2) When a registrant who has provided security under subsection (1) or (5) has filed two consecutive annual financial statements under section 22,

(a) if the registrar has no concerns about the registrant’s compliance with this Regulation or with the Act, the registrar shall return the security to the registrant within a reasonable time; or

(b) if the registrar has concerns about the registrant’s compliance with this Regulation or with the Act, the registrar shall return the security to the registrant only when the registrar’s concerns have been resolved. O. Reg. 170/16, s. 6 (1).

(3) When the registrar returns the security under subsection (2), an amount shall be deducted for any claims paid or anticipated to be paid to customers of the registrant from the Fund because of the registrant’s bankruptcy, insolvency or ceasing to carry on business.  O. Reg. 26/05, s. 25 (3).

(4) A registrant is exempt from this section if,

(a) the conditions set out in subsection 24 (4) are satisfied; and

(b) if the registrant has entered into a transfer payment agreement or other funding agreement with a municipality,

(i) the municipality has entered into a financial arrangement, financial commitment, guarantee, indemnity or similar transaction with the administrative authority that provides that the municipality has a contingent liability to the administrative authority for the amount of any deduction that would be required under subsection (3) if the registrant were not exempt from this section, and

(ii) the registrar has provided confirmation in writing to the registrant that the condition described in subclause (i) has been satisfied. O. Reg. 170/16, s. 6 (2).

(5) If a registrant who is exempt from this section ceases to be exempt before the registrant has filed two consecutive annual financial statements under section 22, the registrant shall provide $10,000 in security to the administrative authority as soon as practicable after the registrant ceases to be exempt. O. Reg. 170/16, s. 6 (2).

(6) If a registrant who is exempt from this section ceases to be exempt after the registrant has filed two consecutive annual financial statements under section 22, the registrant shall provide written notice to the registrar as soon as practicable after the registrant ceases to be exempt. O. Reg. 170/16, s. 6 (2).

(7) When a registrant has provided the registrar with the written notice referred to in subsection (6), the registrar shall give the registrant written notice of the following within a reasonable time:

1. If the registrar has no concerns about the registrant’s compliance with this Regulation or with the Act, a statement of that fact.

2. If the registrar has concerns about the registrant’s compliance with this Regulation or with the Act, a specification of the time within which the registrant shall provide $10,000 in security to the administrative authority. 

3. If there are any claims anticipated to be paid to customers of the registrant from the Fund because of the registrant’s bankruptcy, insolvency or ceasing to carry on business, a specification of,

i. the amount that the registrant shall pay to the administrative authority for any such claims, which amount shall not exceed $10,000, and

ii. the time within which the registrant shall provide the amount to the administrative authority and the manner in which the amount is to be provided. O. Reg. 170/16, s. 6 (2).

(8) A registrant who has been provided with the notice described in paragraph 2 of subsection (7) shall, as soon as practicable, provide $10,000 in security to the administrative authority within the time and in the manner specified in the notice. O. Reg. 170/16, s. 6 (2).

(9) When a registrant has provided security under subsection (8) the registrar shall return the security to the registrant only when the registrar’s concerns referred to in paragraph 2 of subsection (7) have been resolved. O. Reg. 170/16, s. 6 (2).

(10) When the registrar returns the security under subsection (9), an amount shall be deducted for any claims paid or anticipated to be paid to customers of the registrant from the Fund because of the registrant’s bankruptcy, insolvency or ceasing to carry on business. O. Reg. 170/16, s. 6 (2).

(11) A registrant who has been provided with the notice described in paragraph 3 of subsection (7) shall, as soon as practicable, provide the amount specified in the notice, which shall not exceed $10,000, to the administrative authority within the time and in the manner specified in the notice. O. Reg. 170/16, s. 6 (2).

(12) Subsections (5) to (11) do not apply to a registrant if the registrar has provided confirmation in writing to the registrant that the condition described in subclause (4) (b) (i) has been satisfied. O. Reg. 170/16, s. 6 (2).

Bank accounts

26. (1) A registrant shall maintain all accounts in Ontario in a bank listed in Schedule I or II to the Bank Act (Canada), a loan or trust corporation or a credit union as defined in the Credit Unions and Caisses Populaires Act, 1994.  O. Reg. 26/05, s. 26 (1).

(2) Each account shall be in a name under which the registrant is permitted to carry on business in accordance with subsection 9 (1).  O. Reg. 26/05, s. 26 (2).

(3) The registrant shall promptly deposit all funds received as payment for travel services into such an account.  O. Reg. 26/05, s. 26 (3).

Interpretation

26.1 In sections 27 and 28, money that a registrant receives from customers for travel services in reference to a period of time means the money for travel services that the registrant actually receives from customers during that period, but does not include,

(a) amounts for travel services that are paid by customers through the registrant during that period; or

(b) amounts for travel services sold to customers during that period if the amounts are to be paid to the registrant outside of that period.  O. Reg. 161/10, s. 6.

Trust accounts

27. (1) A registrant shall maintain a trust account for all money received from customers for travel services.  O. Reg. 26/05, s. 27 (1).

(2) The trust account shall be designated as a Travel Industry Act trust account.  O. Reg. 26/05, s. 27 (2).

(3) A registrant shall hold all money received from customers for travel services in trust and shall deposit all such money into the trust account within two banking days after receiving it.  O. Reg. 26/05, s. 27 (3).

(4) No registrant shall maintain more than one trust account under subsection (1) without the registrar’s written consent, obtained in advance.  O. Reg. 26/05, s. 27 (4).

(5) A registrant shall file with the registrar,

(a) a copy of the trust agreement with the financial institution, within five days after establishing a trust account; and

(b) a copy of any changes to the trust agreement, within five days after making the changes.  O. Reg. 26/05, s. 27 (5).

(6) No registrant shall disburse or withdraw any money held in a trust account under subsection (1), except,

(a) to make payment to the supplier of the travel services for which the money was received;

(b) to make a refund to a customer; or

(c) after the supplier of the travel services has been paid in full, to pay the registrant’s commission.  O. Reg. 26/05, s. 27 (6).

