Judge Silverman Re Basyal v. Macs Convenience Stores Inc. 09-18

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Basyal v. Macs Convenience Stores Inc.,

2017 BCSC 1649
Date: 20170918
Docket: S1510284
Registry: Vancouver
Between:
Prakash Basyal, Arthur Gortificaion Cajes, Edlyn Tesorero
and Bishnu Khadka
Plaintiffs
And
Macs Convenience Stores Inc., Overseas Immigration Services Inc.,

Overseas Career and Consulting Services Ltd., and
Trident Immigration Services Ltd.
Defendants
Before: The Honourable Mr. Justice Silverman
Reasons for Judgment
Counsel for the Plaintiffs: C. Gordon

C. Allevato
S. Quail
K. Smith
Counsel for the Defendants, A. Borrell

Macs Convenience Stores Inc.: J. Cabott
Counsel for the Defendants, D. Lebans

Overseas Immigration Services Inc., C. Hermanson
Overseas Career and Consulting Services K. Good, A/S
Ltd., and Trident Immigration Services Ltd.:
Place and Date of Hearing: Vancouver, B.C.

April 3-6, 2017
Place and Date of Judgment: Vancouver, B.C.
September 18, 2017
Basyal v. Macs Convenience Stores Inc. Page 2
INTRODUCTION ....................................................................................................... 3
FACTS ....................................................................................................................... 4
RELEVENT LEGISLATION ..................................................................................... 12
ARGUMENT ............................................................................................................ 13
ANALYSIS ............................................................................................................... 28
CONCLUSIONS ...................................................................................................... 39
INTRODUCTION
[1] The plaintiffs apply for an order certifying this action as a class proceeding.
[2] They argue that the overriding question for the Court, pursuant to s. 4 of the
Class Proceedings Act, R.S.B.C. 1996, c. 50 (CPA) is whether it would be more
fair and efficient to determine the class members claims in a single class proceeding
as opposed to having their claims determined in separate individual proceedings.
[3] The representative plaintiffs (Rep Plaintiffs) submit that the application
meets the requirements of s. 4 of the CPA and furthers the policy objectives of that
legislation and thus should be granted.
[4] The proposed class is one of individuals who were identified by the defendant
Macs Convenience Stores Inc. (Macs) as potential candidates for employment
under the Government of Canadas Temporary Foreign Worker Program (TFWP).
The allegations are that:
1. Macs promised jobs and failed to provide them; and

2. Macs and the other defendants unlawfully collected fees from prospective
temporary foreign workers (TFW) who Macs had agreed to hire.
[5] The defendants argue that the Rep Plaintiffs have failed to meet the
requirements for certification. This action is inherently individual. Investigation of
the individual circumstances of each potential Class Member, necessary to
determine the core claims in this case, overwhelms any potential common issues.
[6] In addition to a disagreement on legal issues, the parties disagree with

respect to many important issues of fact and inferences of fact. This application,
and this decision, is not the place for resolving those differences in fact. Rather, it
addresses the question of which procedure should be employed to resolve those
factual and legal disputes.
FACTS
Submission of Rep Plaintiffs
[7] Each of the Rep Plaintiffs was living and working in the United Arab Emirates
(UAE) when they met a representative of the defendant, Overseas Immigration
Services Inc. (OIS) and/or Overseas Career and Consulting Services Ltd.
(OCCS), (collectively Overseas). Overseas told each Rep Plaintiff that in
exchange for a fee (the Recruitment Fee), Overseas could secure them legal
employment in Canada. Sometimes Trident collected the fee from, or received it on
behalf of, Overseas.
[8] The TFWP is jointly administered by various government departments. It

governs when, and in what circumstances, foreign workers will be permitted to come
and work in Canada on a temporary basis in areas of occupation where there are
labour shortages.
[9] The TFWP has rules that employers, seeking to hire a foreign employee,
must abide by. Among those rules:
1. An employer must first provide a written employment offer to the prospective

worker;
2. The employer must then attempt to secure a positive Labour Market Opinion
(LMO), subsequently renamed a Labour Market Impact Assessment
(LMIA). The purpose of the LMO was to ensure that the employment of the
TFWs would not adversely affect the labour market in Canada.
3. Employers are permitted to use the services of third-party representatives.

