A class-action suit has been certified by the Supreme Court of British Columbia against Mac’s Convenience Stores Inc. and three immigration consultants – Overseas Immigration Services Inc., Overseas Career and Consulting Services Ltd., and Trident Immigration Services Ltd.
The allegations are that: “1. Mac’s promised jobs and failed to provide them; and 2. Mac’s and the other defendants unlawfully collected fees from prospective temporary foreign workers (“TFW”) who Mac’s had agreed to hire,” according to the ruling released earlier this week.
The hearing can now take place as a single case. The allegations have not been tested in court.
The section “Facts – Submission of Rep Plaintiffs” states: “All of the potential class members were recruited initially in Dubai, by Overseas to work for Mac’s under the TFWP.
“Despite the prohibition against fees being charged, the Rep Plaintiffs were advised by a representative of Overseas that they were required to pay an initial fee installment to Overseas in order to commence the process of obtaining work in Canada. Each of the Rep Plaintiffs paid a first installment to Overseas.
“Later, the Rep Plaintiffs were required to pay a second installment. Sometime after they paid the initial installments, each received an employment offer, a signed employment contract with Mac’s, and a copy of the relevant LMO obtained by Mac’s. The Rep Plaintiffs used these documents to apply for and obtain visas to travel to Canada. They were told by Overseas that they could not travel to Canada and begin working in the jobs promised to them until they paid a second installment. Each paid a second installment to Overseas.
“The following amounts were charged to the Rep Plaintiffs by Overseas: Prakash Basyal
$8,000, Arthur Gortificaion Cajes $8,075, Edlyn Tesorero $7,500, Bishnu Khadka $7,500 (USD)
“Some of the Rep Plaintiffs paid part of the recruitment fee to Trident Immigration Services Ltd. (“Trident”) as directed by representatives of Overseas.”
The submission also stated: “Shortly after arriving in Canada, each of the Rep Plaintiffs learned that there was no job for them at Mac’s.
“Similarly, numerous other potential class members who had signed an employment contract with Mac’s were not provided employment with Mac’s in accordance with the terms of their employment contract.
“Because they were legally unable to work for any other employer and in any other position than that authorized in their work permits, they were left unable to earn income in Canada. As TFWs, they were excluded from access to social benefits or social services. They also suffered mental and emotional distress. The fees they had paid were not refunded.
The involvement of Overseas and Trident are as follows:
“1. They are related companies under the control of Kuldeep Bansal.
“2. Mr. Bansal is a Regulated Canadian Immigration Consultant authorized to represent and advise workers with respect to the Canadian immigration systems.
“3. Mr. Bansal’s sister is the sole director of Trident.
“4. OIS and OCCS supply foreign workers to local, national, and multi-national businesses.
“5. Some of the Rep Plaintiffs paid part of the recruitment fee to Trident, as directed by representatives of Overseas.”
THE submission of Mac’s stated, among other things: “The recruitment and hiring process took many months, sometimes as many as 12 for TFW candidates who were not already in Canada. One of the main causes of delay was government delay in processing visa applications.
“In the meantime, Mac’s’ labour needs were changing constantly.
“ While Mac’s only executed employment contracts when positions were available, there was always a possibility that the position would no longer be available by the time the TFW candidates’ visas, work permits, and travel arrangements could be finalized.
“Mac’s understood that OCCS advised all candidates who were not already in Canada to wait until Mac’s confirmed their job was still available before travelling to Canada.
“Mac’s has never had a relationship, contractual or otherwise, with the defendants OIS or Trident.”
Regarding recruitment fees, its submission said: “1. Max never authorized OCCS, or any other party, to charge or collect any payments from TFWs, directly or indirectly, in exchange for securing employment at Mac’s. Nor has Mac’s ever collected or received any such payments from TFWs, directly or indirectly.
“2. Mac’s understood that OCCS did not charge candidates fees for securing employment, but did charge candidates fees relating to assisting them with processing immigration documents and generally navigating the immigration process. Mac’s had no involvement in providing any such services or collecting any fee relating to them.
“3. Most of the TFW candidates signed formal written agreements with Overseas. These agreements state that “The client(s) agree that the fees paid are for services indicated above and are not for job placement and any refund is strictly limited to the amount of fees paid.””
THE submission of OIS, OCCS and Trident stated, among other things: “The Rep Plaintiffs entered into employment agreements with Mac’s. The terms of the employment agreements varied depending on the nature of the job that the foreign worker was hired to do and the location of the store where the foreign worker would be employed. In every case, Mac’s or Mac’s’ dealers entered into the employment contract with the foreign worker directly. A representative of Mac’s always signed the employment contract. No one from the OCCS or Trident ever signed an employment contract as an agent for Mac’s.
“OCCS also offered other services to the foreign workers, including the Rep Plaintiffs, that were unrelated to the services concerning their employment. OCCS offered seminars to foreign workers who attended about the process for obtaining a work permit and provided them with information about immigrating to Canada under the TFWP.
“While neither OCCS or Trident collected any fees for recruitment of job placement from TFWs who signed an employment contract:
“1. OCCS and Trident entered into agreements for the provision of immigration and settlement services with certain foreign workers who were hired by Mac’s and Mac’s’ dealers.
“2. At no time was it a term of the Recruitment Contract with Mac’s that workers offered employment must also enter into an immigration and settlement service agreement with OCCS. However, most workers hired by Mac’s did decide to retain OCCS themselves for this additional purpose.
“3. Most of the foreign workers hired by Mac’s who retained OCCS to provide immigration and settlement services, signed formal written agreements with OCCS for the provision of those immigration and settlement services.
“4. The terms of the written retainer agreements that foreign workers hired by Mac’s signed with OCCS specifically confirmed that “The clients agree that the fees paid are for services indicated above and are not for job placement and any refund is strictly limited to the amount of fees paid.”
“5. Under the arrangements with OCCS and Trident, foreign workers hired by Mac’s were required to pay the balance of the agreed fees for immigration and settlement services when they had obtained their visa to come to Canada under the TFWP. The triggering event for payment of this amount was completely independent of any events related to the hiring of the foreign worker by Mac’s, their commencing employment in Canada, or their satisfaction with their employment.”
THE judge noted that both parties referred him to the case involving Denny’s Restaurants and a worker recruited in the Philippines. He added: “Issues included for being required to pay substantial fees to proceed and complete the hiring process, as well as breaches of contract, the failure to be provided with as much work as was promised and other matters similar to the case at bar. The defendants argue that there are significant differences between that case and this and it is therefore of little assistance to the Court. However, I am satisfied that the facts in Dominguez (Denny’s) and the legal issues it raises, are remarkably similar to that of the case at bar.”
The judge concluded: “A class proceeding will substantially advance this litigation, including the question of common issues, having regard to the principles of judicial economy, access to justice, and behaviour modification.”
Full ruling at: