CASE HIGHLIGHTS CLIENT COMMUNICATION ISSUES

Thsi is a fairly typical case of miscommuniction betewen client and service provider. teh claism seems outlandish and the court rightly rejected it.


Romans v. Howlund International Corp.

Between
Scott Romans and Ayumi Takei, Plaintiffs, and
Howlund International Corp., Defendant

[2010] A.J. No. 1207
2010 ABPC 333

Docket: P0990303754

Registry: Edmonton

Alberta Provincial Court

L.D. Young Prov. Ct. J.

Heard: July 29, 2010; by final written reasons September 27,
2010.

Judgment: October 18, 2010.

(46 paras.)

________________________________________

Decision

1 L.D. YOUNG PROV. CT. J.:-- This is a claim by the Plaintiffs, whereby they allege that the Defendant was negligent in the advice given to them respecting the Plaintiff, Ayumi Takei, obtaining a work permit in Canada. According to the Plaintiffs, this resulted in the Plaintiff, Ayumi Takei, not being able to obtain a work permit until September 2008, which, but for the alleged negligence of the Defendant, she could have received in March 2008. The Plaintiffs further allege that they have incurred the damages set out in their prayer for relief, in an amount totalling $23,470.85, being:



"a. Loss of income based on an approximate gross salary for the Plaintiff, Ayumi Takei, of $3,296.25 per month for 6 months = $19,777.50;


•b. Expenses incurred by the Plaintiffs in a trip to Vancouver B.C. and the attempt to cross the United States border to go to Seattle including air fair [sic ], vehicle rental and airport parking in the amount of $1,324.55;
• c. The initial retainer paid to the Defendant in the amount of $2,100.00; and
• d. Notarized and translated documents required by the Defendant throughout in the amount of $268.80."

At the outset of the trial, Counsel for the Plaintiffs applied to amend the amount claimed to $25,000.00, and Counsel for the Defendant did not oppose the application. As a result, the amount of the Plaintiffs' claim now totals $25,000.00.

2 The Defendant denies the Plaintiffs' allegations and contends that the Defendant prepared the necessary documents and submitted those documents as required by Citizenship and Immigration Canada ("Immigration Canada"), which ultimately led to the Plaintiff, Ayumi Takei, obtaining her work permit.
3 At the trial of this matter, both of the Plaintiffs testified as did their expert, Carla Hess, an immigration consultant. The officer of the Defendant, one Jonathon Dai, who is an immigration consultant, testified, as did the Defendant's expert, Rishi Mittal, who is also an immigration consultant.
FACTS
4 The Plaintiffs, Scott Romans and Ayumi Takei, met while both were travelling in Australia in 2005. Mr. Romans was a Canadian citizen and Ms. Takei was a Japanese citizen. The couple travelled together for some months and eventually, Ms. Takei came to visit Mr. Romans in Calgary, late in 2005 and again in March 2006.
5 Ms. Takei then came to Canada for six months commencing in July 2006. She went to school for the first three months in Vancouver, taking a business-English course and she spent the last three months working in Calgary. This had been arranged through a company called "WISH Vancouver". The company that she worked for in Calgary wanted to hire her full-time and Ms. Takei went to an Immigration Canada office in Calgary to determine how this could be done. Ms. Takei was informed by Immigration Canada that she was in Canada on a visitor's visa and she was not supposed to be working or studying in Canada and that she should leave the Country. According to Ms. Takei's testimony, the officer who met with her put the rejection on her record and stamped her passport accordingly.
6 Mr. Romans and Ms. Takei wanted to further pursue their relationship and decided that Ms. Takei would apply for a "working holiday visa" which would allow Ms. Takei to stay in Canada for one year. They had also discussed living together for one year so that Ms. Takei could then apply for a "common-law visa" which would enable Ms. Takei to stay in Canada for a longer period of time.
7 Ms. Takei did, while she was still living in Japan, apply for the working holiday visa which was rejected by Immigration Canada. According to Mr. Romans, the application for the working holiday visa was rejected because Immigration Canada determined that Ms. Takei's interest in coming to Canada was not to holiday and work but rather, to be with Mr. Romans, her boyfriend.
8 Ms. Takei then came to Canada to visit with Mr. Romans on January 30, 2008. Mr. Romans and Ms. Takei made inquiries of possible employment for Ms. Takei and indeed found an employer, Shiso Japanese Restaurant in Red Deer ("Shiso"), who was willing to hire her. According to Mr. Romans, the owner of Shiso seemed quite familiar with the immigration process and he referred the Plaintiffs to the Defendant, an immigration consulting company.
9 It was Mr. Romans who first contacted the Defendant in mid-February 2008 and spoke with Jonathon Dai, the President of the Defendant. Mr. Romans testified that Mr. Dai indicated that Ms. Takei could be working as soon as one month from the time of the application. Mr. Romans also testified that he advised Mr. Dai of the problem that Ms. Takei had with her visitor's visa that had been arranged through WISH Vancouver and of the rejection of Ms. Takei's application for a working holiday visa. Mr. Romans further testified that he told Mr. Dai that what he and Ms. Takei wanted was for Ms. Takei to come to Canada for one year, so that they could live together, and then apply for a common-law visa for Ms. Takei. Under cross-examination, Ms. Takei agreed that she was aware that this one month time period was just an estimate and that it could take longer.
10 In an e-mail from Mr. Dai to Mr. Romans dated February 15, 2008 [Exhibit 1], Mr. Dai sent the invoice for the services to be provided, which Mr. Romans and Mr. Dai had agreed was to be $2,000.00 (plus GST of $100.00). The e-mail reads, inter alia, as follows:

