Mark Pestronk
Q: Our agency recently booked an extended family of 10 people on an Alaska cruise departing from Vancouver. When the family flew to Vancouver, the grandmother was refused admission to Canada (for the sole purpose of traveling from the airport to the cruise ship) because she had been convicted of drunk driving in her home state some years ago. The entire family then decided to return home rather than go on the cruise without the matriarch of the family. Now the son, who is a lawyer, is threatening to sue us for failing to advise about the possibility of being denied entry into Canada if you have a criminal record. Could such a suit be successful?
A: To prevail, the son would have to prove that travel agents have a legal duty to advise every Canada-bound client that Canadian immigration authorities may refuse admission to any American with a criminal record. I don't see how he could possibly prove that such a legal duty exists.
Although there is one state court precedent to the effect that travel agents have a duty to advise about the need for visas, there are no precedents at all on this particular issue. So, to win, a plaintiff would have to hire an expert witness who could testify that the standard of care in the professional community is to advise every Canada-bound traveler about this issue.
I doubt that the plaintiff could get a qualified expert to present such expert testimony, as the proposition seems rather absurd. Without expert testimony, any court would probably dismiss the case, as a plaintiff cannot simply invent a duty without some supporting evidence of the duty.
Even if the plaintiff did find an expert, you could present your own expert witness to testify that travel agents have no such duty. If the judge or jury could not decide whom to believe, then the plaintiff would lose, as he would not have met his burden of proof.
Of course, you want to avoid litigation in the first place. Even defending such a suit costs a lot in time and money, unless you have errors and omissions insurance to cover your legal fees.
The best way to avoid litigation and misunderstandings about the scope of your duty is to use a disclaimer such as the ones at www.pestronk.com/free.html. The disclaimers state: "You assume full and complete responsibility for checking and verifying any and all passport, visa, vaccination or other entry requirements of your destination(s)." They also advise the client to consult the U.S. State Department's website at www.travel.state.gov or to call the State Department at a number provided for such advice.
At the State Department site's page on Canada travel, the client can get a link to all of Canada's foreign-entry requirements, including a warning that anyone "with a criminal record (including misdemeanors or alcohol-related driving offenses) may not be able to enter Canada without first obtaining an approval. ... To determine whether you may be inadmissible and how to overcome this finding, please refer to the [Canadian Immigration] website."
At the latter website, you can find a very lengthy explanation of who might be refused entry and what a prospective entrant might be able to do about it.