O. Reg. 161/10: GENERAL


Published: 2010-05-14

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ontario regulation 161/10

made under the

travel industry Act, 2002

Made: May 12, 2010
Filed: May 14, 2010
Published on e-Laws: May 17, 2010
Printed in The Ontario Gazette: May 29, 2010


Amending O. Reg. 26/05

(General)

1. (1) Clause 12 (1) (a) of Ontario Regulation 26/05 is amended by striking out “(2) or (3)” and substituting “(2), (3) or (4)”.

(2) Subsection 12 (3) of the Regulation is revoked and the following substituted:

(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).

(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.

2. (1) Subclause 15 (2) (a) (i) of the Regulation is revoked and the following substituted:

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

(2) Clause 15 (2) (b) of the Regulation is amended by striking out “the Canadian Institute of Travel Counsellors” at the end and substituting “the administrative authority”.

(3) Section 15 of the Regulation is amended by adding the following subsection:

(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.

(4) Clauses 15 (3) (a) and (b) of the Regulation are revoked and the following substituted:

(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.

3. Subsection 16 (2) of the Regulation is amended by striking out “the Canadian Institute of Travel Counsellors” and substituting “the administrative authority”.

4. The Regulation is amended by adding the following section:

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.

(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.

(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.

5. (1) The French version of clauses 22 (2) (a) and (b) of the Regulation is amended by striking out “d’un comptable public” wherever that expression appears and substituting in each case “d’un expert-comptable”.

(2) The French version of the following provisions of the Regulation is amended by striking out “du comptable public” wherever that expression appears and substituting in each case “de l’expert-comptable”:

1. Clause 22 (3) (a).

2. Clause 22 (4) (a).

3. Clause 22 (5) (a).

(3) Section 22 of the Regulation is amended by adding the following subsection:

(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).

6. The Regulation is amended by adding the following section:

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.

7. (1) Subsection 28 (1) of the Regulation is amended by striking out “the registrant’s sales in Ontario” and substituting “the money that the registrant receives from customers for travel services”.

(2) Section 28 of the Regulation is amended by adding the following subsection:

(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.

8. (1) Clause 38 (1) (a) of the Regulation is amended by striking out “the name and address, if known” and substituting “the name, if known”.

(2) Clause 38 (1) (h) of the Regulation is revoked and the following substituted:

(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;

9. (1) Subsection 48 (1) of the Regulation is amended by adding the following paragraph:

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) Paragraphs 2 and 3 of subsection 48 (1) of the Regulation are revoked and the following substituted:

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.

(3) Section 48 of the Regulation is amended by adding the following subsection:

(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.

10. Subclause 57 (1) (c) (i) of the Regulation is revoked and the following substituted:

(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,

11. The Regulation is amended by adding the following section:

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.

(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.

(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.

(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.

12. The Regulation is amended by adding the following section:

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.

(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.

(3) The travel agent is entitled to be reimbursed only if the customer would otherwise have had a claim against the Fund.

(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.

13. Section 60 of the Regulation is revoked and the following substituted:

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) three 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.

(2) A claim to be reimbursed that is made after the end of the time period specified in subsection (1) is not valid.

14. (1) Section 66 of the Regulation is amended by striking out the portion before paragraph 1 and substituting the following:

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:

. . . . .

(2) The following provisions of the Regulation are amended by striking out “section 69” wherever that expression appears and substituting in each case “section 57.1, 58.1 or 69”:

1. Subparagraph 1 iii of section 66.

2. Paragraph 3 of section 66.

3. Paragraph 4 of section 66.

15. Section 67 of the Regulation is amended by adding the following subsection:

(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.

16. Subsection 71 (1) of the Regulation is amended by striking out “section 57, 58 or 59” and substituting “section 57, 57.1, 58, 58.1 or 59”.

17. This Regulation comes into force on the later of July 1, 2010 and the day it is filed.

 

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