• "I wish you had told me earlier about Ayumi's problems with CIC, but since I promised Shirley that I will be giving Ayumi the very special rate of $2,000, I will honour it. But this special offer is valid until the end of February 2008. I need to emphasize that although there is no guarantee, we will try our best and hardest to help her. Our latest experience shows that WP applications to a US post can be completed in as short a period as a little more than one month. Once we have received your funds, we will start the process."
The reference to a "WP application" is to a working permit application, which is what Ms. Takei would now be trying to secure from Immigration Canada.
11 There is an e-mail in response from Mr. Romans to Mr. Dai dated February 17, 2008 [Exhibit 1]. The e-mail indicates that Mr. Romans will be forwarding the payment of $2,000.00 "first thing this coming week" and asks some further questions of Mr. Dai.
12 The next e-mail is dated March 12, 2008, from Wendy Yu, an employee of the Defendant, to Mr. Romans [Exhibits 1 and 6] and is addressed to "Scott and Ayumi" and sets out the documents which are needed from Ms. Takei.
13 The Plaintiffs respond by way of an e-mail sent from Mr. Romans to Ms. Yu dated March 12, 2008 [Exhibit 1]. The Plaintiffs express their confusion "on several points" and ask "why was this information not given to us a month ago after we first started with this process ..." and that " several of these requirements cannot be done over night ...". The Plaintiffs apologize for what they call their "frustration" and advise that "one of the major reasons we decided to go with Howlund International is because Johnathan assured us it would reduce delays, and therefore expenses, as opposed to doing this ourselves" and that "the longer this takes, the more expensive it becomes."
14 Ms. Yu then responds by way of an e-mail dated March 13, 2008 to Mr. Romans [Exhibit 1], and addressed to "Scott and Ayumi" to "clarify some of the issues you are confused with". In that e-mail, Ms. Yu advises Mr. Romans that Ms. Takei's "LMO [labour market opinion] application was approved a few days ago by Service Canada" and that, "without this approval, the employer cannot hire Ayumi as a foreign worker." Ms. Yu advises the Plaintiffs that Ms. Takei needs to have reference letters translated from Japanese to English, and that all of the documents to be sent to Immigration Canada as part of her application must be in either English or French. The Plaintiffs are further advised that a short video to "provide the vivid picture of Ayu's English level" and that although a video is not required by Immigration Canada, it would be "really helpful in successfully getting the Work Permit". In the remainder of the e-mail, Ms. Yu outlines the further documentation that is necessary (some required, some not required but helpful to the process) that Ms. Takei must provide.
15 According to Mr. Romans, it was not until May 1, 2008, that Ms. Takei's application was submitted to Immigration Canada. Mr. Romans testified that he then spoke with Mr. Dai on July 17, 2008, to discuss the situation, but also to advise Mr. Dai that Ms. Takei's visitor status would expire on July 30, 2008. An e-mail was sent to Mr. Romans on July 17, 2008 by Ms. Yu [Exhibit 1] which provided Mr. Romans with a copy of the inquiry e-mail that had been sent by the Defendant to Immigration Canada. Mr. Romans further testified that this e-mail confirmed what Mr. Dai had said in their conversation, namely, that Ms. Takei could "stay in Canada for another 90 days after her status as a visitor has been lost" and that Ms. Takei could seek "restoration within 90 days after your status as a visitor ... has been lost." As a result, Ms. Takei stayed in Canada. Ms. Takei did in fact apply for the restoration by way of a written application to Immigration Canada dated August 19, 2008 [Exhibit 3]. In that application, among other things, Ms. Takei wrote that she "was advised by my consultant that I would be working by June 1, 2008."
16 On July 29, 2008, Ms. Yu sent an e-mail to Mr. Romans [Exhibit 1] addressed to "Scott and Ayumi" advising the Plaintiffs that the Defendant had "received a letter from the immigration office in Seattle" and that "Ayumi is required to take an interview at the Seattle immigration office". Further, it advised that "they also require Ayumi to submit additional documents". The e-mail provided information as what documentation was required of Ms. Takei and that she had to present herself at the Seattle immigration office before September 22, 2008.