The employer must pay for all fees associated with this service and comply
with provincial standards.
[10] In or around 2012, Macs retained Overseas to recruit TFWs to work at its
stores in Western Canada. They authorized Overseas to work on its behalf with the
relevant government agencies to obtain approvals allowing foreign workers to work
in their stores.
[11] In Macs LMO applications, OCCS acted as the third party representative
authorized to act for the employer.
[12] The LMO application for lower-skilled occupations differs from that of higher
skilled occupations:
1. For lower-skilled occupations, it advises that third-party representatives,

acting on behalf of an employer, must have written authorization from the
employer to do so and that employers who wish to have third-party
representation must complete and sign a specific form in that regard.
2. For higher-skilled occupations it notes that third-party representatives are not

authorized to act on behalf of an employer until the employer has completed,
signed, and submitted the appropriate form in that regard.
[13] The appropriate documents were completed and submitted in the

circumstances of this case appointing Kuldeep Bansal of OCCS as Macs
representative.
[14] All of the potential class members were recruited initially in Dubai, by
Overseas to work for Macs under the TFWP.
[15] Despite the prohibition against fees being charged, the Rep Plaintiffs were
advised by a representative of Overseas that they were required to pay an initial fee
installment to Overseas in order to commence the process of obtaining work in
Canada. Each of the Rep Plaintiffs paid a first installment to Overseas.
[16] Later, the Rep Plaintiffs were required to pay a second installment.
Sometime after they paid the initial installments, each received an employment offer,
a signed employment contract with Macs, and a copy of the relevant LMO obtained
by Macs. The Rep Plaintiffs used these documents to apply for and obtain visas to
travel to Canada. They were told by Overseas that they could not travel to Canada
and begin working in the jobs promised to them until they paid a second installment.
Each paid a second installment to Overseas.
[17] The following amounts were charged to the Rep Plaintiffs by Overseas:
Prakash Basyal $8,000

Arthur Gortificaion Cajes $8,075
Edlyn Tesorero $7,500
Bishnu Khadka $7,500 (USD)
[18] Some of the Rep Plaintiffs paid part of the recruitment fee to Trident
Immigration Services Ltd. (Trident) as directed by representatives of Overseas.
[19] The Rep Plaintiffs employment contracts with Macs had substantially
identical terms relating to the following:
1. The term of employment;

2. The number of hours to be worked per week;
3. The percentage of vacation pay;
4. Terms of health insurance;
5. The prohibition against the employer recouping from the employee any costs
incurred in recruiting or retaining the employee;
6. The employers agreement to abide by provincial labour standards; and
7. The employers assurance in providing the availability of reasonable and
proper accommodation.
[20] Basyal and Khadkas contract included a term that Macs would assume the
cost of return transportation from the Middle East to Alberta and back to their home
countries.
[21] Cajes and Tesoreros contract did not include such a term for transportation.
[22] Each of the Rep Plaintiffs signed their employment contract and returned it to
Overseas.
[23] The contract which Macs executed for all of the potential class members,
including those of the Rep Plaintiffs, are precisely or substantively identical to the
sample contract provided by one of the government departments jointly tasked with
administering the TFWP.
[24] They each received a visa that allowed them to travel to Canada. Upon
arrival, they each received work permits. These allowed them to work only in the
jobs for which they had contracted with Macs and for which Macs had received
positive LMOs.
[25] Shortly after arriving in Canada, each of the Rep Plaintiffs learned that there
was no job for them at Macs.
[26] Similarly, numerous other potential class members who had signed an
employment contract with Macs were not provided employment with Macs in
accordance with the terms of their employment contract.
[27] Because they were legally unable to work for any other employer and in any
other position than that authorized in their work permits, they were left unable to
earn income in Canada. As TFWs, they were excluded from access to social
benefits or social services. They also suffered mental and emotional distress. The
fees they had paid were not refunded.
[28] The involvement of Overseas and Trident are as follows:
1. They are related companies under the control of Kuldeep Bansal.

