Applicants wrongly assume that obtaining an Arranged Employment Opinion ( AEO) may result in an automatic acceptance of an application for residency. It is not so. The applicant's experience must be relevant to the subject matter of the AEO. Applicants are routinely counselled poorly by their laweyrs and "consultants" in this area, and refusals er becoming common. the lesson? Consult only experienced, credible and well established immigration lawyers to assess your application fairly and not to try to embellish or misrepresent your experience. See this recent case for a good example of this common error:
Pirzadeh v. Canada (Minister of Citizenship and Immigration)
Between
Babak Pirzadeh, Applicant, and
The Minister of Citizenship and Immigration, Respondent
[2011] F.C.J. No. 591
2011 FC 461
Docket IMM-3303-10
Federal Court
Toronto, Ontario
Rennie J.
Heard: March 17, 2011.
Judgment: April 20, 2011.
(31 paras.)
________________________________________
REASONS FOR JUDGMENT AND JUDGMENT
1 RENNIE J.:-- The applicant seeks to set aside a decision dated March 4, 2010 of a Visa Officer at the Canadian Embassy in Damascus, Syria, denying the applicant's application for a Permanent Resident Visa (PRV) under the Federal Skilled Worker (FSW) class. The visa request was denied on the basis that the Visa Officer was not satisfied that the applicant was able to perform the duties listed in the arranged offer of employment nor that he met the minimum requirements of the job. The standard of review of this decision is reasonableness, which can only be assessed if the decision is first situated in the legislative and regulatory context in which it is taken.
Facts
2 The applicant is a citizen of Iran. In July 2007 he submitted an FSW application to the Canadian Embassy in Damascus. Under the Immigration and Refugee Protection Regulations (SOR/2002-227) (the Regulations) points are awarded to applicants based on discrete categories: age, education, experience, arranged employment, official language proficiency, and adaptability. The applicant was awarded a total of 63 points, when he needed 67 points for his application to be approved under the FSW regime.
NOC code: 0631
Points Assessed Maximum
Age: 10 10
Education: 20 25
Experience: 21 21
Arranged Employment: 0 10
Official Language Proficiency 8 24
Adaptability 4 10
TOTAL
63 100
3 Along with his application, the applicant included an Arranged Employment Offer (AEO) as a manager of a Toronto Subway[TM] restaurant. He had secured an Arranged Employment Opinion from Service Canada (AEOSC) in support of this AEO, in which Service Canada classified the position as that of a Retail Trade Manager under NOC0621, found on the National Occupations Classifications (NOC) list.
4 The applicant was assessed by the Visa Officer under NOC063 1 instead of NOC062 1, and no points were awarded in the Arranged Employment category. The Visa Officer wrote in his decision:
• Although you submitted an application with arranged employment, I am not satisfied that you meet the minimum requirements of the job and are able to perform the duties listed in the arranged employment. The arranged employment states that previous related experience is required. You do not have previous related experience in NOC code 0631 and therefore I am not satisfied you meet the minimum requirements of the job. I advised you of my concern at interview and gave you the opportunity to respond. [Emphasis added]
5 It is indisputable that based on the above the Visa Officer had legitimate concerns about the applicant's ability or capacity to perform the job of Retail Trade Manager. The Visa Officer wrote:
• [y]ou have therefore not satisfied me that you will be able to become economically established in Canada.
6 The Visa Officer concluded in his letter to the applicant, that:
• [f]ollowing an examination of your application, I am not satisfied that you meet the requirements of the [IRPA ] Act and the regulations for the reasons explained above. I am therefore refusing your application."
Issue
7 Counsel for the applicant contends that the Visa Officer's decision that the applicant did not have related work experience is unreasonable because:
• (a) The officer compared the wrong NOC codes;
• (b) The applicant's work experience was clearly related to the duties of the position he was offered; or (c) The officer ignored the rest of the job offer contents, including that on-site training would be provided.
• Secondly, the applicant contends that the reasons for decision are deficient.
