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This archived statute consolidation is current to November 2, 1999 and includes changes enacted and in force by that date. For the most current information, click here. |
Contents
Section | ||
Money received by travel agent or wholesaler deemed to be in trust | ||
1 In this Act:
"board" means the Travel Assurance Board appointed under section 11;
"fund" means the Travel Assurance Fund continued under section 16;
"register" means to register under this Act;
"registrar" means the person appointed under section 2 (1) and includes a person authorized in writing by the registrar to perform the duties of the registrar under this Act;
"scheduled travel transportation" means travel transportation supplied on a regular basis at certain fixed times and for which advance booking is not mandatory;
"travel agent" means a person who, in the course of business, sells or otherwise provides to the public travel services supplied by another person;
"travel service" means transportation, accommodation or other service for the use or benefit of a traveller, tourist or sightseer;
"travel wholesaler" means a person who, in the course of business,
(a) supplies the person’s own nonscheduled travel transportation to the public,
(b) purchases or acquires from another person rights to travel services for the purpose of resale, or
(c) deals with travel agents or other travel wholesalers for the sale of travel services supplied by another.
2 (1) The minister must appoint a person under the Public Service Act or designate a person employed in the ministry as Registrar of Travel Services.
(2) The registrar has the powers and must discharge the duties conferred or imposed on the registrar by this Act and the regulations.
(3) The registrar must maintain a current list of all persons
(a) who are registered,
(b) who have been refused registration, or
(c) whose registration has been suspended or cancelled.
(4) The registrar must mail a copy of the list, or the latest additions to it, to any person requesting it.
3 A person must not do any of the following:
(a) act, or hold himself or herself out as being available to act, as a travel agent or travel wholesaler, unless the person is registered;
(b) subject to the regulations, act, or hold himself or herself out as being available to act, as a travel agent or travel wholesaler, other than in the person’s registered name or elsewhere than at or from the person’s registered address or addresses;
(c) advertise, or in any way indicate, that the person is a travel agent or travel wholesaler, other than under the person’s registered name.
4 (1) An application for registration must be made in the prescribed form to the registrar and be accompanied by the prescribed fee.
(2) If an applicant carries on, or intends to carry on, business at more than one location in British Columbia, the applicant must apply for registration for each location.
(3) A registration or renewal of registration expires at midnight on the day before the anniversary of the day in the previous year that it came into effect.
(4) The registrar may
(a) register or renew registration on the terms, conditions or restrictions the registrar considers necessary, and
(b) on giving written notice to a person who is registered, add to or alter terms, conditions or restrictions at any time.
(5) The registrar may grant or renew a registration to be effective on a date subsequent to the date the registrar’s decision is made.
5 (1) In this section, "associate" means a person who
(a) is not registered under this Act, and
(b) receives remuneration from a person who is registered for arranging travel services or performing other services related to the management of the business.
(2) The registrar may exercise the power under subsection (3) if the registrar considers that
(a) the financial responsibility, past conduct or knowledge or experience of
(i) an applicant or person registered,
(ii) the officers or directors of an applicant or person registered that is a corporation, or
(iii) an employee or associate of a person registered
is such that it would not be in the public interest for the applicant or person to be registered or continue to be registered, or
(b) a person referred to in paragraph (a) (i)or (ii) has not complied with a term, condition or restriction established by the registrar under section 4 (4).
(3) In the circumstances referred to in subsection (2), the registrar may,
(a) in relation to an application under section 4, refuse to register or to renew registration, or
(b) in relation to a person who is registered,
(i) cancel the registration, or
(ii) suspend the registration for the period of time and subject to the conditions that the registrar considers necessary.
6 If the registrar refuses to register or suspends or cancels a registration, a person aggrieved by the refusal, suspension or cancellation may appeal it to the Commercial Appeals Commission.
7 (1) Money received from a traveller, tourist or sightseer by a travel agent or travel wholesaler carrying on business in British Columbia is deemed to be held in trust for the person who paid it.
(2) All money held by a travel agent or travel wholesaler in trust under subsection (1)
(a) continues to be the beneficial property of the person who paid it,
(b) must not be used as collateral by the travel agent or travel wholesaler, and
(c) despite any other Act, is not subject to attachment or execution against the travel agent or travel wholesaler.