2. Mr. Bansal is a Regulated Canadian Immigration Consultant authorized to
represent and advise workers with respect to the Canadian immigration
systems.
3. Mr. Bansals sister is the sole director of Trident.
4. OIS and OCCS supply foreign workers to local, national, and multi-national
businesses.
5. Some of the Rep Plaintiffs paid part of the recruitment fee to Trident, as
directed by representatives of Overseas.
Submission of Macs
[29] Macs owns a chain of convenience stores that operate throughout Canada.
[30] Starting in or around summer of 2011, Macs had difficulties finding Canadian
workers to employ in corporate stores and corporate food service operations in the
Western region. Between September 2011 and June 2014, Macs employed TFWs
to help address its labour challenges through the TFWP.
[31] Between spring 2012 and June 2014, Macs engaged OCCS to assist in
recruiting TFWs to address labour challenges in parts of Western Canada. At all
material times, OCCS was licensed as an employment agency through British

Columbias Employment Standards Branch.
[32] Macs agreed to pay OCCS a success fee for every TFW that was hired to
work in a Macs corporate store or corporate food service operation.
[33] In or around July 2012, Macs executed a prescribed written authorization

form appointing OCCS to act as its representative for the specific and limited
purpose of submitting LMO applications.
[34] At the same time, OCCS began submitting LMO applications for Macs. A
copy of the appropriate form was attached to each of the LMO applications which
OCCS submitted for Macs between July 2012 and the end of the parties
relationship in 2014.
[35] As part of its recruiting services, OCCS introduced prospective TFW

candidates to Macs. Macs conducted interviews of these individuals by phone or in
person.
[36] During Macs engagement with OCCS, Macs would tell OCCS when it had
an available position to be filled. OCCS would then, pursuant to its written authority,
provide to the appropriate Government of Canada department, the necessary
information about that person. OCCS would then send to Macs a written
employment contract which would be signed by the appropriate Macs employee
and returned to Overseas to give to the prospective TFW candidate. The
employment contracts were based on a template prescribed by the Government of
Canada department responsible for the TFW program.
[37] The employment contracts varied with respect to a number of terms,

depending on the nature and location of the position, including wage rate, hours of
work, job description and duties, length of the contract, and payment of travel costs.
[38] All of the employment contracts were conditional upon the TFW obtaining a
valid work permit and his or her successful entry into Canada.
[39] Further, all of the employment contracts included a number of terms which
were required to be present, including written terms relating to termination.
[40] The recruitment and hiring process took many months, sometimes as many
as 12 for TFW candidates who were not already in Canada. One of the main causes
of delay was government delay in processing visa applications.
[41] In the meantime, Macs labour needs were changing constantly.
[42] While Macs only executed employment contracts when positions were
available, there was always a possibility that the position would no longer be
available by the time the TFW candidates visas, work permits, and travel
arrangements could be finalized.
[43] Macs understood that OCCS advised all candidates who were not already in
Canada to wait until Macs confirmed their job was still available before travelling to
Canada.
[44] Macs has never had a relationship, contractual or otherwise, with the
defendants OIS or Trident.
[45] With respect to Recruitment Fees:
1. Max never authorized OCCS, or any other party, to charge or collect any
payments from TFWs, directly or indirectly, in exchange for securing
employment at Macs. Nor has Macs ever collected or received any such
payments from TFWs, directly or indirectly.
2. Macs understood that OCCS did not charge candidates fees for securing
employment, but did charge candidates fees relating to assisting them with
processing immigration documents and generally navigating the immigration
process. Macs had no involvement in providing any such services or
collecting any fee relating to them.
3. Most of the TFW candidates signed formal written agreements with Overseas.
These agreements state that The client(s) agree that the fees paid are for
services indicated above and are not for job placement and any refund is
strictly limited to the amount of fees paid.
[46] The evidence indicates numerous variable and different circumstances of the
Rep Plaintiffs and the other prospective class members with respect to numerous
different aspects of their dealings with the defendants, including:
1. No binding employment agreement;

