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B.C. Reg. 296/2004, deposited June 30, 2004, pursuant to the BUSINESS PRACTICES AND CONSUMER PROTECTION ACT [Sections 129, 131 to 133, 143, 144, 148, 194, 198 and 199]. Order in Council 658/2004, approved and ordered June 30, 2004.
On the recommendation of the undersigned, the Administrator, by and with the advice and consent of the Executive Council, orders that, effective July 4, 2004, the attached Travel Industry Regulation is made.
— R. COLEMAN, Minister of Public Safety and Solicitor General; C. CLARK, Presiding Member of the Executive Council.
TRAVEL INDUSTRY REGULATION
1 In this regulation:
"Act" means the Business Practices and Consumer Protection Act;
"credit card" has the same meaning as in section 57 [definitions] of the Act;
"fund" means the Travel Assurance Fund;
"licence" means a licence, as defined in section 1 [definitions] of the Act, to act or hold out as a travel agent or travel wholesaler.
2 The following classes of persons are exempt from the requirement to be licensed as a travel agent or travel wholesaler:
(a) a person providing sightseeing tours of a duration of not more than one day if the person is not providing any other travel services;
(b) a person providing tour guide services or sightseeing attractions, or both, if the person is not providing any other travel services;
(c) a common carrier if the common carrier is not providing tours of a duration of more than one day or any other travel services;
(d) a common carrier providing scheduled interline transportation if the carrier is not providing any other travel services;
(e) a person, who is an agent of a person licensed or whose licence is continued under the Passenger Transportation Act, selling bus travel services if the person is not providing any other travel services;
(f) an operator of a motel, hotel, resort or other accommodations who, as incidental to the operator's primary business, offers local travel services that may be purchased from another person.
3 An applicant for a licence must meet the following qualifications:
(a) if the applicant is an individual, the individual
(i) is at least 19 years of age,
(ii) is ordinarily resident in British Columbia, and
(iii) in the opinion of the director, has the experience and knowledge of travel services that affords reasonable grounds to believe that the individual will be able to operate a travel service business;
(b) if the applicant is a corporation,
(i) the corporation has a net worth of at least $15 000,
(ii) one of the following is ordinarily resident in British Columbia:
(A) a director of the corporation;
(B) an individual who holds a position of authority and responsibility with the corporation, is appointed by the corporation for the purposes of this section and is satisfactory to the director, and
(iii) in the opinion of the director, an officer or director of the corporation has the experience and knowledge of travel services that affords reasonable grounds to believe that the corporation will be able to operate a travel service business;
(c) if the applicant is a partnership,
(i) at least one of its partners is ordinarily resident in British Columbia, and
(ii) in the opinion of the director, a partner in the partnership has the experience and knowledge of travel services that affords reasonable grounds to believe that the partnership will be able to operate a travel service business;
(d) if the applicant is not a corporation, the person has, in the opinion of the director, sufficient net worth to reasonably be expected to be able to operate a travel service business;
(e) in the opinion of the director, the person has sufficient working capital to reasonably be expected to be able to operate as a travel service business.
4 Subject to any applicable fees set by the administrative authority, a person must pay a licence application fee of $400 to the director and submit the fee with the person's application for a licence.
5 (1) A travel agent and travel wholesaler must have a licence for each location from which the travel agent or travel wholesaler conducts business in British Columbia.
(2) Subsection (1) does not apply to a travel agent or travel wholesaler who occasionally conducts business at a trade fair, exhibition, hotel or other temporary location or event approved by the director.
6 The director may issue a licence for a term not exceeding 3 years.
7 The director may issue a licence to be effective on a date subsequent to the date the director's decision to issue the licence is made.
8 A licensee must prominently display the licensee's licence in the location for which the licence is issued.
9 (1) A licensee must not
(a) carry on business from a place that is not a permanent place of business or from a private dwelling unless authorized by the director,
(b) carry on business from a place that is not open to the public during normal business hours,
(c) carry on business in a name other than the name in which the licensee is registered,
(d) carry on business in a name that indicates the licensee has a sponsorship, approval, status, affiliation or connection that the licensee does not have, or
(e) knowingly carry on business in British Columbia with a travel agent or travel wholesaler in British Columbia who is not licensed unless the travel agent or a travel wholesaler is exempt from licensing.
(2) A licensee must ensure that the licensee and the licensee's employees and agents do not use a personal credit card to pay for travel services on behalf of a customer.
10 (1) A licensee must report the following information to the director in writing within 14 days of the change occurring:
(a) a change of address for the location from which the licensee conducts business in British Columbia;
(b) if the licensee is a corporation,
(i) a change in the senior officers, as defined in the Business Corporations Act, of the corporation, and
(ii) a material change in the beneficial ownership of the shares of the licensee.