8 (1) If a traveller, tourist or sightseer
(a) purchases a travel service in British Columbia
(i) through a travel agent, or
(ii) directly from a travel wholesaler,
(b) is entitled to the repayment of money paid for or on account of that travel service because he or she has suffered direct economic loss,
a travel agent or a travel wholesaler who received the money or a part of it is liable jointly and severally with any other person liable for the repayment, to the extent of the amount received by the travel agent or travel wholesaler and to the extent of the direct economic loss.
(2) Subsection (1) does not apply if
(a) the travel agent or travel wholesaler has properly disbursed the money received,
(b) the travel agent or travel wholesaler has acted in good faith and at arm’s length in respect of a person with whom the travel agent or travel wholesaler would, but for this subsection, be jointly and severally liable under subsection (1), and
(c) the person who is entitled to repayment of the money is eligible to make a claim against the fund.
(3) The onus of proving that a travel agent or travel wholesaler has complied with subsection (2) (a) and (b) is on the person alleging it.
(4) Subsection (1) does not apply to a travel agent or travel wholesaler if the person entitled to repayment is a director, officer or employee of that travel agent or travel wholesaler.
9 (1) A registration is not transferable without the written consent of the registrar.
(2) For the purpose of subsection (1), the following are transfers of registration:
(a) a change in the proprietor of a proprietorship;
(b) a change in the members of a partnership;
(c) a material change in the beneficial ownership of the shares of a corporation.
(3) A travel agent or travel wholesaler must, within 14 days after the event, notify the registrar in writing of
(a) a change in the registered address of the travel agent or travel wholesaler, and
(b) in the case of a corporation, a change in the officers or directors.
10 The proprietor of a registered proprietorship, at least one of the partners in a registered partnership and at least one of the directors of a registered corporation must be ordinarily resident in British Columbia.
11 (1) The Travel Assurance Board is continued.
(2) The board consists of the number of members appointed at pleasure by the Lieutenant Governor in Council, one of whom must be designated as chair.
(3) A member
(a) must be reimbursed for reasonable travelling and out of pocket expenses necessarily incurred by the member in the discharge of duties, and
(b) may be paid the remuneration set by the Lieutenant Governor in Council.
(4) The remuneration and expenses of board members referred to in subsection (3) and any expenses of the board associated with holding meetings must be paid out of the fund.
(5) A member of the public service may be appointed as a member of the board but must not receive remuneration for so acting.
12 If a member of the board resigns or the member’s appointment terminates, the member may complete the member’s duties or responsibilities and continue to exercise the member’s powers in relation to a proceeding in which the member participated as a member of the board, until the proceeding is completed.
13 The board and each member has the power, privileges and protection of a commissioner under sections 12, 15 and 16 of the Inquiry Act.
14 (1) Except as otherwise provided in this Act or the regulations, the board has exclusive jurisdiction to hear and decide claims against the fund.
(2) A decision, order or ruling of the board made under this Act in respect of a matter in which jurisdiction is conferred by this Act is final and conclusive, and is not open to question or review in court except on a question of law or excess of jurisdiction.
(3) The Lieutenant Governor in Council may prescribe the practice and procedures of the board.
(4) The board must prepare and file an annual report with the minister.
(5) The minister must lay the annual report before the Legislative Assembly within 90 days next following the end of the fiscal year for which the report is made if the Legislative Assembly is then sitting, otherwise within 15 days after the opening of the next following session.
15 The board may do one or more of the following:
(a) receive and examine evidence and information on oath, by affidavit or otherwise that in its discretion it considers proper, whether or not the evidence is admissible in a court;
(b) make examinations of records and inquiries that it considers necessary;
(c) authorize a person to administer oaths and exercise the powers of the board under paragraphs (a) and (b) and to report the person’s findings to the board.
16 (1) The Travel Assurance Fund is continued.
(2) A travel agent or a travel wholesaler carrying on business in British Columbia must make payments to the fund through the registrar in an amount and at a time prescribed.
(3) For the purposes of subsection (2), the Lieutenant Governor in Council may prescribe different amounts for different classes of travel agents and travel wholesalers.
(4) Payments collected by the registrar must be deposited in a trust account and the proceeds, together with the interest, must be paid to claimants under this Act on the recommendation of the board, with the approval of the minister.
(5) Despite subsection (4), if the registrar retains a person to provide professional services relating to an inspection or investigation under section 23, the cost of the services may be paid for out of the fund and the Minister of Finance and Corporate Relations must, on the requisition of the minister, pay for those services from money in the fund.
