Unusual case below results in an award against a Russian immigrant who contracted the services of a "consultant". The case raises many questions beyond the scope of the decision, such as:
1. Does the conduct of the consulting company raise a possible conflict of interest? The company represented both the immigrant and an employer. Was that disclosed to the parties? It is not clear.
2. If the "consultant" would have been regulated (as required in many provinces), would the arrangement in the contracts with the employee and the employer attract scrutiny from the ethical and conflicts point of view?
3. Was the immigrant aware of her obligations, or was she just trying not to pay fees after obtaining employment? It appears that such was the case, as she apparently obtained her Work Permit but then reneged on the obligation to pay. It is not clear as to why she decided not renege on payment after obtaining a positive result, and where the fee appears to have been modest.
From the immigrant's point of view, she should have hired a lawyer to handle the immigration aspects of her case, separately from an employment agency, to avoid precisely the situation described in the facts of this case, and potential conflicts. Immigrants must remember that lawyers are prevented from offering employment agency services, as they are separately regulated by the provincial authorities.
ICN Consulting Inc. v. Tagirova
Between
ICN Consulting Inc., Claimants, and
Maria Tagirova, Defendant
[2010] B.C.J. No. 2760
2010 BCPC 384
File No. 23156
Registry: Richmond
British Columbia Provincial Court
Richmond, British Columbia
T.C. Armstrong Prov. Ct. J.
Heard: September 10, 2010.
Judgment: October 19, 2010.
(32 paras.)
_______________________________________
REASONS FOR JUDGMENT
1 T.C. ARMSTRONG PROV. CT. J.:-- The Claimant is a company providing Immigration Consulting Services from an address in Richmond B.C. This action relates to a contract entered into by the Claimant with the Defendant in 2007 and services provided to the Defendant under the contract in 2007 and 2008.
2 In 2007 the Defendant was a resident of Russia who wanted to enter Canada as a temporary foreign worker under the Live-in Caregiver program (herein the "LCP") authorized under the Immigration and Refugee Protection Act. The Defendant's goal was to obtain employment in Canada as live in care giver and to become a citizen of Canada.
3 In October 2007 the Defendant contacted the Claimant to secure its services to assist her to achieve the goal of obtaining permission to enter and work Canada. On July 22, 2008 she was issued a work permit and a visa to travel to Canada. She arrived on August 2, 2008.
THE CONTRACT
4 The Claimant and Defendant entered into an agreement dated October 16, 2007 (herein the "Contract") a translation of which set out the terms of the Claimant's engagement and the payments to be made by the Defendant. In addition the Defendant signed a promissory note dated October 16, 2007 promising to pay $1,500 on demand in accordance with the Contract.
5 The relevant clauses of the Contract include the following:
• Introductory Clause
• The Company agrees to render the Client consulting services for the purpose of obtaining a labour contract, Work Permit and coming to Canada for work under the Live-in-Caregiver Program of Canadian Government ("Program"), and the Client agrees to pay for the services rendered in the amount and on terms provided by this Contract.
• 1. The Company shall:
1.3 Prepare the set of documents of the Client for submitting to employer according to Canadian standards
1.4 Prepare the client for interview with Canadian employer
• 3. The client allows the company to use at it discretion, publish and submit to any concerned parties and organizations any information and documents received by the Company from the Client, for the purposes provided by this Contract
• 5. The Client understands and acknowledges that the Company is not liable to the Client or third parties for any damages incurred by the Client in course of performance of this Contract or in regards to establishing employment of the Client in Canada
• 9. For The services rendered by the Company the Client shall pay the Company $US 3,000 as follows:
• (ii) $500 US immediately on signing the Contract
• (iii) $1,000 US immediately upon obtaining the Labour Market Opinion confirmation
• (iv) $1,500 upon arrival of the Client to Canada. The amount shall be paid in three installments of $ 500 each, on the first day of each month. All payments shall be made within four months of arrival of the Client to Canada
6 There is no dispute that the Defendant paid the first two sums equaling $1,500 and has not paid the balance.
THE DISPUTE
7 By August 19, 2008, the Defendant had taken legal advice in BC on the enforceability of the Contract whereupon she filed a complaint with the British Columbia Employment Standards Branch to recover the fees she had paid to the Claimant
8 The Defendant complained to the Director of Employment Standards (herein the "Director") alleging that the Claimant was in breach of Section 74 of the Employment Standards Act (herein the "Act") by charging a fee for providing information about employment. After an investigation of that complaint, the Director's delegate concluded that the fee charged to the Defendant was in contravention of Section 10 of the Act and that the Claimant was operating as an employment agency without a valid employment agency licence thereby contravening section 12 of the Act.
9 The Claimant successfully appealed the delegates decision and the Director's determination was cancelled and the Defendant's complaints were referred back to the Director of Employment Standards for a hearing or new investigation by a different delegate.
10 The Claimant then commenced this proceeding on June 21, 2010. The investigation by a new delegate of the Director has not proceeded.
11 In this action the Defendant admitted to non-payment of the balance outstanding to the Claimant but asserts that the Contract for services breached section 10 of the Act rendering the Contract void ab inito. She claims entitlement to the return of the fess already paid to the Claimant in addition to a dismissal of the Claim for the unpaid fees.
12 Section 10 of the Act provides:
• 10(1) A person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for:
• (a) employing or obtaining employment for the person seeking employment, or
• (b) providing information about employers seeking employees.
• (2) A person does not contravene this section by requesting, charging or receiving payment for any form of advertisement from the person who placed the advertisement.