17 The e-mail in response from Mr. Romans to Ms. Yu dated August 4, 2008 [Exhibit 1] , asked Ms. Yu some further questions of the process and advised her that a trip to Seattle was being planned. The e-mail specifically asked: "What about getting Ayumi back into Canada? (her visitor visa expired on July 30/08). Is there anything we should be doing regarding this? If the interview goes well is there a chance they will issue the work permit while we're there?".
18 Ms. Yu responded by way of e-mail to Mr. Romans on August 5, 2008 [Exhibit 1] addressed to "Scott and Ayumi" to address the Plaintiffs' concerns. Ms. Yu wrote: "there is no specific reason for the interview. According to our experience, most of the cases with interview request are due to the applicant's history. Since Ayumi has been in Canada for several times, the immigration office may doubt about her purpose of the visit." In response to the Plaintiffs' concerns about Ms. Takei re-entering Canada, Ms. Yu wrote: "If Ayumi successfully receives her Work Permit, there will be no difficulty upon her re-entry to Canada, although her visa has expired. If Ayumi is rejected by the immigration officer, upon her entry to Canada, the officer from the customs or immigration may ask her purpose of visit. Ayumi could explain to the officers that she has been rejected for the work permit application. She needs to come to Canada to close her bank account, rent her apartment, explain to the employer, sell her furniture, etc. All she needs to do is to tell them that she needs several months to process some personal issues. After that, she will go back to Japan."
19 Mr. Romans then sent an e-mail in response to Ms. Yu dated August 5, 2008 [Exhibit 1]. His concern was as to what to tell the immigration officer about Ms. Takei's "purpose" and further, "should I go into the interview, or even show up with her?".
20 Ms. Yu responded by way of e-mail to Mr. Romans on August 5, 2008 [Exhibit 1] addressed to "Scott and Ayumi" and wrote: "For Ayumi's case, she can say that she has a friend in Canada, and it is the reason why she frequently comes to Canada for visit. However, it is not good for her application if she says this friend is her boyfriend ... " and that "What immigration officer is looking at is that Ayumi will work temporarily for two years in Canada and does not have any intentions to stay permanently at this moment". Further, that "since [Ayumi] is the applicant, you are not allowed to show up for the interview unless Ayumi needs your help as an interpreter. However according to the job requirement, Ayumi is supposed to have English language ability; so it does not make sense to bring an interpreter with her for the interview."
21 The Plaintiffs went to Seattle, via a flight to Vancouver, and then rented a car to drive to Seattle. This occurred on August 24, 2008. According to Mr. Romans, they could not fly directly to Seattle because he did not have a valid passport but he could drive across the border using his driver's license. At the border, the United States border official expressed a concern with allowing Ms. Takei entry into the United States because she had no formal status in Canada, her visitor's visa having expired. It was explained that if Ms. Takei went into the United States, she may not get back into Canada and she would "be stuck in the U.S. and would be their problem." It was suggested that they speak to the Canadian border officials to see if they would grant Ms. Takei some form of temporary status that would allow her entry back into Canada.
22 The Plaintiffs did just that and went to speak to a Canadian border official who denied Ms. Takei such "temporary status". After bidding them to leave, the Canadian border official in what Mr. Romans described as an "afterthought" indicated to the Plaintiffs that they would "at least need a labour market opinion before you're going to get approved for, you know, this work permit". The Plaintiffs told this border official that they had a labour market opinion in response to which, the border official "went on his computer" and printed out the labour market opinion and told the Plaintiffs that Ms. Takei could get her work permit "right now". The Plaintiffs were advised to go to and pay $150.00 and to come back and it will be given to them. According to Mr. Romans, the border official was not interested in any of the paperwork that the Plaintiffs had brought with them. The work permit was issued [Exhibit 4] and Ms. Takei then went to work at Shiso two or three days thereafter. The issuance of a work permit in this fashion is what is known as a "flagpole application".