(6) If there is insufficient money in the Travel Assurance Fund to pay for claims recommended by the board and approved by the minister, or the board and the minister consider that there are imminent potential claims that will result in there being insufficient money in the Travel Assurance Fund, the Minister of Finance and Corporate Relations, with the approval of the Lieutenant Governor in Council, may provide an advance or loan from the consolidated revenue fund to the Travel Assurance Fund to enable the payment of claims.
(7) An advance or loan under subsection (6) must be repaid to the consolidated revenue fund on the terms and conditions, including interest, specified by the Minister of Finance and Corporate Relations and approved by the Lieutenant Governor in Council.
17 (1) Subject to this Act and the regulations, a person who has suffered direct economic loss because of any of the following may apply for compensation from the fund up to the amount permitted by the regulations:
(a) the insolvency or bankruptcy of a travel agent or a travel wholesaler registered under this Act;
(b) failure to collect money ordered by a court to be paid by a travel agent or travel wholesaler registered under this Act after reasonable execution proceedings have been attempted;
(c) other prescribed circumstances.
(2) A travel agent or a travel wholesaler registered under this Act has a claim against the fund in prescribed circumstances.
(3) An application under this section must be filed with the registrar within one year after the loss occurred.
(4) If a person has entered default judgment or judgment by consent against a travel agent or travel wholesaler and has applied for compensation from the fund under this section, the board must not compensate the person unless satisfied the claim is proper and justified.
18 If money is disbursed from the fund to a person
(a) the person must repay to the fund money or the value of property that the person subsequently receives on account of the claim that was the subject of the person’s application to the fund, and
(b) the government has a cause of action against the person for that amount.
19 (1) Money recovered by the government under this Act in reimbursement of money paid out of the fund is part of the fund.
(2) Despite subsection (1), the Lieutenant Governor in Council may order the board to pay all or part of the money to the person who made the claim, after deducting all of the following:
(a) the amount paid out of the fund in respect of the claim;
(b) interest on the amount in paragraph (a) at the prescribed annual rate from the date of payment;
(c) costs of recovery including solicitor and client costs.
20 Subject to the regulations, money must not be paid from the fund unless the claimant has assigned to the government all the claimant’s rights under the claim that gives rise to the application.
21 (1) The minister may, instead of waiting for a claim to be made against the fund, make arrangements to supply an alternate travel service if a person who would be eligible to make a claim against the fund
(a) has left his or her normal place of residence and is stranded as a result of, or
(b) did not, in the opinion of the minister, receive adequate advance notice of
the inability or refusal of a person to supply a travel service for which payment was made to a travel agent or travel wholesaler.
(2) Despite section 20, the cost of alternate travel service provided by the minister under subsection (1) may, be paid for out of the fund.
(3) If the minister arranges an alternate travel service, all rights are deemed to have been assigned to the government with respect to the travel service for which the alternate travel service was substituted.
22 (1) A person who is registered must keep prescribed records of the person’s business transactions and financial affairs, and must file with the registrar annually and at the other times the registrar requires a financial statement which must
(a) be either audited or unaudited, as the registrar determines,
(b) be certified by the person registered or an officer or partner of the person registered, and
(c) contain information required by the registrar.
(2) The records required to be kept under subsection (1) must be kept in a place acceptable to the registrar.
(3) The information in a financial statement filed under this section is confidential.
(4) Except to a person legally entitled, a person must not communicate information or allow access to or inspection of the financial statement.
23 (1) The registrar may at any reasonable time enter the business premises of a travel agent or travel wholesaler to make an inspection to ensure that this Act and the regulations are being complied with.
(2) If, during an inspection under this section, the registrar finds that a person registered is failing to properly keep the records required under section 22 and the registrar considers the failure is not due to inadvertence, the registrar may require the person to pay the cost of a financial inspection or audit.
(3) If, on reasonable and probable grounds, the registrar believes that a person has
(a) contravened, is contravening or is about to contravene this Act or the regulations or an order made under this Act, or
(b) committed an offence under the Criminal Code or the law of any jurisdiction that is relevant to the person’s fitness for registration under this Act,
the registrar may appoint a person to make a full investigation of the matter.
(4) A person appointed under subsection (3) must proceed with the investigation and report the results to the registrar.
(5) A person making an investigation under this section may inquire into and examine the business and affairs of the person being investigated, and, without restricting this power, may
(a) on production of his or her appointment, enter at any reasonable time the business premises of the person and inspect records relevant to the investigation and, subject to subsection (10), retain any that may be required for evidence, and
(b) inquire into
(i) negotiations, transactions, loans or borrowings made by, on behalf of or in relation to the person, or
(ii) property, assets or things owned, acquired or disposed of by the person or any person acting on the person’s behalf,
that are relevant to the investigation.
(6) A person making an investigation under this section has the powers, privileges and protection of a commissioner under sections 12, 15 and 16 of the Inquiry Act.
(7) A person must not obstruct a person making an investigation under this section, or withhold from him or her, or conceal or destroy, a record relevant to the investigation.
(8) If a court is satisfied, on an application made without notice to anyone by the registrar or a person making an investigation under this section, that
(a) an investigation has been authorized and that the registrar or the person applying is authorized or appointed to make it, and
(b) there are reasonable grounds for believing there is, in a building, dwelling house, receptacle or place, a record relating to the person whose affairs are being investigated and to the subject matter of the investigation,
the court may, whether or not an inspection has been made or attempted under subsection (5) (a), make an order authorizing the person making the investigation, together with any peace officers he or she calls on to assist, to enter, if necessary by force, and search the building, dwelling house, receptacle or place described in the order for the records and to examine them.
(9) An entry and search under this section must be made between 8 a.m. and 8 p.m., unless the court otherwise orders.
(10) A person who makes an investigation under this section may, on giving or leaving a receipt for it, remove a record examined under this section, for the purpose of examining or making copies or tests of it.
(11) A record removed under this section must be promptly returned to the person whose affairs are being investigated, unless required for evidence in a proceeding under this Act, in which case the registrar must, on request and without charge, provide to that person copies of the record.
(12) A copy of a record obtained during an investigation under this section, certified to be a true copy by the person making the investigation, is admissible in evidence in a proceeding as proof of the original record and of its contents without proof of the signature or appointment of the person certifying it.
24 If the registrar believes that a person may have contravened this Act or the regulations, the registrar must
(a) take whatever proceedings are required or permitted by this Act or the regulations, and
(b) if the registrar has ordered an investigation under section 23, send to the minister a complete report of the investigation, including the report made to the registrar and the action taken by the registrar.
25 (1) Even if an investigation has been made under section 23, the minister may, by order, appoint a person to investigate any matter to which this Act applies.
(2) For the purposes of an investigation under subsection (1), the person making it has the powers, privileges and protection of a commissioner under sections 12, 15 and 16 of the Inquiry Act.
26 (1) A person employed under this Act, including a person making an inquiry, inspection, examination, test or investigation,
(a) must preserve secrecy in respect of all matters that come to the person’s knowledge in the course of the person’s duties, and
(b) must not communicate information to another person except
(i) as may be required or permitted under this Act or the regulations,
(ii) to counsel or to the court in a proceeding under this Act or the regulations,
(iii) to a ministry or agency of a government engaged in the administration of enactments similar to this Act or for the general protection of travellers, tourists or sightseers, or
(iv) with the consent of the person to whom the information relates.
(2) Except for a proceeding under this Act, a person employed under this Act must not be required in a civil proceeding to give testimony or to produce a record respecting information obtained by the person in the course of the person’s duties.
27 (1) If the registrar has ordered an investigation of a person under this Act and the registrar believes that it is necessary to protect individuals dealing with that person, the registrar may, in writing or by telegram
(a) order
(i) a person having on deposit, under the person’s control or for safekeeping, assets, trust funds or other property of the person being investigated, or
(ii) a debtor of the person being investigated,
to hold the assets, trust funds or other property of, or money owing to, that person, in trust for a receiver, liquidator or trustee to be appointed under this or any other Act or law, or
(b) order the person being investigated to refrain from withdrawing assets, trust funds or other property that are on deposit with, under the control of or in the safekeeping of another person, unless the registrar consents in writing to the release of all or part of them.
(2) The registrar may revoke in writing an order made under this section.
(3) Instead of making an order under this section, the registrar may accept from the person being investigated any of the following in a form and with terms that the registrar determines under the Bonding Act:
(a) a personal bond, together with collateral security;
(b) a bond of a guarantee company approved by the registrar;
(c) a bond of a guarantor, other than a guarantee company, together with collateral security.
(4) A person who receives an order from the registrar under this section may,
(a) if in doubt as to the application of the order to assets, trust funds or other property on deposit with the person, under the person’s control or in the person’s safekeeping, or
(b) if a person not named in the order claims a right, title or interest in the assets, trust funds or other property,
pay or deliver those assets, trust funds or other property into a court and, on so doing is discharged from liability to the extent of that payment or delivery.