2. Successful employment of some TFWs;
3. Some TFWs employed by Macs who resigned;
4. Some TFWs employed by Macs were dismissed for various reasons;
5. Candidates received various representations regarding the availability of jobs;
and
6. Candidates relied on representations in various ways.
Submission of OIS, OCCS and Trident
[47] From approximately the beginning of 2012 until approximately June 2014,
OCCS had an agreement with Macs regarding the provision of recruiting services
(the Recruitment Contract). The services included:
1. Assisting Macs in obtaining LMOs from Service Canada, which authorized

Macs to fill vacancies at stores with foreign workers under the TFWP;
2. Organizing job fairs in Dubai where a representative of Macs could meet and
interview foreign workers for the purpose of offering them jobs under the
TFWP; and
3. Facilitating communications between Macs and the foreign workers that
Macs decided to hire under the TFWP.
[48] Under the Recruitment Contract, OCCS was paid a fee by Macs for each
successful recruitment of a foreign worker by Macs.
[49] A number of Macs stores were operated by an individual known as a dealer.

The foreign workers who were hired by Macs dealers entered into employment
contracts with the particular Macs dealer who hired them.
[50] OCCS did not collect any fees for recruitment or job placement with Macs or
Macs dealers from the foreign workers who signed an employment contract.
Rather, all payments for the recruitment services were paid by Macs or Macs
dealers.
[51] OCCS fulfilled its obligations to Macs and a number of foreign workers hired,
partly as a result of the efforts of OCCS.
[52] The Rep Plaintiffs entered into employment agreements with Macs. The
terms of the employment agreements varied depending on the nature of the job that
the foreign worker was hired to do and the location of the store where the foreign
worker would be employed. In every case, Macs or Macs dealers entered into the
employment contract with the foreign worker directly. A representative of Macs
always signed the employment contract. No one from the OCCS or Trident ever
signed an employment contract as an agent for Macs.
[53] OCCS also offered other services to the foreign workers, including the Rep
Plaintiffs, that were unrelated to the services concerning their employment. OCCS
offered seminars to foreign workers who attended about the process for obtaining a
work permit and provided them with information about immigrating to Canada under
the TFWP.
[54] While neither OCCS or Trident collected any fees for recruitment of job
placement from TFWs who signed an employment contract:
1. OCCS and Trident entered into agreements for the provision of immigration
and settlement services with certain foreign workers who were hired by Macs
and Macs dealers.
2. At no time was it a term of the Recruitment Contract with Macs that workers
offered employment must also enter into an immigration and settlement
service agreement with OCCS. However, most workers hired by Macs did
decide to retain OCCS themselves for this additional purpose.
3. Most of the foreign workers hired by Macs who retained OCCS to provide
immigration and settlement services, signed formal written agreements with
OCCS for the provision of those immigration and settlement services.
4. The terms of the written retainer agreements that foreign workers hired by
Macs signed with OCCS specifically confirmed that The clients agree that
the fees paid are for services indicated above and are not for job placement
and any refund is strictly limited to the amount of fees paid.
5. Under the arrangements with OCCS and Trident, foreign workers hired by
Macs were required to pay the balance of the agreed fees for immigration
and settlement services when they had obtained their visa to come to Canada
under the TFWP. The triggering event for payment of this amount was
completely independent of any events related to the hiring of the foreign

worker by Macs, their commencing employment in Canada, or their
satisfaction with their employment.
[55] Trident has an agreement with OCCS to assist with the provision of
immigration and settlement services to foreign workers who contracted with Macs
for employment in Canada. Essentially, Trident took on the overflow, providing
immigration and settlement services to foreign workers when OCCS was too busy.
[56] Where Trident provided immigrant and settlement services to a foreign

worker, Trident was paid directly by the worker. There was no payment from OCCS
to Trident.
[57] At no time was Trident, or its principal, involved in providing recruitment