Security instead of trust account

28. (1) Despite section 27, a registrant who has been registered and carrying on business continuously for at least one fiscal year may, instead of maintaining a trust account, provide security to the administrative authority in an amount that is equal to or greater than one-sixth of the money that the registrant receives from customers for travel services for the 12-month period ending on the last day accounted for in the most recent annual, semi-annual or quarterly financial statements, as the case may be, required to be filed under section 22.  O. Reg. 26/05, s. 28 (1); O. Reg. 161/10, s. 7 (1).

(1.1) The financial statements referred to in subsection (1) shall set out the total amount of money that the registrant received from customers for travel services for the period to which the statements relate.  O. Reg. 161/10, s. 7 (2).

(2) The obligation to maintain a trust account does not cease until the registrant receives the registrar’s acknowledgment that the security has been received.  O. Reg. 26/05, s. 28 (2).

(3) A registrant who provides security under subsection (1) shall, within 30 days after the day the registrant is required to file any financial statements under section 22, review the amount of the security and ensure that it continues to meet the requirements of subsection (1).  O. Reg. 26/05, s. 28 (3).

Business records

29. (1) A registrant shall maintain the following business records at the registrant’s principal place of business, or at another place that the registrar approves in writing:

1. Accounting records setting out in detail the registrant’s income and expenses and supporting documentary evidence, including copies of statements, invoices or receipts that have unique identifiers or serial numbers provided to customers.

2. Banking records that readily identify and may be used to verify all transactions that were made in connection with the registrant’s business.

3. A written record of all payments made by or to the registrant respecting the purchase or sale of travel services.  The record shall be in a form that enables the registrar to identify readily the transaction to which each payment relates, based on the unique identifiers or serial numbers.

4. The files maintained under subsections 39 (3) and 40 (3).  O. Reg. 26/05, s. 29 (1).

(2) Any record required to be maintained under subsection (1) shall be retained for a period of at least six years after the date of the relevant transaction.  O. Reg. 26/05, s. 29 (2).

Application of ss. 31-37

30. Sections 31 to 37 apply with respect to representations relating to the provision of travel services.  O. Reg. 26/05, s. 30.

Requirements relating to representations

31. (1) A registrant who makes a representation or who has one made on the registrant’s behalf shall ensure that it complies with the Act and with this Regulation.  O. Reg. 26/05, s. 31 (1).

(2) Unless a representation is made orally,

(a) it shall include the name under which the registrant carries on business and the registrant’s address and registration number; and

(b) it shall not include a residential telephone number.  O. Reg. 26/05, s. 31 (2).

(3) Clause (2) (a) does not apply to a representation that is displayed on a billboard or bus board or made through any other medium with similar time or space limitations.  O. Reg. 26/05, s. 31 (3).

False, misleading and deceptive representations

32. No registrant shall make a representation that is false, misleading or deceptive.  O. Reg. 26/05, s. 32.

Statements re price

33. (1) A representation that refers to the price of travel services shall show the information required by subsections (2) and (4) in a clear, comprehensible and prominent manner.  O. Reg. 26/05, s. 33 (1).

(2) The representation shall set out,

(a) the total amount the customer will be required to pay for the travel services, including all fees, levies, service charges and surcharges; or

(b) the amount the customer will be required to pay for the travel services, excluding fees, levies, service charges and surcharges, and,

(i) an itemized list of the cost for each fee, levy, service charge and surcharge, or

(ii) the total cost the customer will be required to pay for fees, levies, service charges and surcharges.  O. Reg. 26/05, s. 33 (2).

Note: On January 1, 2017, subsection 33 (2) of the Regulation is revoked and the following substituted: (See: O. Reg. 170/16, s. 7)

(2) The representation shall set out the total amount that the customer will be required to pay for the travel services, including all fees, levies, service charges, surcharges, taxes and other charges, and shall comply with the requirements of any Act or regulation under it in respect of taxes. O. Reg. 170/16, s. 7.

(3) It is not necessary for the representation to deal with retail sales tax or federal goods and services tax.  O. Reg. 26/05, s. 33 (3).

Note: On January 1, 2017, subsection 33 (3) of the Regulation is revoked. (See: O. Reg. 170/16, s. 7)

(4) The representation shall contain,

(a) a statement of any conditions that affect or limit the availability of the travel services at the price set out under subsection (2);

(b) a reasonable description of the travel services; and

(c) a statement that further information is available from a travel agent.  O. Reg. 26/05, s. 33 (4); O. Reg. 278/07, s. 4 (1).

(5) A representation shall not refer to the price of travel services unless the travel services are available at that price during the time to which the representation applies.  O. Reg. 26/05, s. 33 (5).

(6) A representation shall not refer to a previous price for travel services.  O. Reg. 26/05, s. 33 (6).

(7) The price of travel services referred to in a representation shall be in Canadian currency unless the representation indicates, in a clear, prominent and comprehensible manner, that a different currency is used.  O. Reg. 26/05, s. 33 (7).

(8) When the names of air carriers, hotels and travel wholesalers where applicable become available to the registrant who makes a representation that refers to the price of travel services, the registrant shall disclose the names to all customers who have entered into an agreement with the registrant for those travel services.  O. Reg. 278/07, s. 4 (2).

Information to be included in certain representations

34. (1) A representation that is in writing and relates to a specific travel service shall include the following information:

1. Deposit requirements.

2. Final payment requirements.

3. The total price of the travel services as set out under subsection 33 (2).

4. Cancellation terms and any cancellation charges.

5. The availability and cost of trip cancellation insurance, and of out-of-province health insurance if applicable.

6. The refund policy, including any penalty provisions.

7. A fair and accurate description of the travel services, including,

i. details of transportation, including the name of the principal carrier, the class of service and all departure and arrival points, and

ii. details of any accommodation.

8. The date or anticipated date of commencement and the anticipated duration of any construction or renovation that is likely to interfere with the use and enjoyment of any accommodation.

9. The period to which the representation applies.  O. Reg. 26/05, s. 34 (1).

(2) Subsection (1) does not apply to a representation that is displayed on a billboard or bus board or made through any other medium with similar time or space limitations.  O. Reg. 26/05, s. 34 (2).