8 The substantive question, the Visa Officer's assessment of the work experience is assessed on a reasonableness standard, and the procedural question, the adequacy of reasons, is a legal one which attracts a standard of correctness, per Dunsmuir v New Brunswick, [2008] 1 SCR 190, 2008 SCC 9.
9 The Visa Officer referenced the wrong NOC codes. The Visa Officer, relying on the Human Resources and Skills Development Canada (HRSDC) opinion, referenced the duties of the applicant's current occupation as a manufacturing manager to the NOC occupation of Restaurant and Food Service Managers - NOC 0631. Given that the substantive position was to manage a food service establishment, it is difficult to see how this error in the label worked any unfairness to the applicant. This is, indeed, the crux of the case.
10 When the applicant submitted his application, he described the employment he was then engaged in as an Industrial Manager. He claimed that his job entailed the following:
• - I plan, organize, direct and control the operations of our manufacturing establishment.
• - Develop and implement plans to efficiently use materials, labour and equipment to meet production targets.
• - Direct quality control inspection system and develop production reporting procedures.
• - Develop equipment maintenance schedules and recommend the replacement of machines.
• - Time measurement for develop of production line, project control, line balancing (man balance power).
11 As noted earlier, the applicant also supplied an AEO as a Retail Trade Manager from a Subway[TM] restaurant in Toronto. The letter declared that the job entailed the following:
• - Plan and direct the operation of our establishment.
• - Manage staff and assign duties.
• - Determine services to be sold, and implement prices.
• - Locate, select and procure merchandise for purchase.
• - Develop and implement marketing strategies.
• - Plan budgets and authorize expenditures.
• - Determine staffing requirements and hire or oversee hiring of staff.
12 As noted earlier, this AEO was validated by the AEO from Service Canada. However the AEO itself incorrectly ascribed NOC code 0631 (Retail Food Service Manager) to Retail Trade Manager.
13 As a result of concerns as to the relevance and suitability of the applicant's prior experience the applicant was instructed by the Embassy, in a letter dated December 16, 2009, to provide a reference letter and explain how he qualified for his AEO. The applicant responded on January 11, 2010:
• In respond [sic] to your inquiry regarding submission of a written description of my employment, I should claim that all my transferable skills in the managerial job I was performing may be useful in my future occupation as a "Retail Trade Manager", In my current job which I have had since 1988, I have been involved with supervision and training of manpower in Iran Khodro and I am sure I will be able to use this experience in my future job. I will be planning, organizing, directing and controlling the operation of the store to optimize the sell and services of this business. Although the appearance of these two jobs may look different but the managerial requirements to run them both still remains the same.
14 The Computer Assisted Immigration Processing System (CAIPS) notes indicate that the
Visa Officer remained unsatisfied with the response;
• I am not satisfied with PA's [person affected] written explanation. I have concerns with PA's ability to perform the job and I have concerns with PA's intent to accept job once in Canada.
• Interviewing Officer:
• PA has an AEO to be a Retail Trade Manager at Subway. Pa's previous work experience has been with Iran Khodro as an Industrial Manager since 1988. Concerns with PA's ability and intent. [Emphasis added]
15 The Visa Officer had concerns with not only the applicant's ability to perform the job offered to him, but also his intent to accept it, to actually assume his responsibilities in the position. This is, of course, the second prong of the test imposed under the Regulations. This finding is not challenged on this application.
16 The applicant was interviewed by the Visa Officer. The interview was conducted in English. The applicant confirmed he understood English and was instructed by the Visa Officer to explain when he did not understand something asked of him. The applicant claimed that his work experience as an Industrial Manager lended itself well to being a Retail Trade Manager at the Subway[TM] restaurant in Toronto. During the interview, the Visa Officer noted that as "PA started speaking incoherently about products and targets....PA does not understand the question [about intent to take the employment in Canada]...PA then speaks incoherently about finding targets and goals and society targets."