services to Macs under the Recruitment Contract.
RELEVENT LEGISLATION
[58] The requirements for certification of an action as a class proceeding are set
out in s. 4 of the Class Proceedings Act, R.S.B.C. 1996, c. 50 (CPA):
Class certification
4 (1) The court must certify a proceeding as a class proceeding on an
application under section 2 or 3 if all of the following requirements are met:
(a) the pleadings disclose a cause of action;
(b) there is an identifiable class of 2 or more persons;
(c) the claims of the class members raise common issues,
whether or not those common issues predominate over issues
affecting only individual members;
(d) a class proceeding would be the preferable procedure for the
fair and efficient resolution of the common issues;
(e) there is a representative plaintiff who
(i) would fairly and adequately represent the interests of
the class,
(ii) has produced a plan for the proceeding that sets out a
workable method of advancing the proceeding on behalf of
the class and of notifying class members of the
proceeding, and
(iii) does not have, on the common issues, an interest that

is in conflict with the interests of other class members.
(2) In determining whether a class proceeding would be the preferable
procedure for the fair and efficient resolution of the common issues, the court
must consider all relevant matters including the following:
(a) whether questions of fact or law common to the members of
the class predominate over any questions affecting only individual
members;
(b) whether a significant number of the members of the class have
a valid interest in individually controlling the prosecution of
separate actions;
(c) whether the class proceeding would involve claims that are or
have been the subject of any other proceedings;
(d) whether other means of resolving the claims are less practical
or less efficient;
(e) whether the administration of the class proceeding would
create greater difficulties than those likely to be experienced if
relief were sought by other means.
ARGUMENT
General The Rep Plaintiffs
[59] The Rep Plaintiffs argue that the FACTS form the basis for various causes of
action against the defendants, and that the circumstances under which those causes
of action arose are precisely those anticipated by the CPA. Therefore, they seek the
certification which is the basis of this application.
[60] The Rep Plaintiffs submit that this application for certification meets the test
set out in s. 4 of the CPA:
1. The pleadings disclose a reasonable cause of action s. 4(1)(a);
2. There is an identifiable class s. 4(1)(b);
3. The claims of the class members raise common issues s. 4(1)(c) ;
4. A class proceeding would be the preferable proceeding s. 4(1)(d); and
5. There are appropriate Rep Plaintiffs s. 4(1)(e).

[61] The burden is on the Rep Plaintiffs to establish:
1. With respect to s. 4(1)(a), that it is not plain and obvious that the pleadings
disclose no reasonable cause of action.
2. With respect to ss. 4(1)(b) through (e), that there is some basis in fact for
each of those subsections.
[62] The Rep Plaintiffs argue that each of the foregoing burdens have been met.
General The Defendants
[63] Each of the defendants deny wrongdoing on their own behalf, and deny any
responsibility for whatever wrongdoings, if any, that any of the other defendants may
have committed.
[64] However, they argue that the determination with respect to the merits of those
allegations should be addressed in individual proceedings, leading to individual
trials, with a single plaintiff each. They argue that this is not the type of case
anticipated by the CPA.
[65] There is not a single over-arching issue here that makes this inappropriate for
class proceedings. Rather, the most important reason is that it is not manageable
as a class proceeding.
[66] For the most part, and with respect to most of the issues in dispute, all of the
defendants rely on the same arguments. There are, however, several areas where
Overseas and/or Trident advance an independent argument, particularly with
respect to the issue of agency.
The Pleadings Disclose a Cause of Action s. 4(1)(a)
[67] The burden is on the Rep Plaintiffs to establish that it is not plain and obvious
that the pleadings disclose no cause of action. The Rep Plaintiffs have satisfied this
burden.
[68] During the course of argument, the Rep Plaintiffs filed an amended notice of
civil claim (ANOCC) abandoning two of the previous pleaded causes of action:
negligent misrepresentation and fraudulent misrepresentation.
[69] The Rep Plaintiffs argue that the remaining causes of action set out in the
ANOCC do disclose a cause of action, and sufficiently plead all the requisite
elements of those causes of action. Specifically, they take this approach with
respect to:
1. Breach of contract;
2. Conspiracy;
3. Unjust enrichment and waiver of tort; and,
4. Breach of fiduciary duty.
[70] The Rep Plaintiffs respond to the defendants argument that there are some
causes of action for which there is no evidence concerning mandatory elements.
The Rep Plaintiffs point to the evidence which they claim counters this particular
argument.
[71] The Rep Plaintiffs responds to the defendants argument that the ANOCC
sometimes pleads conclusions without pleading any supporting material or
particulars. In this regard, the Rep Plaintiffs point to the evidence which they claim
counters this particular argument.
[72] The Rep Plaintiffs argue that the evidence establishes an agency relationship
between themselves and the defendants. This relationship arises out of the work
that the defendants did on behalf of the Rep Plaintiffs in assisting them to meet,
interview, vet, provide and receive information, eventually hire, and all the necessary
arrangements concerning the requirements to be fulfilled before they could come to
Canada, together with all the other related aspects of their dealings with the Rep
Plaintiffs by agreement with Macs.
[73] One of the issues is whether the Rep Plaintiffs relied on Macs, or on one or
more of the other defendants for representations that were made that induced the
Rep Plaintiffs to come to Canada.
[74] The Rep Plaintiffs provide the following explanation with respect to which
causes of action are advanced against which defendant(s):
Breach of Contract Macs