Photographs and other pictures

35. (1) If a photograph is used in a representation,

(a) the photograph shall accurately depict the thing to which the representation refers; and

(b) the representation shall indicate, in a clear, prominent and comprehensible manner, that the photograph is a photograph of the thing to which the representation refers.  O. Reg. 26/05, s. 35 (1).

(2) If a picture that is not a photograph is used in a representation,

(a) the picture shall accurately depict the thing being represented; and

(b) the representation shall indicate, in a clear, prominent and comprehensible manner, that the picture is not a photograph of the thing to which the representation refers.  O. Reg. 26/05, s. 35 (2).

Duty of travel agent, disclosure and advice

36. Before entering into an agreement with a customer for travel services, and before taking payment or credit card information from the customer, a travel agent shall,

(a) bring to the customer’s attention any conditions related to the purchase of travel services that the travel agent has reason to believe may affect the customer’s decision to purchase;

(b) disclose the total price of the travel services, the travel dates and a fair and accurate description of the travel services to be provided;

(c) explain to the customer any requirements or limitations relating to transfer or cancellation of the travel services, including,

(i) the range of penalties or other costs associated with transfer or cancellation, and

(ii) any non-refundable payments to be made by the customer;

(d) advise the customer about the availability of,

(i) trip cancellation insurance, and

(ii) out-of-province health insurance if applicable;

(e) in the case of proposed travel outside Canada, advise the customer,

(i) about typical information and travel documents, such as passports, visas and affidavits, that will be needed for each person for whom travel services are being purchased,

(ii) that entry to another country may be refused even if the required information and travel documents are complete, and

(iii) that living standards and practices at the destination and the standards and conditions there with respect to the provision of utilities, services and accommodation may differ from those found in Canada;

(f) refer to other conditions, if any, that relate to the transaction and to the travel services, and advise the customer where those conditions may be reviewed; and

(g) advise the customer that the travel agent is required to answer any questions the customer may have arising from the information provided under clauses (a) to (f) or from a representation.  O. Reg. 26/05, s. 36.

Advising customer of changes

37. If, after a customer has purchased travel services, the registrant becomes aware of a change to any matter that is referred to in a representation and that, if known, might have affected the customer’s decision to purchase, the registrant shall promptly advise the customer of the change.  O. Reg. 26/05, s. 37.

Statements, invoices and receipts

38. (1) After selling travel services to a customer, a travel agent shall promptly provide the customer with a statement, invoice or receipt that meets the requirements of subsection (3) and sets out,

(a) the name and address of the customer who purchased the travel services and the name, if known, of each person on whose behalf the payment is made;

(b) the date of the booking and the date of the first payment;

(c) the amount of the payment, indicating whether it is full or partial payment, the amount of any balance owing, if known, and the date when it is to be paid;

(d) any fees, levies, service charges, surcharges, taxes or other charges, and whether those amounts are refundable or non-refundable;

(e) the total price of the travel services;

(f) the name under which the travel agent carries on business, the travel agent’s telephone number and registration number, the address of the travel agent’s place of business, and information respecting other ways, if any, that the customer may contact the travel agent, such as the travel agent’s fax and e-mail address;

(g) a fair and accurate description of the travel services contracted for, including the destination, the departure date and the name of the persons who will provide the travel services;

(h) a statement whether or not the customer has purchased trip cancellation insurance and, if applicable, out-of-province health insurance, if the travel agent sells those types of insurance;

(h.1) a statement whether the customer was advised of the availability of trip cancellation insurance and, if applicable, out-of-province health insurance, if the travel agent does not sell those types of insurance;

(i) whether the contract permits price increases;

(j) if the contract permits price increases,

(i) a statement that no price increases are permitted after the customer has paid in full, and

(ii) a statement that if the total price of the travel services is increased and the cumulative increase, except any increase resulting from an increase in retail sales tax or federal goods and services tax, is more than 7 per cent, the customer has the right to cancel the contract and obtain a full refund;

(k) the information given to the customer under clause 36 (e); and

(l) the name of the travel counsellor who made the booking and accepted the first payment.  O. Reg. 26/05, s. 38 (1); O. Reg. 278/07, s. 5; O. Reg. 161/10, s. 8.

(2) Every travel wholesaler shall promptly provide to each travel agent through whom the travel wholesaler sells a travel service a statement, invoice or receipt that meets the requirements of subsection (3) and sets out,

(a) the name and address of the travel agent through whom the travel wholesaler is selling the travel service;

(b) the terms of payment and the amount paid;

(c) the name of each customer and, if known, each other person for whom the travel service is being purchased; and

(d) the destination of each customer and other person and, if relevant, the date of departure.  O. Reg. 26/05, s. 38 (2).

(3) A statement, invoice or receipt referred to in subsection (1) or (2) shall,

(a) if it is prepared manually, be consecutively pre-numbered;

(b) if it is prepared by computer, be assigned a unique identifier.  O. Reg. 26/05, s. 38 (3).

Verifying condition of accommodation

39. (1) A registrant who acquires a right to accommodation for the purpose of selling it to a customer shall take reasonable measures to ensure that the accommodation is, at the time the customer uses the travel services, in the same condition as was described by the registrant at the time of sale.  O. Reg. 26/05, s. 39 (1).

(2) If the accommodation is not in the condition represented by the registrant, the registrant shall promptly notify the customer to whom the accommodation is sold, or the customer’s travel agent, as the case may be, of that fact and,

(a) if the accommodation is sold as part of a package that includes transportation to a destination, offer the customer the choice of a full and immediate refund of the amount the customer paid for the package, including all fees, levies, service charges, surcharges, taxes and other charges, or a comparable alternate package acceptable to the customer; or

(b) if the accommodation is not sold as a part of a package that includes transportation to a destination, offer the customer the choice of a full and immediate refund of the amount the customer paid for the accommodation, including all fees, levies, service charges, surcharges, taxes and other charges, or comparable alternate accommodation acceptable to the customer.  O. Reg. 26/05, s. 39 (2).

