Does your company recruit employees from abroad? If so, is there a chance that you could be subject to a class action lawsuit if something goes wrong? The answer, in BC at least, is “yes.”
In the recent case of Basyal v Mac’s Convenience Stores Inc., 2017 BCSC 1649, the British Columbia Supreme Court certified a class proceeding against Mac’s Convenience Stores Inc. (“Mac’s”) and three immigration consulting firms used by Mac’s. The representative plaintiffs in this case were foreigners residing in Dubai when they were recruited to work at western Canadian Mac’s locations under the federal Temporary Foreign Worker Program (the “TFWP”).
In the end, these prospective temporary foreign workers alleged they spent significant time and money only to arrive in Canada without getting a job. As many as 450 people make up the class.
The temporary foreign workers alleged that:
- They were promised jobs by Mac’s which they did not receive, and
- Mac’s and the other defendants unlawfully gathered fees from them.
These allegations led the prospective temporary foreign workers to seek relief on numerous causes of action, including: breach of contract, agency, conspiracy, unjust enrichment and waiver of tort, and breach of fiduciary duty.
The Court found that each member of this group was recruited by representatives of Overseas Immigration Services Inc. or Overseas Career and Consulting Services Ltd. (“Overseas”). Mac’s hired Overseas to recruit workers for its stores under the TFWP.
Under the TFWP, employers are allowed to use third-party recruiters – if the employer pays for all of the recruiter’s fees.
It was alleged that, in direct violation of this, Overseas told the prospective temporary foreign workers they could receive employment with Mac’s in Canada so long as they paid a fee to initiate the work placement and immigration process. Allegedly, the prospective temporary foreign workers collectively paid Overseas $23,575 Canadian dollars plus $7,500 American dollars before signing employment contracts with Mac’s.
When analyzing the contracts signed by the prospective temporary foreign workers, the Court recognized that they all had substantially similar terms including a prohibition against Mac’s from taking from the employee any costs incurred during recruitment, and the assurance from Mac’s that it would provide available and reasonable accommodation.
Each of the prospective temporary foreign workers received visas to come to Canada and work permits to work solely for Mac’s. Shortly thereafter, the prospective temporary foreign workers allegedly learned there were no jobs for them at Mac’s. Since their work permits were only valid to work at Mac’s, they were unable to legally earn income anywhere else in Canada. Additionally, the fees allegedly paid to Overseas were not refunded.
The Court found that the group of prospective temporary foreign workers met the burden outlined in section 4 of the Class Proceedings Act R.S.B.C. 1996, c. 50, namely whether it is more fair and efficient to hear the case as a single class proceeding rather than as individual proceedings.
By certifying this as a class action, the Court determined that the prospective temporary foreign workers were an identifiable class of people who had been recruited in Dubai by Mac’s, with common issues relating to the similar employment contracts signed by all of the class.
To reach his decision, the Court in part relied on the B.C. Supreme Court decision for certifying a class proceeding in Dominguez v. Northland Properties Corp. (c.o.b. Denny’s Restaurants)¸2012 BCSC 328 (“Dominguez”) where prospective employees were recruited from the Philippines to work at Denny’s under the TFWP.
In Dominguez, temporary foreign workers arrived in Canada to work at Denny’s, however Denny’s did not provide the workers with the work hours stipulated by their employment contracts. In addition, the employees were not paid appropriate overtime pay, were made to pay for travel between Canada and the Philippines despite their contracts saying otherwise, and had to pay agency fees similar to the prospective temporary foreign workers’ fees allegedly paid to Overseas. The Court noted the following similarities between Basyal and Dominguez:
- Workers in both proceedings had to pay substantial fees prohibited under the TFWP,
- Workers in both proceedings were faced with breaches of contract by their employer, and
- Workers in both proceedings were substantially over-promised the amount of work they would receive.
Due to the similarities between the two cases and the commonality of issues between the entire class in this case, the Court granted the certification. A trial date for the class proceeding has not yet been set. Mac’s and the other defendants have denied any wrongdoing.