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Court Takes Generous Approach to “Free” Ticket Promotion
Published in the July 2010 issue of Transportation Notes - View Article
The Quebec Court recently sent a clear signal to travel agents advertising “free flights” as prizes that all the terms and conditions attaching to such a flight have to be stated up front in a contest or draw.
The case concerned a prize offered by Voyages International, a travel agency (hereinafter “the travel agency”) as part of a Lebanese community festival in Montreal. The prize was advertised as a return ticket to Lebanon. Upon winning the prize, the claimant received a leaflet stating: “Free Ticket to Lebanon”, bearing the logo of the travel agency, and further indicating: “For further detail please drop in at the address [of Voyages International].”
A drawn-out e-mail communication followed the granting of the prize between the claimant and the travel agency. Initially, the claimant sent an e-mail to which a representative of the travel agency responded by providing “some details” including that: the ticket had to be used during low season, with some “blackout dates” applying; the ticket was valid for approximately eight months; the ticket could only be used after a certain date, namely the beginning of low season; and the travel agency would unilaterally determine which airline would provide the flight.
This initial e-mail was not properly sent to the claimant, and the latter placed a number of calls and send a number of additional messages before receiving a further e-mail one month later. This e-mail largely reiterated the conditions set out above, and included additional conditions such as that: the ticket was only valid three months from the departure date; the travel agency required at least 45 days’ notice in order to be able to find a suitable flight; and that the winner had to pay a “ticketing fee” between $75 and $100 and all applicable airport taxes and fees.
The claimant took exception to the payment of service charges, but ultimately sent a further e-mail inquiring whether the ticket could be extended past the expiration date, and booked during August of the following year, which would fall in high season. An employee of the travel agency wrote back confirming that the ticket could be extended into high season of the next year, pending availability, and asked that the claimant confirm the dates when she had them.
A few months later, the claimant contacted the travel agency again providing a number of dates of her availability for travel, all of which fell during high season. At this time, the travel agency advised that a ticket could not be obtained. The airline from which the agency hoped to obtain the ticket was no longer servicing Montreal. Furthermore, the travel agency argued at the hearing that the ticket was expired, and could not be booked during the high season, per the terms indicated to the claimant. The claimant then proceeded to book her own flight, and sued the travel agency for the cost.
The Court unequivocally found in favour of the claimant. The central issue which concerned the court was that the terms attaching to the ticket were not advertised up front. The voucher issued by the travel agency did not contain any restrictions, nor did it indicate that some kind of payment would have to be made by the claimant. The Court was amenable to imposing “reasonable” limits on the offer, such as the fact that, despite the absence of specific terms, the claimant could not request a flight in first class, and for an extended time period. However, restrictions such as the inability to book a flight during high season, as well as that airport fees would have to be paid, and that the ticket could only be used during a limited time period, would have to have been specified in the document pertaining to the raffle. Furthermore, the Court found objectionable the fact that the travel agency had set up the prize in such a way that it would obtain a free ticket from an airline, while the claimant would have to pay airport fees, resulting in the claimant paying “more than half of the value of the ticket” while the travel agency would pay nothing. Finally, the Court also disapproved of the fact that the travel agency equivocated on the terms of its offer indicating that a ticket may be available to the passenger during the high season, depending on availability, but then reneging that position.
Karam v. Voyages International ITA Ltee.,
2010 QCCQ 5488