• (3) A payment received by a person in contravention of this section is deemed to be wages owing and this Act applies to recovery of the payment,
13 The Defendant acknowledged that prior to contacting the Claimant, she had unsuccessfully attempted to find employment in Canada to satisfy the requirement under the Immigration and Refugee Protection Regulations (herein the "IRPR"). The Defendant was living in Russia at the time of signing the Contract.
14 No argument was advanced at the hearing as the application of the Act to the Contract signed by the Defendant in Russia and I have not dealt with that issue.
15 The Defendant now asserts that part of the Contract including the fees payable to the Claimant were for purposes prohibited by Section 10 of the Act and the Contract was illegal. She submits this illegality bars the Claimant's right to recover the balance of fees owed and entitles the Claimant to the return of fees already paid.
16 The Claimant had also advanced an argument that the Claimant's contract with the Defendant offended sections 2 and 13 of the IRPR and was therefore void. Before the conclusion of this Simplified Trial the Defendant abandoned the Defence and Counter Claim based on the breach of those sections of the IRPR.
ANALYSIS
17 The Defendant's objection to the claim is that the "Contract was not solely for "immigration consulting services" but for "employment recruitment services and immigration services bundled together for a fee".
18 The Defendant relies on the Introductory clause of the Contract referring to "consulting services for the purpose of obtaining a labour contract" as indicating that the Claimant's charges were, in the words of the Act "a payment for obtaining employment for the person seeking employment".
19 In the absence of any ambiguity in the words of an agreement, the intention of the parties is to be determined objectively by attributing a meaning to the words that would be conveyed to "a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. Perrin v. Shortreed Joint Venture Ltd. [2009] B.C.J. No. 2154 (CA).
20 The evidence disclosed that the Claimant made efforts to connect the Defendant with prospective employers in Canada. On January 21, 2008 the Claimant entered into a separate agreement (herein the Service Agreement) with Oxana Smith of White Rock, B.C to provide services to facilitate a connection between Ms. Smith and a potential care-giver from Europe. Ms. Smith eventually offered a contract of employment to the Defendant which in turn satisfied the immigration requirements necessary for the Defendant to obtain entry into Canada.
21 This Service Agreement included the following Preamble:
"The Client wishes to hire a worker who will provide
care-giving services in the Clients home (Caregiver)
• The Service Provider carries on business primarily consisting of maintaining a database of skilled professionals from Europe who wish to come to work in Canada as live-in Caregivers under the Government of Canada's Live-In Caregiver Program."
22 The Service Agreement required the Claimant to provide Ms. Smith with the following services:
• a) Sourcing and short-listing of professional Caregivers for the Client's consideration;
• b) Presenting to the Client a variety of caregiver options and informing the Client about pertinent information that the Service Provider might have with regard to each applicant Caregiver;
• c) Arranging for the selected applicant Caregiver to be interviewed by the Client.
23 Ms. Smith was also required to pay a $750 non refundable fee on signing the Service Agreement.
24 It is clear that the words in the Contract, in light of the process wherein the Immigration authorities required a Labour Market Opinion (arranged by the Claimant) and an offer of employment from a Canadian employer as prerequisites to obtaining a visa for the Defendant, were not intended to mean that the Claimant was charging a fee to obtain employment for the Defendant. The relevant words of the Contract "for the purpose of obtaining a labour contract," do not imply that the Claimant's charges were "for obtaining employment for the person seeking employment".
25 In the context of this rather complicated procedure for obtaining a visa for the Defendant, I conclude that the charges for services referred to the Defendant under the Contract were not charges that contravened Section 10 of the Act but were truly charges for consulting services ancillary to the object of obtaining a visa for the Defendant under the Live-in-Caregiver Program. Obtaining a labour contract was a necessary step in the immigration process and, in the circumstances, was not synonymous with obtaining employment.
26 This conclusion is supported by the fact that the Claimant entered into the Service Agreement in exchange for a fee paid by Ms. Smith. The fee for obtaining the employment agreement between the Claimant and the Defendant was paid by Ms. Smith under the Service Agreement and not by the Defendant under the Contract.
27 The Defendant argued that the decision in Prince George Nannies & Caregivers Ltd. v. British Columbia (Employment Standards Tribunal) 2010 BCSC 883 was analogous to this claim. I disagree. Sewell J. outlined the standard of review of the Tribunal's decision set out in Section 58 of the Act as permitting him to interfere only if the decision could not be reasonably supported by the record.
28 Sewell J. did not affirm the Employment Standards Tribunal finding; rather he accepted the admission of the PG Nannies that it had an obligation under its contract to use its best efforts to find employment for the Caregiver Clients. He concluded that the Tribunals determination was within the range of reasonable outcomes and therefore he did not have the authority to substitute his view for that of the Tribunal and he was not prepared to interfere with that decision.
29 In this case, the Claimant made no admission it had an obligation to make any effort to find employment for the Defendant. Further, I have concluded that the Contract did not include any such obligation and that the charges under the Contract were not directly or indirectly rendered for the purpose of obtaining employment for the Defendant.
CONCLUSION
30 Accordingly I conclude the Claimant did not breach Section 10 of the Act and the Contract is enforceable against the Defendant.
31 The Claimant will have judgment against the Defendant for Can $1,524.30 together with Court Order interest from November 2008 and costs of $176.
32 The total amount of this judgment shall be paid on or before December 31, 2010.
T.C. ARMSTRONG PROV. CT. J.
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