Loss of Enjoyment (Vacation)

Eltaib and Touram, 2010 ONSC 834 (CanLII)

[23] The issues raised in this lawsuit may be summarized as follows:

1. Was there a contract with Air Canada Vacations?

2. If so, is there privity of contract between the plaintiffs and defendant?

3. If so, does the contract with its clauses limiting liability and disclaimers bind the plaintiffs?

4. What is the impact of the Travel Industry Act, 2002, S.O. 2002, c. 30 on the facts of the case?

5. What representations were made and were they accurate?

6. Was there a breach of contract?

Before dealing with these issues, it is important to note that in spoiled vacation cases, damages for disappointment, distress and out of pocket expenses can be awarded. See, for example, the seminal decision in Jarvis v. Swans Tour Ltd., [1972] 3 W.L.R. 954 (C.A.); and later decisions such as Kent v. Conquest Vacations Co. (2005), 2005 CanLII 2321 (ON SCDC), 194 O.A.C. 302 (Div. Ct.); Sokolsky v. Canada 3000 Airlines Ltd., [2002] O.J. No. 3085 (S.C.J.).

Hogan v Air Canada Vacations, 2018 CanLII 131289 (ON SCSM)

I NEED NOT DETERMINE IF THE DEFENDANT WAS NEGLIGENT, OR CONSIDER WHETHER THE CONSUMER PROTECTION ACT WAS VIOLATED, AS I FIND THAT AIR CANADA VACATIONS BREACHED THE TERMS OF THEIR CONTRACT: THEY PROMISED TO DELIVER A FIVE-STAR HOTEL. THE WAIVER OF LIABILITY WAS NOT BROUGHT TO THE ATTENTION OF THE PLAINTIFFS. IT DID NOT FORM PART OF THE CONTRACT. ON THE PARTICULAR FACTS OF THIS CASE, I FIND THAT THE DEFENDANTS BREACHED THEIR CONTRACT AS THE PLAINTIFFS WERE NOT ASKED TO, NOR DID THEY ACCEPT THE ON-LINE TERMS AND CONDITIONS THAT THEY NEVER SAW. IT IS FOR THAT REASON THAT I FIND FOR THE PLAINTIFFS.

FOLLOWING THE REASONING IN JARVIS v. SWAN, IF I WERE MERELY TO REFUND THE HOLIDAY TO THIS COUPLE, THEY WOULD STILL HAVE LOST A WEEK OF VACATION. IT IS MY INTENTION TO RECOGNIZE THEIR LOSS OF ENJOYMENT. THERE IS NO PSYCHOLOGICAL OR PSYCHIATRIC EVIDENCE TO SUBSTANTIATE ANY STRESS OR EMOTIONAL DAMAGE. THEY RETURNED TO BARRHAVEN, A SUBURB OF OTTAWA, IN THE DEEP OF WINTER. THEY RELIED ON THE AIR CANADA PROMISE OF AN ENJOYABLE HOLIDAY IN A FIVE-STAR HOTEL AND WERE NOT ADVISED OF THE TERMS AND PROVISIONS OF THE HOLIDAY. IN ORDER TO PUT THIS COUPLE BACK IN THE SAME POSITION THEY WOULD HAVE BEEN, HAD THEY NOT PURCHASED THIS HOLIDAY, I GRANT THEM $5,753.98.

COSTS GENERALLY FOLLOW THE CAUSE AND ARE NORMALLY ASSESSED AT 15%. I SEE NO REASON TO DEPART FROM THAT GENERAL RULE HERE. GIVEN THE DISBURSEMENTS OF $1,242.73, COSTS ARE FIXED AT $2,105.83.