Conspiracy All defendants
Breach of Fiduciary All defendants except
Duty Trident
Unjust Enrichment All defendants
Alternative Remedy: All defendants
Waiver of Tort
Submission of Macs
[75] The Rep Plaintiffs have failed to satisfy the burden upon them to establish
that it is not plain and obvious that their alleged causes of action will fail at trial.
[76] With respect to the individual causes of action, there are two fundamental
problems with the way this case has been framed by the Rep Plaintiffs in their
ANOCC:
1. In some cases, there is no evidence at all with respect to mandatory elements

of the cause of action they pursue; and,
2. In some cases, the Rep Plaintiffs plead conclusions without pleading any
supporting material facts or particulars. They do this in order to give their
claim a false air of commonality.
[77] The Rep Plaintiffs failure to plead elements of their claims with reference to
material facts and particulars makes it difficult to proceed with the analysis in a
meaningful way.
[78] Although the Rep Plaintiffs have abandoned the causes of action of
fraudulent and negligent misrepresentation in their ANOCC, allegations of dishonest
representations are still present in the claims for breach of contract, conspiracy, and
breach of fiduciary duty.
[79] With respect to the assertion of agency:
1. No claim based on an allegation of agency between Macs and Trident

satisfies the cause of action requirement because the ANOCC contains no
pleading regarding an agency relationship between Macs and Trident.
Further, no claim based on an allegation of agency between Macs and
OCCS or OIS satisfies the cause of action requirement because the ANOCC
contains no material facts that could bring the Rep Plaintiffs allegation of
agency within the basic legal requirements necessary to establish agency;
and,
2. For an Agency relationship to exist in law, an agent must be in a position to

legally bind the principal, for example, enter a contract on behalf of the
principal. No such thing is in evidence here.
[80] With respect to the asserted cause of action of breach of contract, the
ANOCC contains conclusory allegations of various breaches without any supporting
material fact.
[81] With respect to the asserted cause of action of unlawful means conspiracy:
1. There is no proper pleading of an agreement between Macs and the other

defendants; and,
2. There is no proper pleading of unlawful conduct by Macs.
[82] With respect to the asserted cause of action of unjust enrichment, the
ANOCC does not plead an unjust enrichment or benefit to Macs.
[83] With respect to waiver of tort, the Rep Plaintiffs do not plead this as a cause
of action but as an alternative remedy.
[84] With respect to the asserted cause of action of breach of fiduciary duty:
1. The claim fails because there is no recognized special duty between

prospective employers and employees that gives rise to a fiduciary duty;
2. The ANOCC does not include the necessary hallmarks to give rise to an ad
hoc fiduciary relationship; and,
3. The ANOCC suggests conclusions but does not include a sufficient pleading
of material facts in support of an undertaking by Macs to act in the best
interests of the Rep Plaintiffs and class members.
Submission of Overseas and Trident
[85] They rely upon the same argument of Macs with respect to the pleadings not
disclosing a cause of action with respect to the Rep Plaintiffs claim for conspiracy.
[86] With respect to the Rep Plaintiffs claim in agency, they argue as follows:
1 While the Rep Plaintiffs claim that Overseas acted as agents for Macs, there
are no material facts pleaded that indicate any agency relationship between
Macs and Overseas.
2 There is no pleading that alleges any agency or relationship between Trident