(3) Every registrant shall establish a file for the purposes of this section, and a registrant who is required to act under clause (2) (a) or (b) shall make a written notation in the file stating,

(a) what information was communicated to the customer;

(b) the date on which the information was communicated to the customer;

(c) what method of communication was used; and

(d) what choice the customer made.  O. Reg. 26/05, s. 39 (3).

Events requiring notice and offer of refund or replacement

40. (1) A registrant who becomes aware that any of the following events has occurred shall promptly notify the travel agent or customer, as the case may be, and offer the customer the choice of a full and immediate refund or comparable alternate travel services acceptable to the customer:

1. The scheduled departure of any transportation that forms part of the travel services is delayed or advanced by 24 hours or more, unless the reason for the delay or advancing is one described in subsection (2).

2. A different cruise ship is substituted.

3. The accommodation is changed or the standard of the accommodation is changed.

4. The contract permits price increases, the total price of the travel services is increased and the cumulative increase, except any increase resulting from an increase in retail sales tax or federal goods and services tax, is more than 7 per cent.

5. The contract does not permit price increases but the total price of the travel services is increased, whatever the amount of the increase or the reason for it.

6. The documents needed for the trip are changed because the transportation routing is changed, and there is not enough time for the person to obtain the documents before the departure.  O. Reg. 26/05, s. 40 (1).

(2) Paragraph 1 of subsection (1) does not apply if the delay or advancing is the result of,

(a) mechanical problems with a vehicle, ship or aircraft;

(b) safety considerations;

(c) weather conditions;

(d) a strike or lock-out; or

(e) force majeure.  O. Reg. 26/05, s. 40 (2).

(3) Every registrant shall establish a file for the purposes of this section, and a registrant who is required to act under subsection (1) shall make a written notation in the file stating,

(a) what information was communicated to the customer;

(b) the date on which the information was communicated to the customer;

(c) what method of communication was used; and

(d) what choice the customer made.  O. Reg. 26/05, s. 40 (3).

Travel wholesaler to forward documents to travel agent

41. If a travel agent sells travel services and pays the travel wholesaler for the travel services 21 or more days before the date of departure, the travel wholesaler shall forward the tickets, vouchers, itinerary and other documents that relate to the travel services to the travel agent at least 14 days before the date of departure, unless the agent or the customer directs otherwise.  O. Reg. 26/05, s. 41.

Travel agent to verify documents

42. A travel agent shall, on receiving from a travel wholesaler or other person a ticket, voucher, itinerary or other document that relates to travel services, ensure that the information contained on it is correct before giving it to the customer who purchased the travel services from the travel agent.  O. Reg. 26/05, s. 42.

Travel wholesaler required to provide travel services in certain circumstances

43. Despite any failure on the part of the travel agent to pay the travel wholesaler for travel services, the travel wholesaler shall not refuse to provide the travel services purchased by a customer if,

(a) the customer has paid the travel agent for the travel services; and

(b) the travel wholesaler has provided tickets or other documents that relate to the travel services to a travel agent for distribution to the customer.  O. Reg. 26/05, s. 43.

Disclosure of counselling fee or service charge

44. A travel agent who charges a counselling fee or service charge with respect to travel services shall, before counselling the customer about travel services or selling travel services to the customer, inform the customer,

(a) of the existence of the counselling fee or service charge; and

(b) whether the counselling fee or service charge or any part of it is refundable or non-refundable, and under what circumstances.  O. Reg. 26/05, s. 44.

Restrictions, resale of travel services

45. (1) A travel wholesaler shall sell or offer for sale travel services only if the travel wholesaler has an agreement with the supplier of the travel services and all of the terms of the agreement are set out in writing.  O. Reg. 26/05, s. 45 (1).

(2) Subsection (1) also applies, with necessary modifications, to a travel agent who has acquired rights to travel services for resale.  O. Reg. 26/05, s. 45 (2).

Duty of registrant who resells travel services

46. If a registrant acquires rights to travel services for resale to other registrants or to customers and the supplier fails to provide the travel services paid for by a customer, the registrant who acquired the rights for resale shall reimburse the customer or provide comparable alternate travel services acceptable to the customer.  O. Reg. 26/05, s. 46.

Restriction re air transportation

47. A registrant shall not sell or offer for sale travel services that include air transportation unless the air carrier,

(a) is licensed to provide the travel services in all the relevant jurisdictions, by the appropriate authorities;

(b) has received any approvals or has filed to obtain any approvals necessary to provide the travel services; and

(c) has complied with regulatory requirements in Canada and in any other relevant jurisdiction.  O. Reg. 26/05, s. 47.

Other Matters

Disclosure of information on registrants

48. (1) The registrar shall make available to the public, by electronic or other means, the following information respecting registrants:

1. The names of persons registered as travel agents or travel wholesalers.

1.1 An update on a monthly basis of the names of persons who, in the previous month, have become registered as travel agents or travel wholesalers or have ceased to be so registered.

2. The status of the registration of persons registered as travel agents or travel wholesalers, including the conditions mentioned in subsection 8 (2) of the Act that are,

i. applied by the registrar under section 10 of the Act, or

ii. ordered by the Tribunal.

3. The business address and business telephone number of persons registered as travel agents or travel wholesalers and the other ways, if any, of contacting them.

4. The names of persons whose registration has been revoked within the previous two years. 

5. The name of any registrant who has been charged with an offence by the administrative authority.

6. The name of any registrant against whom the registrar has made an order under subsection 29 (1) of the Act, and the contents of the order.  O. Reg. 26/05, s. 48 (1); O. Reg. 161/10, s. 9 (1, 2).

(2) If the registrar becomes aware of information respecting a registrant or a person who is carrying on activities that require registration and is of the opinion that the information could assist in protecting the public if the public knew of it, the registrar shall disclose the information to the public by whatever means are reasonable.  O. Reg. 26/05, s. 48 (2).

(3) If the Tribunal takes an action respecting an applicant for registration or a registrant as a result of the person requesting a hearing under the Act, the registrar shall make a notice of the action available to the public by electronic or other means.  O. Reg. 26/05, s. 48 (3).