17 The Visa Officer ultimately remained unsatisfied and wrote in the CAIPS notes:
• I have reviewed the complete file and I am not satisfied that the PA meets the requirements of the AEO. The job details of the AEO state "previous related experience is required". PA does not have "previous related experience" as a retail trade manager or a restaurant and food service manager (NOC code 0631). Although PA states that the main duties under NOC 0911 (his current job) and NOC 0631 (his employment for the AEO) are similar, they are significantly different. I am not satisfied PA meets the minimum requirements for the AEO. APPLICATION REFUSED. [CAPS in original] [Emphasis added]
18 Three observations flow from this. First, the Visa Officer assessed the applicant against both occupational codes. Second, the Visa Officer tested the applicant's prior experience against the requirements of the proposed employment. Third, throughout their correspondence and the interview, the Visa Officer and the applicant were ad idem as to the nature of the employment offered and its classification as a Retail Trade Manager.
19 The error in the labeling of the position does not go to the root of the decision nor does it render it unreasonable. First, in the CAIPS notes, which form part of the decision, the Visa Officer wrote: "PA does not have 'previous related experience' as a retail trade manager or a restaurant and food service manager (NOC code 0631)." Thus, the Visa Officer did in fact consider the applicant's application in relation to the NOC code he actually applied for: NOC code 0621, Retail Trade Manager. Secondly, the Visa Officer found that the applicant did not have the requisite intention to undertake the employment, and third, the CAIPS notes reveal a solid evidentiary footing on which the Visa Officer based his conclusions.
20 I note as well that NOC codes 0621 and 0631 are strikingly similar:
• 0621 Retail Trade Managers
• Retail trade managers plan, organize, direct, control and evaluate the operations of establishments that sell merchandise or services on a retail basis. Retail trade managers are employed by retail sales establishments or they may own and operate their own store.
• Employment requirements:
• - Completion of secondary school is required.
• - A university degree or college diploma in business administration or other field related to the product or service being sold may be required.
• - Several years of related retail sales experience at increasing levels of responsibility are usually required.
[Emphasis added]
0631 Restaurant and Food Service Managers
• Restaurant and food service managers plan, organize, direct, control and evaluate the operations of restaurants, bars, cafeterias and other food and beverage services. They are employed in food and beverage service establishments, or they may be self-employed.
• Employment requirements:
• - Completion of a college or other program related to hospitality or food and beverage service management is usually required.
• - Several years of experience in the food service sector, including supervisory experience, are required.
[Emphasis added]
21 NOC code 0621 speaks of an FSW applicant requiring several years of related retail sales experience while NOC code 0631 speaks of an FSW applicant requiring several years of experience in the food service sector. While these are different requirements, the Visa Officer's classification or labeling error had no bearing on the substance of the decision or the fairness by which the decision was reached. The applicant had no experience in either. The Visa Officer wrote:
• I am not satisfied that you meet the minimum requirements of the job and are able to perform the duties listed in the arranged employment... [which] states that previous related experience is required. You do not have previous related experience in NOC code 0631 and therefore I am not satisfied you meet the minimum requirements of the job. [Emphasis added]
22 Validation or classification by HRSDC is not determinative of the Visa Officer's obligation to conduct an analysis in accordance with the IRPA and the Regulations. It does not relieve the obligation on the Visa Officer to assess and test whether the applicant is able to perform the duties of the position offered, or to put it more directly, the Visa Officer must determine whether the applicant is up to the requirements of the job; Bellido v Canada (Minister of Citizenship and Immigration) 2005 FC 452. The Visa Officer turned his mind to the specific requirements of the position offered. It is the substantive position offered, and not the HRSDC label that governs the Visa Officer's assessment, it should not be forgotten that during the interview the applicant indicated that Subway sold hamburgers.
23 It is a basic principle of administrative law that, where natural justice or the fairness of the procedure is in question, a remedy will ordinarily be recognized regardless of the futility or inevitability of the result when the matter is remitted to the decision maker for reconsideration. There are rare exceptions to this, as discussed by the Supreme Court of Canada (SCC) in Mobil Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum Board [1994] 1 SCR 202, Justice Iacobucci, writing for the Court noted:
• On occasion, however, this Court has discussed circumstances in which no relief will be offered in the face of breached administrative law principles: e.g., Harelkin v. University of Regina, [1979] 2 S.C.R. 561.