23 Mr. Romans and Ms. Takei both testified that at no time had anyone with the Defendant mentioned this process of receiving a work permit at the border (i.e. the flagpole application). Mr. Dai agreed that he did not tell either of the Plaintiffs about a flagpole application. Mr. Dai's position is that it was not in their "best interests" and because of Ms. Takei's previous problems with Immigration Canada it was "not even near consideration". Mr. Dai also testified that his fee for a flagpole application would normally be $8,000.00 because he would attend with his client, usually to the closest border point, at Coutts, Alberta. Mr. Dai also testified as to the possibility of a language barrier creating a problem for Ms. Takei, although Mr. Dai does not speak Japanese and so could not translate for her. He did agree in cross-examination that a flagpole application was technically possible in Ms. Takei's case. He also agreed that it was not a requirement for him to accompany a client to a flagpole application.
24 Mr. Romans testified that if presented with this option, he and the Plaintiff would have opted to proceed in that fashion because he and Ms. Takei would rather than been rejected "sooner rather than later" due to the fact that Ms. Takei was not working and financially, it had been difficult for them as a result. Furthermore, that with an earlier rejection, the Plaintiffs would have looked at an alternate plan of action, perhaps getting married. Ms. Takei also testified that she would have proceeded with a flagpole application had she known about it. Under cross-examination though, both Mr. Romans and Ms. Takei agreed that they would not do anything that would risk Ms. Takei having to leave Canada early and that they both wanted Ms. Takei to stay in Canada as long as possible. Still further, both Mr. Romans and Ms. Takei agreed under cross-examination that if they had been advised by the Defendant that it would cost them $8,000.00 for a flagpole application, they would not have pursued it as an option.
25 The expert who testified for the Plaintiffs, Carla Hess, explained that a flagpole application was one where a person who is legally allowed to be in Canada would, armed with the proper documentation, including a valid passport, labour market opinion and a job offer letter, go to a border crossing, leave Canada and tell the United States border official that you are making a "flagpole turn". You are then directed to return to the Canadian side of the border and deal with a Canadian border official who will process your application. This is something that can be done if one is looking to secure a work permit and is virtually only available to someone who comes from a country where they do not need a permit to enter Canada, which is the case with a Japanese citizen like Ms. Takei. A flagpole application is not something that is promoted by Immigration Canada and is not part of the training of an immigration consultant but the consultants learn of it through experience.
26 According to Ms. Hess, the benefit of a flagpole application is that it is quick. Ms. Hess also testified that there is a risk that the Canadian border official who processes the application may refuse to issue the work permit if everything is not in order and may even refuse to process the application at all and may also refuse the applicant re-entry into Canada. However, in her experience, with her clientele, flagpole applications have been largely successful (perhaps as high as ninety percent). In Ms. Hess' opinion, she would have given Ms. Takei the option of applying in the "usual" way for a work permit (i.e. a written application) or proceeding with a flagpole application, in order that Ms. Takei could have made an informed decision. In Ms. Hess' further opinion, it would be standard for immigration consultants to advise a client of both options, outlining what is required for both, and the risks associated with both procedures, in order that the client could make an informed decision.
