B.C. mother and daughter lose claim against Sunwing, Flight Centre who told them to read the small print - InfoNews

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B.C. mother and daughter lose claim against Sunwing, Flight Centre who told them to read the small print

September 24, 2020 - 7:00 AM

A B.C. mother and daughter will have to suck up the extra cost of switching to a beachfront hotel during a Mexican vacation after the small claims court sided with the tour operator and travel agent and told them they should have read the small print.

Hailey Birnie, and her mother Cynthia Birnie, filed a claim with the Civil Resolution Tribunal against Sunwing Vacations, Flight Centre and the individual travel agent who sold them the holiday, claiming $2,688 in expenses due to lost vacation time which they incurred when switching to a better hotel because the facilities they were promised – and thought they'd paid for – didn't exist.

The three defendants in the case all pass the blame onto each other and state they can't guarantee the accuracy of the information they give out.

According to the Civil Resolution Tribunal decision, Sept. 22, Hailey and Cynthia booked a seven-night all-inclusive vacation to Huatulco, Mexico in March 2018. They thought they were paying for an "all-inclusive" package at a Holiday Inn Huatulco that included buffet-style meals, non-motorized water sports and a beach, but upon arriving at the Mexican hotel they found none of those amenities existed.

After two days, the mother and daughter moved hotels because the Holiday Inn didn't have the amenities they had been promised when booking the vacation. The move, and upgrade, cost them $1,862.

When they returned to Canada they filed a small claims suit stating Sunwing and Flight Centre had misrepresented the vacation package.

While Sunwing admitted its website advertised the missing amenities it argued there was no "intentional misrepresentation" and the issue was not significant enough to warrant compensation.

The Birnies submitted a screenshot which clearly stated the hotel included all meals buffet-style, non-motorized water sports and an "included beach." Sunwing in turn pointed to a section in its brochure headed "Accuracy of Information."

"The (terms and conditions) say Sunwing cannot be responsible for any inaccuracies or omissions and its provided information is a 'guideline only' and should be verified directly with other available sources," tribunal vice-chair Shelley Lopez says in the decision.

The decision says Sunwings terms and conditions state any features that are temporarily unavailable, or have been permanently withdrawn for any reason, have no cash value and are non-refundable.

"Sunwing says as a tour operator it has no control over independent service providers like the Holiday Inn," the decision says.

Somewhat surprisingly Lopez then points the finger at the Birnies asking why they did not verify the Holiday Inn’s offerings "through other sources like the Holiday Inn’s own website."

"I find the (terms and conditions) made it clear that advertised amenities were not guaranteed and that Sunwing was not responsible for a change in a supplier’s services," the tribunal vice-chair said. "I find the inaccuracies in Sunwing’s advertising are accounted for by the terms and conditions disclaimer that the advertising is a guideline only."

The decision says while the travel agent and Flight Centre did try to accommodate the mother and daughter in moving them to a better hotel and in getting compensation from Sunwing they also weren't responsible for the broken promises.

"Flight Centre relies on the information provided by the travel suppliers to assist the Birnies to make an informed decision, but that Flight Centre cannot guarantee the accuracy of that information," reads the decision.

Although neither Sunwing, the Holiday Inn or Flight Centre could "guarantee the accuracy" of the information they put out, with the exception of looking at the companies websites, the decision does not say how a person in Canada is supposed to verify the amenities of a hotel in Mexico.

"I find the inaccuracies in Sunwing’s advertising are accounted for by the terms and conditions disclaimer that the advertising is a guideline only. I find this means there was ultimately no misrepresentation in the advertising," the tribunal vice-chair said. "In summary, on balance I find Sunwing is not liable for the inaccurate representation that the Holiday Inn had non-motorized water sports and buffet-style meals, given the terms and conditions."

Ultimately, the tribunal dismissed the claim leaving the mother and daughter almost $2,000 out of pocket.

To contact a reporter for this story, email Ben Bulmer or call (250) 309-5230 or email the editor. You can also submit photos, videos or news tips to the newsroom and be entered to win a monthly prize draw.

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