(4) In making any information or notice available to the public under this section, the registrar shall ensure that the information or notice, as the case may be, does not include the name of an individual, except if the individual is an applicant for registration, a registrant or a person who is required to be registered or if the name of the individual is otherwise available to the public.  O. Reg. 26/05, s. 48 (4).

(5) The information that this section requires the registrar to disclose shall not be disclosed in bulk to any person except as required by law, or to a law enforcement authority.  O. Reg. 26/05, s. 48 (5).

(6) The registrar shall not make any information available to the public under this section if it is financial information relating to a person or the business of a person and the person could reasonably expect that the information would be kept confidential.  O. Reg. 161/10, s. 9 (3).

False advertising order, prescribed period for pre-approval

49. The prescribed period for the purpose of subsection 29 (4) of the Act is 90 days.  O. Reg. 26/05, s. 49.

PART III
FUND

General

Participation mandatory

50. Every registrant shall participate in the Fund.  O. Reg. 26/05, s. 50.

Role of board

51. The board of directors shall administer and manage the affairs of the Fund.  O. Reg. 26/05, s. 51.

Fund

52. (1) The Fund is composed of,

(a) payments made by registrants in accordance with this Regulation and by participants or registrants in accordance with a predecessor to this Regulation;

(a.1) payments that registrants are required to make to the Fund under clause 12 (1) (c) of the Safety and Consumer Statutes Administration Act, 1996;

(b) any money borrowed under this Regulation or under a predecessor of this Regulation;

(c) recoveries made for money paid from the Fund; and

(d) any income earned on the money in the Fund.  O. Reg. 26/05, s. 52 (1); O. Reg. 79/07, s. 2.

(2) The administrative authority shall hold all money in the Fund in trust for the benefit of claimants whose claims for compensation the board of directors approves in accordance with this Regulation.  O. Reg. 26/05, s. 52 (2).

53., 54. Revoked:  O. Reg. 79/07, s. 3.

Board to notify registrar of default, etc.

55. The board of directors shall notify the registrar as soon as possible if, in connection with its administration of the Fund, it becomes aware of,

(a) any default of a registrant;

(b) any claim made under this Part in respect of a registrant; or

(c) any failure by a registrant to perform any obligation or condition under the Act or this Regulation.  O. Reg. 26/05, s. 55.

Claims

Board to deal with claims

56. The board of directors shall determine,

(a) whether a claim, or a part of one, is eligible for reimbursement; and

(b) the eligible amount of the claim.  O. Reg. 26/05, s. 56.

Reimbursement of customer

57. (1) A customer is entitled to be reimbursed for travel services paid for but not provided if,

(a) the customer paid for the travel services and the payment or any part of it was made to or through a registered travel agent;

(b) the customer has made a demand for payment from,

(i) the registered travel agent and the appropriate registered wholesaler,

(ii) any other person who has received the customer’s money, and

(iii) any other person who may be legally obliged to reimburse or compensate the customer, including a person obliged under a contract for insurance; and

(c) the customer has not been reimbursed by,

(i) those of the registered travel agent and the appropriate registered wholesaler, who under section 25 of the Act are liable to make the reimbursement, because they,

(A) are unable to pay by reason of bankruptcy or insolvency,

(B) have ceased carrying on business and are unwilling to pay, or

(C) have ceased carrying on business and cannot be located,

(ii) any other person who has received the customer’s money, or

(iii) any other person who may be legally obliged to reimburse or compensate the customer, including a person obliged under a contract for insurance.  O. Reg. 26/05, s. 57 (1); O. Reg. 161/10, s. 10.

(2) A reimbursement under subsection (1) is limited to the amount paid to or through any registrant for the travel services that were not provided.  O. Reg. 26/05, s. 57 (2).

(3) Despite subsection (1), a customer is not entitled to be reimbursed for:

1. Travel services that were not provided because an end supplier, other than a cruise line or airline, became bankrupt or insolvent or ceased to carry on business.

2. A payment to or through a registrant for any travel services that were provided or for which alternate travel services were provided or made available.

3. A payment for travel services that were available, but were not received because of an act or a failure to act on the part of the customer or of another person for whom the travel services were purchased.

4. Counselling fees paid to a travel agent.

5. Travel services that were to be received as a prize, award or goodwill gesture.

6. Travel services that the customer obtained with a voucher, certificate, coupon or similar document that the customer did not pay for.

7. Travel services that the customer did not pay for with cash or by a cheque, credit card or other similar payment method.

8. Insurance premiums.

9. A claim that is based on the cost, value or quality of the travel services or alternate travel services.

10. A claim in connection with which travel services were provided under section 68 or 69.

11. Consequential or indirect damages incurred as a result of the failure to provide the travel services.  O. Reg. 26/05, s. 57 (3).

(4) If the travel services were not provided because an end supplier who is an airline or a cruise line became bankrupt or insolvent or ceased to carry on business, subclauses (1) (b) (i) and (1) (c) (i) do not apply.  O. Reg. 26/05, s. 57 (4).

Reimbursement of customer for trip completion

57.1 (1) If a customer or another person has begun a trip that cannot be completed because travel services have not been provided as a result of the failure of a registrant, the customer is entitled to be reimbursed under subsection (2) if,

(a) the customer paid for the travel services and the payment or any part of it was made to or through a registered travel agent;

(b) the customer has made a demand for payment from,

(i) the registered travel agent and the appropriate registered wholesaler,

(ii) any other person who has received the customer’s money, and

(iii) any other person who may be legally obliged to reimburse or compensate the customer, including a person obliged under a contract for insurance; and

(c) the customer has not been reimbursed by,

(i) those of the registered travel agent and the appropriate registered wholesaler, who under section 25 of the Act are liable to make the reimbursement, because they,

(A) are unable to pay by reason of bankruptcy or insolvency,

(B) have ceased carrying on business and are unwilling to pay, or

(C) have ceased carrying on business and cannot be located,

(ii) any other person who has received the customer’s money, or

(iii) any other person who may be legally obliged to reimburse or compensate the customer, including a person obliged under a contract for insurance.  O. Reg. 161/10, s. 11.