27 Mr. Dai did not disagree in any significant way with Ms. Hess' explanation of a flagpole application. Both Mr. Dai and Ms. Hess explained that the application was not without risk. However, Mr. Dai's experience has been that with his clientele, flagpole applications are only moderately successful, i.e fifty percent.
28 Mr. Mittal, who does not have the years of experience as an immigration consultant that both Ms. Hess and Mr. Dai have, also did not disagree in any significant way with the explanations given by Ms. Hess and Mr. Dai as to a flagpole application. In Mr. Mittal's opinion, he would not have recommended a flagpole application for Ms. Takei because "there wouldn't appear to be a need for that kind of recommendation", but he did not further elaborate to any great degree. Under cross-examination, he testified that in his experience, with his clientele, he has had about a thirty percent success rate with flagpole applications. He also testified that if he had been advised by Ms. Takei that it was urgent that she obtain her work permit, "I may have mentioned it [i.e. flagpole application] ... but I would definitely not have brought it up and I would have still sent the application overseas ... or outside the country".
29 The damages the Plaintiffs are claiming have been set forth in paragraph 1 of this decision. A copy of the invoice issued by the Defendant to the Plaintiffs for $2,100.00, together with the bank transaction fee of $6.00 for the bank draft that paid same, were entered into evidence as Exhibit 5. That Exhibit also includes the invoice for the translation of documents totalling $268.80. Yet further, Exhibit 5 includes the receipt for the initial return airfare between Calgary and Vancouver totalling $710.50, which airfare increased by the sum of $525.00 as the Plaintiffs changed their flight to return to Calgary on August 24, 2008. In addition, Exhibit 5 includes the receipt for the car rental from the Vancouver airport to Seattle and return in an amount totalling $76.50 and the receipt for parking at the Calgary airport in the sum of $12.55.
30 With respect to the Defendant's invoice for $2,100.00, it made reference to "consulting service fees for work permit application" and listed four items thereunder: "arrangement of E-LMO [expedited labour market opinion], preparation of work permit application overseas, one time government fees and courier cost included and consultation and advice regarding issues related to the above mentioned matters". The Plaintiffs agreed under cross-examination that the Defendant did obtain the E-LMO and that the Defendant prepared the work permit application and that it would be sent to Seattle. They further agreed that the Defendant paid $150.00 to Immigration Canada when it submitted the original application. Yet further, they agreed that the Defendant did provide consultation and advice respecting the issues related to the obtaining of the E-LMO, the preparation of the work permit application and its submission to Immigration Canada.
31 Mr. Romans and Ms. Takei both testified under cross-examination that the Defendant never agreed to pay for the Plaintiffs' travel costs to Seattle and never agreed to pay for the translation of documents. Furthermore, the Plaintiffs knew that only Ms. Takei was to be interviewed in Seattle.
32 The other portion of the Plaintiffs' damage claim is for the loss of Ms. Takei's income which the Plaintiffs base on a gross salary for Ms. Takei of $3,296.25 per month for 6 months, in the total sum of $19,777.50. Ms. Takei signed her employment contract with Shiso on April 11, 2008 [Exhibit 7]. The Plaintiffs moved to Red Deer on or about May 5, 2008. Ms. Takei's work permit application [Exhibit 8] indicates an expected employment start date of June 1, 2008. Once Ms. Takei commenced her employment, she was a server, and later on, became a supervisor, although the evidence does not disclose when that change in her job took effect. For the approximately four months that Ms. Takei worked in 2008 (September through December), she earned a total of $13,185.00 (or $3,296.25 per month), which sum included her base income and tips [Exhibit 9]