28 (1) If an investigation of a person has been ordered under this Act, the registrar may apply to a court for the appointment of a receiver, receiver manager, liquidator or trustee for the property of that person.
(2) On an application under this section the court may appoint a receiver, receiver manager, liquidator or trustee for the property of the person if it is satisfied the appointment is in the best interests of any of the following:
(a) the creditors of that person;
(b) persons whose property in is the possession of or under the control of that person;
(c) travellers, tourists or sightseers protected by this Act.
29 (1) The minister, the registrar, the board members, their agents, officers, employees, representatives and persons acting on their behalf are not liable in their personal or official capacities for loss or damage suffered by a person by reason of anything done or omitted to be done in good faith in the exercise or purported exercise of powers given by this Act.
(2) Subsection (1) does not relieve the government from any liability it may have for loss or damage suffered by a person referred to in subsection (1).
30 Unless otherwise specifically provided, a notice or order required to be given, delivered or served under this Act is sufficiently given, delivered or served if delivered personally or sent by registered mail addressed to the person at the person’s last known address.
31 (1) If a person is not complying with this Act, the regulations or an order made under this Act, the registrar may apply to the Supreme Court for an order directing that person to comply with the provision or order, and the court may make the order it considers proper.
(2) Subsection (1) applies despite the imposition of a penalty for the failure to comply, and in addition to other rights the registrar may have.
32 (1) The minister may appoint an industry council to assist the registrar in carrying out the registrar’s duties.
(2) A member of the industry council is entitled to reasonable and necessary expenses incurred in the course of fulfilling the person’s responsibilities as a member of the council.
(3) A member of the industry council is deemed to be
(a) a person entitled to information in a financial statement under section 22 (3), and
(b) a person employed under this Act for the purposes of section 26.
33 (1) A person who
(a) contravenes section 3, 9 (3), 10, 16 (2), 22 (1) or 23 (7), or an order made under section 27 (1) or 31,
(b) refuses or fails to provide information as required under this Act, or provides false information, or
(c) commits an offence under the regulations,
is liable to a fine of not more than $5 000 or to imprisonment not longer than one year, or to both.
(2) Despite subsection (1) if a corporation is convicted of an offence under subsection (1), the corporation is liable to a fine of not more than $25 000.
(3) If a corporation commits an offence under subsection (1), a director, officer, or other person who authorizes, permits or acquiesces in the offence also commits the offence and is, even if the corporation is convicted, liable for the fine or imprisonment in subsection (1).
34 A prosecution under this Act must not be commenced more than 2 years after the date on which the subject matter of the prosecution arose.
35 This Act applies despite an agreement to the contrary, and does not restrict, limit or derogate from other rights of a consumer, as defined in the Trade Practice Act, under any other law.
36 (1) A statement as to any of the following purporting to be signed by the registrar is, without proof of the office or signature of the registrar, receivable in evidence as proof in the absence of evidence to the contrary of the facts stated in it, for all purposes in a proceeding:
(a) the registration of a person, or its lack;
(b) the filing of a document or material required or permitted to be filed with the registrar, or its lack;
(c) the time when the facts on which proceedings are based first came to the knowledge of the registrar;
(d) any other matter pertaining to registration, filing or the lack of them.
(2) A document under this Act purporting to be signed by the minister, or a certified copy, is receivable in evidence in a proceeding as proof, in the absence of evidence to the contrary, that the document is signed by the minister without proof of the office or signature of the minister.
37 The Lieutenant Governor in Council may by order exempt a person from all or part of this Act or the regulations.
38 (1) The Lieutenant Governor in Council may make regulations referred to in section 41 of the Interpretation Act.
(2) Without limiting subsection (1), the Lieutenant Governor in Council may make regulations as follows:
(a) exempting a class of persons from all or part of this Act or the regulations;
(b) giving the registrar the power to by order exempt a person or by regulation exempt a class of persons from the provisions of this Act or the regulations that are specified by the Lieutenant Governor in Council;
(c) defining "direct economic loss" for the purpose of section 17;
(d) regulating the management and operation of branch offices of travel agents and travel wholesalers;
(e) requiring information that must be provided under this Act to be verified by affidavit;
(f) prescribing classes of persons who are eligible or who are not eligible for compensation from the fund under section 17, including specifying classes of persons based on
(i) residency,
(ii) whether the person is an individual or a corporation,
(iii) place where travel services are purchased,
(iv) place where travel services are used, and
(v) status of the travel agent or travel wholesaler as a subscriber to the fund.