(2) If a licensee ceases to engage in business with another licensee because the other licensee has failed to fulfill a financial commitment made to the licensee, the licensee must report that cessation to the director.
(3) A licensee must report to the director any removal of airline ticket stock by the person who provided the ticket stock to the licensee.
11 (1) Subject to subsection (2), a licensee must maintain in British Columbia proper records of account that set out all financial, commercial and corporate transactions of the licensee.
(2) A licensee whose head office is not in British Columbia must, on the request of the director, make available to the director the records of account referred to in subsection (1).
12 (1) A licensee must submit a financial statement to the director
(a) for the licensee's previous calendar year or other period approved by the director, within 90 days of the end of the calendar year or other period, and
(b) when requested by the director and for the period requested by the director.
(2) The financial statement must contain the information required by the director and must be certified as being correct
(a) if the licensee is a corporation, by a majority of the directors of the corporation,
(b) if the licensee is a partnership, by all the partners of the partnership, or
(c) if the licensee is an individual, by the individual.
(3) The director may require the financial statement to be an audited statement if the licensee's total gross sales in the calendar year or other period from acting as a travel agent or travel wholesaler in British Columbia exceed $5 000 000.
(4) A person who holds more than one licence may submit one financial statement that contains the information in respect of all licences held by the person.
13 (1) A licensee must establish and maintain a trust account with a savings institution in British Columbia.
(2) A trust account established by a licensee must be designated as a "travel trust account".
(3) A licensee must deposit all money that is received in the course of business for travel services into the licensee's trust account.
(4) When a licensee receives money that must be deposited into a trust account, the licensee must provide the customer with a receipt that includes the following information:
(a) the date the money is received;
(b) the customer's name and address;
(c) the amount received and any outstanding balance;
(d) a description of the services to be rendered and expenditures to be paid to which the money received relates;
(e) that the money will be deposited into a trust account;
(f) the conditions for the reimbursement to the customer of any money received.
(5) A licensee may disburse money received from a customer from the licensee's trust account for only the following purposes:
(a) for services to be rendered for the customer;
(b) for expenditures on behalf of the customer;
(c) to reimburse expenditures incurred on behalf of the customer;
(d) to refund an amount to the customer;
(e) if the provider of the travel services for which the licensee received the money from the customer has been paid, money due to the licensee.
(6) A licensee must keep current records of
(a) all money deposited into a trust account,
(b) all disbursements from a trust account,
(c) the trust account balance, and
(d) the balance for each customer for whom money has been deposited into the trust account.
(7) The director may require a licensee to have the licensee's trust account records audited.
14 (1) A licensee must provide security to the director that is of the type and in the form acceptable to the director
(a) when the licensee applies for an initial licence, and
(b) within 90 days of the end of the calendar year or other period approved under section 12.
(2) If the licensee is a travel agent, the security provided must be in the amount that is the total of
(a) $15 000, and
(b) $5 000 for each location from which the travel agent conducts business in British Columbia other than the travel agent's principal location.
(3) If the licensee is a travel wholesaler, the licensee must provide security in the amount set out in the following table in respect of all travel wholesaler licences held by that licensee:
| Item | Licensee's Total Sales in the previous calendar year from acting as a travel wholesaler |
Amount of Security |
|---|---|---|
| 1 | $0 to $1 999 999.99 | $15 000 |
| 2 | $2 000 000 to $2 999 999.99 | $35 000 |
| 3 | $3 000 000 to $4 999 999.99 | $50 000 |
| 4 | $5 000 000 to $6 999 999.99 | $70 000 |
| 5 | $7 000 000 to $14 999 999.99 | $100 000 |
| 6 | $15 000 000 to $24 999 999.99 | $125 000 |
| 7 | more than $24 999 999.99 | $150 000 |
(4) Despite subsection (3), the director may require a licensee to provide security greater than the amount required under that subsection.
(5) The director must return the security to the person who provided the security
(a) 6 months after the person's licence is cancelled if there are no outstanding claims against the security, or
(b) after a final decision has been made in respect of all claims against the security and there is no further opportunity for reconsideration or review.
(6) The director may realize on the security if the licensee fails to makes any required payments to the fund under section 136 [contributor must repay compensation fund for claims caused by contributor] of the Act.
Part 3 — Travel Assurance Fund
15 In this Part, "contributor" means a licensee designated to make payments to the fund under section 16.
16 For the purposes of the definition of "contributor" in section 129 [definition — compensation funds] of the Act, in relation to the fund, licensees are designated to make payments to the fund.