(2) A reimbursement under subsection (1) is limited to the following reasonable expenses related to trip completion:

1. The cost of airfare, car hires or other transportation required in order to,

i. bring the customer or other person to the final destination, or

ii. return the customer or other person home, if this is his or her preference and can be done for a cost that does not exceed the cost of bringing the customer or other person to the final destination.

2. The cost of necessary accommodation and meals for the customer or other person before the trip can be completed.

3. Costs relating to obtaining access to money or making financing arrangements to enable the customer or other person to pay the costs listed in paragraphs 1 and 2.  O. Reg. 161/10, s. 11.

(3) The customer is entitled to be reimbursed for the expenses listed in subsection (2) except if,

(a) the customer or other person has not made every reasonable effort to obtain services that are comparable to those originally purchased by the customer;

(b) the customer or other person has not made every reasonable effort to travel to one of the destinations set out in paragraph 1 of subsection (2) as close as reasonably possible to the originally scheduled travel date;

(c) the claim is for travel services that were not provided because an end supplier became bankrupt or insolvent or ceased to carry on business;

(d) the claim is for amounts listed in subsection (4); or

(e) the customer or other person received notice of arrangements, applicable to him or her, being made through payments directed by the director in accordance with section 69, and did not take advantage of those arrangements, although it was reasonably practicable for the customer or other person to have done so.  O. Reg. 161/10, s. 11.

(4) The amounts mentioned in clause (3) (d) are,

(a) a payment to or through a registrant for any travel services that were provided or for which alternate travel services were provided or made available;

(b) a payment for travel services that were available, but were not received because of an act or a failure to act on the part of the customer or of another person for whom the travel services were purchased;

(c) counselling fees paid to a travel agent;

(d) amounts for travel services that were to be received as a prize, award or goodwill gesture;

(e) amounts for travel services that the customer obtained with a voucher, certificate, coupon or similar document that the customer did not pay for;

(f) amounts for travel services that the customer did not pay for with cash or by a cheque, credit card or other similar payment method;

(g) insurance premiums;

(h) expenses based on the cost, value or quality of the travel services or alternate travel services;

(i) expenses in connection with travel services that were provided under section 68 or 69;

(j) amounts for consequential or indirect damages incurred as a result of the failure to provide the travel services.  O. Reg. 161/10, s. 11.

Reimbursement of travel agent

58. (1) A travel agent is entitled to be reimbursed for money paid by the travel agent to reimburse a customer or to provide alternate travel services to the customer if,

(a) the customer paid for the travel services and the payment or any part of it was made to or through the travel agent;

(b) the travel agent dealt with a travel wholesaler, airline or cruise line, in good faith and at arm’s length;

(c) the travel agent passed all or part of the customer’s money to the travel wholesaler, airline or cruise line; and

(d) the travel services were not provided.  O. Reg. 26/05, s. 58 (1).

(2) Subsection (1) does not apply if the travel agent had acquired the right to the travel services for resale as described in section 46.  O. Reg. 26/05, s. 58 (2).

(3) The travel agent is entitled to be reimbursed only for the portion of the customer’s money that the travel agent passed to the travel wholesaler, airline or cruise line.  O. Reg. 26/05, s. 58 (3).

(4) The travel agent is entitled to be reimbursed only if the customer would otherwise have had a claim against the Fund.  O. Reg. 26/05, s. 58 (4).

(5) The travel agent is not entitled to be reimbursed for any commission or other remuneration, including a service charge, owing on account of the travel services purchased by the customer.  O. Reg. 26/05, s. 58 (5).

Reimbursement of travel agent for trip completion

58.1 (1) A travel agent is entitled to be reimbursed for money paid by the travel agent to reimburse a customer for the expenses described in subsection 57.1 (2), to a maximum of the amount for which the customer would have been entitled to be reimbursed under that subsection, if,

(a) the customer paid for the travel services and the payment or any part of it was made to or through the travel agent;

(b) the travel agent dealt with a travel wholesaler in good faith and at arm’s length;

(c) the travel agent passed all or part of the customer’s money to the travel wholesaler; and

(d) the travel services were not provided.  O. Reg. 161/10, s. 12.

(2) Subsection (1) does not apply if the travel agent had acquired the right to the travel services for resale as described in section 46.  O. Reg. 161/10, s. 12.

(3) The travel agent is entitled to be reimbursed only if the customer would otherwise have had a claim against the Fund.  O. Reg. 161/10, s. 12.

(4) The travel agent is not entitled to be reimbursed for any commission or other remuneration, including a service charge, owing on account of the travel services purchased by the customer.  O. Reg. 161/10, s. 12.

Reimbursement of travel wholesaler

59. (1) A travel wholesaler is entitled to be reimbursed for money paid by the travel wholesaler to reimburse a customer for travel services paid for but not provided or to provide the customer with travel services for which the travel wholesaler has not been paid by the travel agent if,

(a) the travel agent is a registrant;

(b) the travel wholesaler dealt with the travel agent in good faith and at arm’s length;

(c) the travel agent failed to pass all or part of the customer’s money to the travel wholesaler;

(d) the travel wholesaler has had no previous dealings with the travel agent in which the travel agent failed to pass the customer’s money to the travel wholesaler in respect of travel services or was otherwise in default; and

(e) the travel wholesaler has taken reasonable measures in the circumstances to ensure that the travel agent is reliable and financially responsible.  O. Reg. 26/05, s. 59 (1).

(2) The travel wholesaler is entitled to be reimbursed only for the portion of the customer’s money that the travel agent received but failed to pass on to the travel wholesaler.  O. Reg. 26/05, s. 59 (2).

(3) The travel wholesaler is entitled to be reimbursed only if it can reasonably be established that,

(a) the travel agent received the customer’s money; and

(b) the customer would otherwise have had a claim against the Fund.  O. Reg. 26/05, s. 59 (3).