and Macs.
There is an Identifiable Class s. 4(1)(b)
[87] The burden on the Rep Plaintiffs is some basis in fact.
[88] Section 7(d) and (e) of the CPA states that certification of a class proceeding
must not be refused simply because the number of class members or the identity of
each class member is not known or because the class includes a sub-class whose
members have claims that raise common issues not shared by all class members.
[89] The Rep Plaintiffs propose that their original suggestion of the class definition
be amended in response to various concerns expressed by the defendants. They
now propose the following class definition:
All persons who, on or after December 11, 2009 to the opt-out/opt-in date set
by the Court, made payments to Overseas Immigration Services Inc.,
Overseas Career and Consulting Services Ltd., and/or Trident Immigration
Services Ltd. and who were thereafter provided with employment contracts to
work at Macs Convenience Stores in British Columbia, Alberta, the
Northwest Territories and Saskatchewan under Canadas Temporary Foreign
Worker program.
[90] The Rep Plaintiffs argue that this class definition meets the criteria of
s. 4(1)(b). The class is defined with reference to objective criteria: persons either did
or did not make payments to the named parties in exchange for securing
employment in Canada, and were or were not provided employment contracts as set
out. The class is bounded and not unlimited, the class is sufficiently numerous: the
Rep Plaintiffs suggest perhaps as many as 450 people; the defendants suggest
closer to 250.
[91] The argument that there are so many differences in the contracts that they
are effectively different contracts and that, therefore, the potential plaintiffs cannot be
members of the same class, has no merit. To a large extent, the Rep Plaintiffs
agree and acknowledge that those who do not fall within the confines of the class
definition are not members of the class, nor are they intended to be members of the
class.
[92] The employment contracts to work referred to in the class definition is a

standard form contract.
[93] The only variations in contracts are inconsequential in terms of determining

whether or not there should be a class proceeding. These variations primarily refer
to:
1. Wage rate.
2. Location of the Macs.
3. Whether the workers were higher or lower skilled.
[94] Section 6(2) of the CPA requires that persons resident in British Columbia
and persons not resident in British Columbia are divided into sub-classes along
those lines. Accordingly, the Rep Plaintiffs propose that the class be divided into
two sub-classes, one of persons resident in British Columbia and one of persons not
resident in British Columbia.
Submission of Macs
[95] The Rep Plaintiffs have not satisfied the burden that there is some basis in
fact with respect to this requirement.
[96] The CPA requires an identifiable class of two or more persons who have
claims that raise common issues. The Rep Plaintiffs fail in satisfying this pre-
requisite of the CPA:
1. The class is not rationally related to the alleged common issues. It is

overbroad in that it includes many persons who have no claim against Macs.
Further, the class is not objectively determinable and embeds an assumption
about the merits of the lawsuit that is contested because it is defined with
reference to the purpose for which proposed class members made payment
to other defendants;
2. The proposed class includes different categories of persons with no claims,

including:
a) people who were employed, people who got jobs at Macs and people who
worked the entire time;
b) people who paid fees to Trident, and therefore have no claim against an
agent of Macs;
c) people with no travel cost claims;
d) people who have come to Canada; and,
e) people who dropped out;
3. The proposed class is overbroad because it includes:
a) individuals who never actually entered into a binding employment

contract with Macs;
b) individuals who were in fact employed by Macs in various different

locations;
c) individuals who were employed by Macs then resigned their positions

and terminated their contracts before the end of the term;
d) individuals who were employed by Macs then properly dismissed from

their positions before the end of the term of their contracts;
e) individuals who were told by Macs or OCCS that the job position they
were seeking was not available and they should not travel to Canada;
and,
f) individuals who did not leave their country of citizenship to pursue

employment with Macs but were already in Canada and therefore did
not pay any fee to any of the defendants.
4. There being different categories of different claims is not necessarily fatal to