17 (1) In this section, "semi-annual period" means
(a) subject to paragraph (c), the period from the date the contributor's initial licence is issued to the date 6 months after the date the licence is issued,
(b) subject to paragraph (c), each successive 6 month period after the end of the period referred to in paragraph (a) that the contributor is licensed, and
(c) if a contributor's licence is cancelled or expires during a period referred to in paragraph (a) or (b), the period from the end of the period referred to in paragraph (a) or (b) to the date the licence is cancelled or expires.
(2) Subject to any applicable amount set by the administrative authority, a contributor to the fund must make payments to the fund in the following amounts in accordance with subsection (3):
(a) $300;
(b) an amount equal to 0.05% of the contributor's gross sales from acting as a travel agent or travel wholesaler for each semi-annual period.
(3) The contributor must pay the amount referred to in subsection (2) (a) to the fund when the person applies for a licence.
(4) The contributor must pay the amount referred to in subsection (2) (b) for each semi-annual period within 40 days of the end of the month in which the semi-annual period ends.
(5) Subsections (2) (b) and (4) do not apply to a contributor, in respect of all licences held by the contributor, if
(a) the book value of the fund is at least $1 000 000, and
(b) the contributor has paid amounts under subsection (2) (b) for successive semi-annual periods totalling 3 years.
18 (1) A person may apply to the director for compensation from the fund in the following prescribed circumstances:
(a) the person
(i) has suffered a loss as a result of paying a contributor for travel services that were not provided pursuant to a contract for travel services,
(ii) is not a travel agent or travel wholesaler, and
(iii) is not submitting a subrogated claim;
(b) if the person is a contributor,
(i) the person received money from a customer pursuant to a contract for travel services,
(ii) the person properly disbursed the money to the travel service provider contracted to provide the travel services for the customer,
(iii) the travel services contracted for were not provided to the customer,
(iv) the person has suffered a loss, other than a loss of commissions, as a result of, at the licensee's own expense, reimbursing the customer or arranging for alternate travel services because the travel services contracted for were not provided to the customer, and
(v) the person has acted in good faith with and at arm's length from the travel service provider contracted to provide the travel services for the customer;
(c) if the person is a contributor, the person
(i) has entered into a contract for travel services by virtue of the fact that a customer has paid money to another contributor,
(ii) has suffered a loss, other than a loss of commissions, as a result of, at the licensee's own expense, reimbursing the customer or providing the contracted travel services after not receiving some or all of the money paid to the other contributor, and
(iii) has acted in good faith with and at arm's length from the other contributor.
(2) The amount of compensation payable in respect of a loss referred to in subsection (1) is the amount paid by the person suffering the loss to the contributor for the travel services that were not provided.
19 A person must file an application with the director claiming compensation from the fund within 6 months after the date the loss occurred.
20 The director may defer the payment of claims until the director is satisfied that
(a) if the person applies for compensation under section 18 (1) (a), the person has
(i) demanded payment of the amount paid referred to in section 18 (1) (a) (i) from the contributor and given the contributor 30 days to honour the demand,
(ii) made reasonable efforts to obtain compensation from
(A) if the travel services were paid for with a credit card, the credit card issuer, as defined in section 94 of the Act,
(B) an insurer, and
(C) other available sources, and
(iii) made reasonable efforts to collect on a judgment, if the person has obtained a judgment in respect of the loss,
(b) all claims likely to be made in respect of a contributor have been filed, and
(c) all claims likely to be made in respect of an event have been filed.
21 (1) For the purposes of section 133 (1) (b) [payments from compensation fund] of the Act, a person is in an emergency circumstance if
(a) as a result of the failure to receive the travel services contracted for, the person is stranded away from the person's normal place of residence,
(b) the person did not have adequate advance notice that the person would not receive the travel services contracted for, and
(c) money or facilities are necessary immediately in order to alleviate the inconvenience of the person.
(2) For the purposes of section 133 (1) (b) of the Act, the director must pay an amount not exceeding $5 000 to remedy the emergency circumstance.
22 (1) The maximum amount that may be paid from the fund to a claimant in respect of a claim is $5 000 for each person covered by the claim.
(2) The maximum amount that may be paid from the fund in respect of all claims relating to an event is the total of
(a) $2 000 000, and
(b) any money recovered by the director in respect of the claims as a result of the assignment of rights under section 134 [assignment of rights] of the Act.
23 Each year the director must publish a report in respect of the fund for the previous calendar year or other period determined by the director that includes the following information:
(a) the amount owing to the fund by any contributor at the end of the period;
(b) the total amount of money received by the fund in the period;
(c) the total amount of money paid from the fund in the period;
(d) a statement of all claims paid in the period;
(e) a statement of changes to the capital of the fund;
(f) a statement of the assets and liabilities of the fund at the end of the period.
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