ISSUES

33 Was the Defendant negligent in the services it provided to the Plaintiffs? If so, what damages, if any, flow from that negligence?

DECISION

34 The Plaintiffs have framed their claim in both contract and negligence and submit "that negligence can arise in a contract for services". That is correct. As is set out in the text, The Law of Contracts (2005, Irwin Law Inc.), by John D. McCamus:

• "As a general principle, the traditional doctrine held that once the parties had entered into a contractual relationship, the terms of the contract ought to provide the exclusive source of the parties' mutual rights and obligations. This principle was, in turn, subject to a number of limitations and exceptions of uncertain ambit. In recent years, however, this subject has been greatly simplified by the decision of the Supreme Court of Canada in BG Checo International Ltd. v. British Columbia Hydro & Power Authority. ... For purposes of Canadian law, the Supreme Court swept aside the remarkable complexity of the traditional doctrine of concurrent liability and adopted a straightforward principle that parties who are guilty of tortious misconduct when breaching a contract will be liable concurrently in contract and tort, unless the agreement between the parties stipulates to the contrary."
35 As to the contract between the parties, there was agreement between them that the services to be provided by the Defendant were as set out in the Defendant's invoice, being:

• a.
arrangement of E-LMO [i.e. an expedited labour market opinion]
• b.
preparation of work permit application overseas [in this case, to the Canadian immigration office in Seattle];
• c.
one time Government fees and courier cost included; and
• d.
consultation and advice regarding issues related to the above mentioned matters.
The Plaintiffs acknowledged in their testimony that this agreement was in fact carried out by the Defendant. However, their concern is that the Defendant did not advise the Plaintiffs of the existence of such a thing as a "flagpole application" and that this was negligent on the part of the Defendant and caused them to suffer damages as a result.
36 In order to succeed in their claim, the Plaintiffs must establish that:

• a.
the Defendant owes them a duty of care;
• b.
the Defendant breached that duty of care (that is, the Defendant was negligent); and
• c.
the Defendant's negligence caused the Plaintiffs to suffer damages as a result, with those damages not being too remote (in other words, that the damages suffered were reasonably foreseeable).
37 In the case before me, the Plaintiffs were referred to the Defendant, a professional immigration consulting company, and had dealings with its principal, Mr. Dai, who is a professional immigration consultant and Ms. Yu, the Defendant's employee referred to earlier in this decision. I use the word "professional" in the sense that it denotes a company or individual whose business it is to, in this instance, handle immigration matters for clients. There has been a substantial body of law that has developed with respect to the duty of care that a professional or someone with superior knowledge and skill owes to a client. I find that in the present case, the Defendant, being as I described it, a professional immigration consulting company does indeed owe a duty of care to the Plaintiffs.
38 The question then becomes: what is that duty of care? As set out in the text, The Law of Torts, 3rd Ed., (2007, Irwin Law Inc.) by Philip H. Osborne:

• "A higher standard of care is applied to those persons who represent themselves as having special skill and knowledge that allow them to perform tasks that are normally beyond the capacity of the ordinary person. The public may reasonably expect such people to exercise a degree of skill and knowledge commensurate with that representation. An elevated standard of care applies not only to members of the professions but also to business, commercial, and trades people ... The standard of care is that of the reasonably prudent and competent member of the particular profession or vocation to which the defendant belongs."
So in the case before, did the Defendant breach its duty of care in that it did not advise the Plaintiffs as to the availability of a flagpole application?
39 As I set out earlier in this decision, I not only heard from Mr. Dai, as to what a flagpole application entails, I also heard from two experts, one for the Plaintiffs and one for the Defendant. As I also set out earlier in this decision, the testimony of the experts did not differ significantly on this point. The experts and Mr. Dai all agreed that a flagpole application is not something that is "taught" if you will, to immigration consultants, but it is something that is known to immigration consultants and is something that each of these three immigration consultants have each used with their own clientele, to varying degrees and with varying success. In the case of Ms. Hess, with her clientele, it has been largely successful. In the case of Mr. Mittal, his estimate was that it was successful in approximately thirty percent of his cases and with Mr. Dai, it was successful in approximately fifty percent of his cases.
40 The experts and Mr. Dai all testified that it depends on the circumstances of each case before them as to whether or not those circumstances warrant the making of a flagpole application. The success rate appears to be not insubstantial - somewhere between thirty percent at the low end and up to ninety percent at the high end. I appreciate that these were "guesstimates" by those who testified and that they are case-specific, and I do not doubt that the Defendant reviewed Ms. Takei's circumstances and assessed her chances at success in making a flagpole application, but the concern I have is that the Defendant never advised the Plaintiffs as to the fact that a flagpole application even existed. Counsel for the Plaintiffs takes the position that this constitutes a breach of the standard of care that was owed to the Plaintiffs by the Defendant in that it "did not accord with what would be expected of a reasonable immigration consultant with a similar knowledge". Counsel for the Defendant takes the position that the flagpole option was not recommended because the Defendant did not see it as a viable option.
41 There is no doubt that there are risks to a flagpole application. These were testified to by the experts and Mr. Dai. The biggest risk appears to be that an unsuccessful applicant could be forced to return to their home country with little, if any, time to arrange their affairs in Canada, despite whether or not there is any time remaining on their visitor's visa. That there is no certainty to the application is not in question. Again, the testimony of the experts and Mr. Dai is that the border officials are very unpredictable and may even refuse to deal with such an application outright.
42 Notwithstanding these risks though, the Plaintiffs were not even given an opportunity to hear about a flagpole application and the possibility that it might be an alternative to the method of applying for a work permit that the Defendant advised the Plaintiffs to pursue (i.e. through a written application to Seattle). The situation is somewhat analogous to that of informed consent in the medical cases that come before the Courts. In the Supreme Court of Canada decision in Hopp v. Lepp [1980] 2 S.C.R. 192, Chief Justice Laskin described informed consent as:

• "... [reflecting] the fact that although there is, generally, prior consent by a patient to proposed surgery or therapy, this does not immunize a surgeon or physician from liability for battery or for negligence if he has failed in a duty to disclose risks of the surgery or treatment, known or which should be known to him, and which are unknown to the patient."
In other words, to apply this to the case before me, just because the Defendant had determined to dismiss the possibility of a flagpole application, that does not protect the Defendant from liability if the Defendant failed in its duty of care by not disclosing that possibility to the Plaintiffs.
43 I find that the Defendant has breached its duty of care. Having heard from the experts and Mr. Dai, it would be reasonable for an immigration consultant to have at least advised the Plaintiffs as to what a flagpole application was and to have informed them of the advantages and disadvantages of it, as it was available to Ms. Takei as an option in her circumstances, even if the Defendant believed it was not a viable option. The Defendant should have presented the pros and the cons to the Plaintiffs and did not do so, and thereby prevented the Plaintiffs from making an informed decision as to the best route to take.
44 The Plaintiffs have argued that they have suffered damages as a result of the negligence of the Defendant. I have outlined the Plaintiffs' damages claim earlier in this decision. I will deal with each of them in turn as follows:

• a.
"The initial retainer paid to the Defendant in the amount of $2,100.00."

• The Plaintiffs both agreed in their testimony that the Defendant did indeed do the work that it was contracted to do. Ms. Takei required that this work be done in order for her to apply for a work permit. This work enabled Ms. Takei to be successful in her flagpole application. Consequently, I have determined that the Plaintiffs did not suffer any damage with respect to this portion of their claim.

• b.
"Notarized and translated documents required by the Defendant through in the amount of $268.80."

• The Plaintiffs also both agreed in their testimony that it was their responsibility and their cost to obtain such documents. These were again a necessary part of the work permit application process. Consequently, I have determined that the Plaintiffs did not suffer any damage with respect to this portion of their claim.