(4) The travel wholesaler is not entitled to be reimbursed for any amount owing from the travel agent that represents a commission or other remuneration, including a service charge.  O. Reg. 26/05, s. 59 (4).

(5) The travel wholesaler is not entitled to be reimbursed for a payment made by credit card if the registrant who processed the payment did not obtain approval for the payment from the customer and from the card issuer, in advance, in accordance with the agreement between the card issuer and the registrant.  O. Reg. 26/05, s. 59 (5).

(6) The travel wholesaler is not entitled to be reimbursed for a payment made by means of a cheque received from a travel agent unless,

(a) the cheque is received by the travel wholesaler seven or fewer days before the commencement of the travel services;

(b) the cheque is promptly deposited by the travel wholesaler in an account maintained in a financial institution referred to in section 26; and

(c) the cheque is returned to the travel wholesaler by the financial institution for reasons of insufficient funds.  O. Reg. 26/05, s. 59 (6).

(7) If subsection (6) applies, the travel wholesaler is not entitled to be reimbursed for any portion of the claim that exceeds the travel wholesaler’s volume of business with the travel agent for a normal week based on established trading patterns within the 12-month period that immediately preceded the customer’s departure.  O. Reg. 26/05, s. 59 (7).

Time for claim

60. (1) A customer or a registrant may make a claim to be reimbursed in writing to the board of directors within,

(a) six months after the relevant registrant or end supplier becomes bankrupt or insolvent or ceases to carry on business, if the claim is made under section 57, 58 or 59; or

(b) six months after the relevant registrant becomes bankrupt or insolvent or ceases to carry on business, if the claim is made under section 57.1 or 58.1.  O. Reg. 161/10, s. 13; O. Reg. 170/16, s. 8.

(2) A claim to be reimbursed that is made after the end of the time period specified in subsection (1) is not valid.  O. Reg. 161/10, s. 13.

Documents and other information

61. (1) The claimant shall provide such documents and other information to the board of directors as the board requires to prove the claim.  O. Reg. 26/05, s. 61 (1).

(2) The board of directors may request that the claimant provide additional documents or other information.  O. Reg. 26/05, s. 61 (2).

(3) If the claimant does not provide the additional documents or other information within 12 months after receiving the request, the claim shall be treated as abandoned, unless the board of directors is satisfied that it would not be fair to do so.  O. Reg. 26/05, s. 61 (3).

Subrogation

62. If the board determines that the claim or part of it is eligible for reimbursement, it may require the claimant to sign any documents that are necessary to transfer the claimant’s interest in a related claim against a third party to the administrative authority so as to subrogate the administrative authority to the claimant’s position.  O. Reg. 26/05, s. 62.

Credit arrangements, no reimbursement

63. (1) A travel agent is not entitled to be reimbursed unless,

(a) the customer paid for the travel services, to or through the travel agent; and

(b) the travel agent passed the customer’s payment on to a travel wholesaler or end supplier.  O. Reg. 26/05, s. 63 (1).

(2) A travel wholesaler is not entitled to be reimbursed unless,

(a) the customer paid for the travel services;

(b) the travel wholesaler received the customer’s payment; and

(c) the travel wholesaler passed the payment on to another travel wholesaler or to an end supplier.  O. Reg. 26/05, s. 63 (2).

Commissions and other remuneration repayable by registrant

64. (1) If a customer has not received any of the travel services paid for, the registrant shall pay the amount of all commissions and other remuneration that the registrant received for the travel services, except for counselling fees,

(a) to the customer; or

(b) to the administrative authority.  O. Reg. 26/05, s. 64.

(2) The administrative authority shall deposit into the Fund all payments that it receives under clause (1) (b).  O. Reg. 79/07, s. 4.

Major event

65. (1) The director may designate one or more events as a major event, having regard to,

(a) the nature of the events;

(b) the number of claims arising or potentially arising out of the events; and

(c) the need to protect the Fund.  O. Reg. 26/05, s. 65 (1).

(2) When the director designates one or more events as a major event, the board of directors may,

(a) defer the payment of any reimbursement under section 67 until it is satisfied that it has received all claims likely to be made with respect to the major event; and

(b) reimburse claims in one or more instalments or only partially reimburse claims, if it is necessary or prudent to do so in order to protect the Fund.  O. Reg. 26/05, s. 65 (2).

Maximum amounts for payments from Fund

66. The following rules apply to payments from the Fund under sections 57.1, 58.1, 67, 68 and 69:

1. A maximum amount of $5,000 for each person whose travel services were paid for by a customer may be paid from the Fund for the following:

i. Reimbursement under section 67.

ii. Immediate departure under section 68.

iii. Trip completion under section 57.1, 58.1 or 69.

2. Despite paragraph 1, but subject to paragraph 5, the maximum amount that may be paid from the Fund under sections 67 and 68 with respect to all claims arising out of an event or a major event is $5 million, in addition to any amount that the administrative authority may recover by way of subrogated claim against a registrant or any other person.

3. Subject to paragraph 4, the maximum amount that may be paid from the Fund for trip completion under section 57.1, 58.1 or 69 is $2 million with respect to all claims arising out of an event or major event.

4. If the $2 million maximum is not sufficient in the case of a particular event or major event the director may, with the approval of the board of directors, direct the administrative authority to make additional payments from the Fund for trip completion under section 57.1, 58.1 or 69.  These additional payments shall not exceed $5 million.

5. Additional payments under paragraph 4,

i. shall be deducted from the $5 million maximum for claims under sections 67 and 68 with respect to the same event or major event, and

ii. take priority over claims under sections 67 and 68 with respect to the same event or major event.  O. Reg. 26/05, s. 66; O. Reg. 161/10, s. 14.

Reimbursement for claims under ss. 57, 57.1, 58, 58.1 and 59

67. (1) A customer or registrant who makes a claim under section 57, 58 or 59 may be reimbursed in accordance with paragraphs 1, 2 and 5 of section 66.  O. Reg. 26/05, s. 67.

(2) A customer or registrant who makes a claim under section 57.1 or 58.1 may be reimbursed in accordance with paragraphs 1, 3, 4 and 5 of section 66.  O. Reg. 161/10, s. 15.