• ..
• In Administrative Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair procedure should come first, and that the demerits of bad cases should not ordinarily lead courts to ignore breaches of natural justice or fairness. But then he also states:
• A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
24 In the context of this case, is an academic discussion because, as noted, I do not find any breach of procedural fairness. The applicant's ability to perform the job in question was fully and fairly assessed on its merits against the relevant standards and against the correct occupational code, albeit also against an incorrect, but substantially similar occupational code. No one was misled by this. Moreover, with respect to the second branch of the test under the Regulations, the Officer formed the opinion that the applicant did not have the requisite intention to assume the position, a finding which was not challenged on this application.
25 The responsibility of this Court is to ensure that the Visa Officer exercised his discretion in accordance with the IRPA and the Regulations as informed by the jurisprudence. It is also to ensure that there is no breach of procedural fairness in the process by which the assessment is conducted. No unfairness, or lack of opportunity arose from the error. The applicant knew throughout the entire process what was in issue, and, significantly, could not point to any further or different information that might have been brought to the attention of the Visa Officer but for the mislabeling. The applicant's argument would have the substantive analysis conducted by the Officer subordinated to a clerical error in referring to the incorrect code.
Applicant's Work Experience
26 Counsel for the applicant argues that his client's work experience is clearly related to the duties of the position he was offered. In other words, counsel argues that the applicant's experience as an Industrial Manager in Iran qualifies him for work as a Retail Sales Manager in Canada. To conclude on this issue, it is prudent to again look at the applicant's assertions:
• In respond [sic] to your inquiry regarding submission of a written description of my employment, I should claim that all my transferable skills in the managerial job I was performing may be useful in my future occupation as a "Retail Trade Manager". In my current job which I have had since 1988, I have been involved with supervision and training of manpower in Iran Khodro and I am sure I will be able to use this experience in my future job. I will be planning, organizing, directing and controlling the operation of the store to optimize the sell and services of this business. Although the appearance of these two jobs may look different but the managerial requirements to run them both still remains the same. [Emphasis added]
27 This aspect of the decision making process is entitled to considerable deference. In assessing the relevance of the past experience to the AOE the Visa Officer is making a finding of fact which will not be disturbed unless demonstrated to be unreasonable. In this case, the applicant's past experience was in relation to an automobile parts manufacturing plant. As noted from the excerpts of the interview in the CAIPS notes, it was not without reason that the Visa Officer questioned the transferability of that experience to a position in a fast-food restaurant.
Adequacy of Reasons
28 Counsel for the applicant also argues that the reasons for decision supplied in the letter are deficient.
29 I do not accept that the reasons are inadequate. The CAIPS notes form, unquestionably, part of the decision and they indicate clearly, both through the nature of the questions posed by the Visa Officer and the responses received, together with the formal decision letter, the scope and detail of the Visa Officer's concerns. The reasons meet the criteria expressed by the Court of Appeal in VIA Rail Canada Inc. v National Transportation Agency [2001] 2 FC 25 and in particular the comments of Evans JA in Canada (Minister of Human Resources Development) v Quesnelle 2003 FCA 92, at para 11.
30 For these reasons, the application will be dismissed.
31 No question of general importance was put forward for certification, and none will be certified.
JUDGMENT
THIS COURT'S JUDGMENT is that the application for judicial review be and is hereby dismissed. No question for certification has been proposed and the Court finds that none arises.
RENNIE J.
Showing posts with label Canada immigration arranged employment. Show all posts
Showing posts with label Canada immigration arranged employment. Show all posts
Tuesday, May 10, 2011
Wednesday, February 23, 2011
IMMIGRANT LIABLE FOR PAYMENT FOR SERVICES RENDERED
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.
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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