• c.
"Loss of income based on an approximate gross salary for the Plaintiff, Ayumi Takei, of $3,296.25 per month for 6 months = $19,777.50."

• According to the written argument submitted by Counsel for the Plaintiffs, this portion of the Plaintiffs' claim is now for Ms. Takei's salary for five and one half months, from March 6, 2008 to August 23, 2008. According to the Plaintiffs, Ms. Takei would have been able to work from at least March 6, 2008, when she was granted a positive labour market opinion and could have applied for her work permit via a flagpole application, and would then not have been idle, without income, until August 24, 2008, when her flag pole application was granted and she was able to work.

• This portion of the Plaintiffs' claim assumes that the Plaintiffs would have proceeded with a flagpole application. According to the testimony of both Plaintiffs, they agreed that if they had known that the Defendant's cost to proceed with a flagpole application was $8,000.00, they would not have been able to go that route, notwithstanding that they wanted to proceed with Ms. Takei's work permit application in as expeditious a manner as possible. There was some contradiction in Ms. Takei's evidence with respect to whether or not she would have made a flagpole application, (assuming cost not being a factor). On the one hand, Ms. Takei testified that she wanted to stay in Canada as long as possible and did not want to do anything to jeopardize the status she had under her visitor's visa, which was not due to expire until July 30, 2008. On the other hand, Ms. Takei testified, somewhat hesitantly, that she would have risked making the flagpole application in March 2008 knowing that it could result in her having to leave Canada as early as sometime in March 2008. This does not accord with the Plaintiffs' evidence as a whole which was that they wanted to be together, for longer terms than had previously been possible, so as to be able to pursue their relationship. I find that the Plaintiffs would not, based on their evidence, have proceeded with a flagpole application.

• However, if I am wrong in that determination, and the Plaintiffs would have proceeded with a flagpole application, then I find that these damages are too remote to be recoverable. There is no way of knowing when Ms. Takei would have proceeded with such application. There is no way of knowing whether or not the flagpole application would have been successful. Just because it was successful on that given day, does not mean it would have been successful on another day, given another border official. One cannot say that but for the negligence of the Defendant, Ms. Takei would have been successful in such application and consequently, the loss of wages does not flow from that negligence.

• d.
"Expenses incurred by the Plaintiffs in a trip to Vancouver B.C. and the attempt to cross the United States border to go to Seattle including air fair [sic ], vehicle rental and airport parking in the amount of $1,324.55."

• The Plaintiffs were aware that Ms. Takei's application for a working permit was being made through Seattle. They were also then made aware that an interview with Ms. Takei was requested by Immigration Canada and that Ms. Takei would need to attend in Seattle for that interview. This was not something that Mr. Romans was required to do, and in fact, was advised by the Defendant that he could not attend with Ms. Takei at the interview. As a result, any costs incurred by Mr. Romans are not recoverable. As for Ms. Takei, these are costs that she would have had to incur as she was required to attend in Seattle. Consequently, her costs are also recoverable.

• I have already determined that the Plaintiffs would not have proceeded with a flagpole application. However, as I indicate in paragraph c. above, if I am wrong in that determination, then there would have been expenses associated with such an application in any event. Those expenses would only be recoverable by Ms. Takei as she, and not Mr. Romans, would have been the one required to attend at such application and there was no evidence led by the Plaintiffs as to what travel expenses would have been incurred by Ms. Takei had she proceeded with a flagpole application. As a result, there is simply no evidence before this Court which would provide me with any basis on which to make any award for expenses under this portion of the Plaintiff's claim.
45 The end result is that the Plaintiffs' claim is dismissed in its entirety as the Plaintiffs have not been able to prove, on a balance of probabilities, that they suffered any loss or damage as a result of the actions of the Defendant.
46 I would like to thank both Counsel for their very capable presentations at trial and for their very thorough written submissions. As for the matter of costs, if Counsel cannot agree on same, they may arrange to speak to me respecting costs through this Court's Trial Coordinator.

L.D. YOUNG PROV. CT. J.