Payments for immediate departure

68. (1) The director may direct the administrative authority to make payments from the Fund in order to enable the immediate departure of a customer or of another person for whom the customer purchased travel services, if,

(a) the customer or other person was preparing for immediate departure and was prevented from departing through no fault of his or her own;

(b) immediate payment from the Fund is necessary to alleviate suffering on the part of the customer or other person; and

(c) it is likely that the customer would be eligible for reimbursement from the Fund.  O. Reg. 26/05, s. 68 (1).

(2) Payments under subsection (1) are governed by paragraphs 1 and 2 of section 66.  O. Reg. 26/05, s. 68 (2).

(3) In deciding whether to make a direction under subsection (1), the director may consider any relevant matters including,

(a) the welfare of the customer or other person;

(b) the practicality of arranging for immediate departure; and

(c) the need to protect the Fund.  O. Reg. 26/05, s. 68 (3).

Payments for trip completion, etc.

69. (1) If a customer or other person is experiencing hardship or inconvenience because he or she has begun a trip that cannot be completed because travel services have not been provided and it is likely that the customer would be eligible for reimbursement from the Fund, the director may direct the administrative authority to make payments from the Fund to pay or assist in paying the cost of,

(a) trip completion for the customer or other person, in accordance with subsection (3); and

(b) necessary accommodation and meals for the customer or other person before the trip can be completed.  O. Reg. 26/05, s. 69 (1).

(2) Payments under subsection (1) are governed by paragraphs 1, 3 and 4 of section 66.  O. Reg. 26/05, s. 69 (2).

(3) For the purposes of subsection (1), trip completion is achieved,

(a) by bringing the customer or other person to the final destination; or

(b) by returning the customer or other person home, if this is his or her preference and can be done for a cost that does not exceed the cost of bringing the customer or other person to the final destination.  O. Reg. 26/05, s. 69 (3).

Registrant liable to reimburse Fund for certain payments

70. A registrant is required to reimburse the Fund for any claims paid to the registrant’s customers under the following circumstances:

1. The registrant is bankrupt or insolvent or has ceased to carry on business.

2. The registrant purchased travel services on the customer’s behalf, extending credit to the customer, and the customer paid the registrant for the travel services after the supplier of the travel services had become bankrupt or insolvent or ceased to carry on business.  O. Reg. 26/05, s. 70.

Hearing by Tribunal

71. (1) If the board of directors determines that a claim or any part of a claim made under section 57, 57.1, 58, 58.1 or 59 is not eligible for reimbursement, the administrative authority shall immediately serve notice of the decision on the claimant.  O. Reg. 26/05, s. 71 (1); O. Reg. 161/10, s. 16.

(2) The claimant is entitled to a hearing before the Tribunal if, within 15 days after being served with notice, the claimant mails or delivers a written request for a hearing to the registrar, the administrative authority and the Tribunal.  O. Reg. 26/05, s. 71 (2).

(3) The notice under subsection (1) shall inform the claimant of the right to a hearing and of the manner and time within which to request the hearing.  O. Reg. 26/05, s. 71 (3).

(4) If a claimant who has been served with a notice under subsection (1) does not require a hearing, the decision of the board of directors becomes final.  O. Reg. 26/05, s. 71 (4).

(5) If the claimant requires a hearing before the Tribunal in accordance with subsection (2), the Tribunal shall appoint a time for and hold the hearing.  O. Reg. 26/05, s. 71 (5).

(6) The Tribunal may,

(a) allow the claim, in whole or in part, and direct the administrative authority to pay the amount allowed from the Fund; or

(b) refuse to allow the claim in whole or in part.  O. Reg. 26/05, s. 71 (6).

(7) The claimant who requested the hearing, the administrative authority and any other person specified by the Tribunal are parties to the hearing.  O. Reg. 26/05, s. 71 (7).

(8) Sections 56 to 69 apply with necessary modifications to any decision of the Tribunal under this section.  O. Reg. 26/05, s. 71 (8).

Administration of Fund

Borrowing and investment powers

72. (1) The administrative authority may borrow money to supplement the Fund.  O. Reg. 26/05, s. 72 (1).

(2) The administrative authority may, from time to time, invest any money of the Fund that is surplus to the administrative authority’s immediate requirements in property in which a trustee is authorized to invest, in accordance with the Trustee Act.  O. Reg. 26/05, s. 72 (2).

Advisors

73. (1) The board of directors may employ, retain or authorize the employment of any counsel, accountant or other expert or of advisors, staff or trade associations as the board may reasonably require to administer and manage the Fund, to investigate claims and to maintain and protect the Fund.  O. Reg. 26/05, s. 73 (1).

(2) The board of directors and the administrative authority may rely and act upon the opinion, advice or information provided by any person mentioned in subsection (1).  O. Reg. 26/05, s. 73 (2).

(3) The remuneration of a person mentioned in subsection (1) may be paid from the Fund.  O. Reg. 26/05, s. 73 (3).

Educational expenses

73.1 (1) The board of directors may incur reasonable expenses for,

(a) promoting public awareness of the Fund and provisions of the Act and this Regulation relating to the protection of payments made by customers for travel services; and

(b) providing information to the public on the procedure for making a claim for reimbursement from the Fund under this Regulation.  O. Reg. 135/07, s. 1.

(2) The board of directors is entitled to have its reasonable expenses described in subsection (1) paid from the Fund.  O. Reg. 135/07, s. 1.

Records, etc. available to director

74. The board of directors shall make available to the director any information, books, records or documents that it keeps respecting the affairs of the Fund.  O. Reg. 26/05, s. 74.

Audit

75. (1) The director may require that the affairs of the Fund be audited.  O. Reg. 26/05, s. 75 (1).

(2) The board of directors shall assist the auditors in performing the audit and shall provide any books, records or information that may be required.  O. Reg. 26/05, s. 75 (2).

76. Omitted (revokes other Regulations).  O. Reg. 26/05, s. 76.

77. Omitted (provides for coming into force of provisions of this Regulation).  O. Reg. 26/05, s. 77.

 

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