certification. The Rep Plaintiffs could suggest sub-classes, but they have not
done so.
[97] The proposed class is not objectively determinable:
1. The proposed class embeds an assumption about the lawsuit that is

contested and not objectively determinable. The proposed class is defined
with reference to the purpose for which prospective class members made
payments to OCCS and OIS, or Trident: securing employment;
2. The purpose for which persons made payments to the other defendants is not
objectively determinable. It is not a common issue and it would require a
subjective individual inquiry; and,
3. The Rep Plaintiffs ignore the fact that the purpose for which persons made
any payment is a contested issue, and is only determinable upon individual
inquiry.
[98] Overseas and Trident argue that there are flaws in the Rep Plaintiffs class
definition. In this regard they rely upon the same argument made by Macs.
Claims of Class Members Raise Common Issues s. 4(1)(c)
[100] Common issues are defined in s. 1 of the CPA as meaning:
(a) common but not necessarily identical issues of fact,

(b) common but not necessarily identical issues of law that arise from
common but not necessarily identical facts;
[101] Section 4(1)(c) of the CPA mandates that one of the requirements for
certification is that the claims of class members raise common issues, whether or
not those common issues predominate over issues affecting only individual
members.
[102] The principles relevant to the commonality requirement, as set out by the
Supreme Court of Canada, are as follows in Pro-Sys Consultants Ltd. v. Microsoft
Corporation, 2013 SCC 57:
1. The commonality question should be approached purposively.
2. An issue will be common only where its resolution is necessary to the

resolution of each class members claim. However, necessity does not
require that the issue be determinative of the class members causes of
action. It need only move the litigation forward;
3. It is not essential that the class members be identically situated vis a vis the
opposing party.
4. It is not necessary that common issues predominate over non-common

issues. However, the class members claims must share a substantial
common ingredient to justify a class action.
5. Success for one class member must mean success for all. All members of
the class must benefit from the successful prosecution of the action, although
not necessarily to the same extent.
[103] The burden on the Rep Plaintiffs is described in Grant v. Canada (Attorney
General), [2009] O.J. No. 5232 at para. 21 where the court says: ...that the
evidence must show merely that there is some basis in reality for the assertion that
the Class members have claims raising issues in common with the claims of the
plaintiff.
[104] To be successful on this aspect of the case, the defendants would have to
show that there is no basis in the evidence for the claims asserted by the Rep
Plaintiffs: Lambert v. Guidant Corp., [2009] O.J. 1910 at para. 68.
[105] With respect to the evidence in this case, the Rep Plaintiffs argue that the
foregoing requirements for commonality are present in, among other things, the
following aspects of this case:
1. Breach of contract there is commonality between the agreements reached

between Macs and each of the Rep Plaintiffs.
2. Agency each of the Rep Plaintiffs dealt with Macs, and/or one or more of
the other defendants acting on behalf of Macs.
3. Conspiracy each of the Rep Plaintiffs was recruited by the defendants

acting in concert to recruit foreign workers in an unlawful way including the
charging of recruitment fees and the failure to provide what was promised in
the contracts.
4. Unjust enrichment and waiver of tort the defendants received recruitment

fees from class members which were paid in exchange for securing
employment contrary to statute. The fees were also contrary to the terms of
the Rep Plaintiffs and the class members standard-form contracts. The
defendants were unjustly enriched as a result.
5. Breach of fiduciary duty each of the Rep Plaintiffs and class members
shared a similar relationship with the defendants who recruited and promised
to employ the Rep Plaintiffs and class members. In these relationships, each
of the defendants implicitly undertook to act in the best interests of the Rep
Plaintiffs and class members. In each case, they failed to do so.
6. Remedy and damages if the common issues are resolved in the Rep
Plaintiffs and class members favour, then they will be entitled to monetary
relief and damages. Quantum may reasonably be determined on an
aggregate basis rather than requiring proof from each individual class
member. Failing that, all that will remain to be resolved as individual matters
will be the question of quantum.
[106] This case is about the interpretation of a standard form contract. That issue
is common to the entire class. The defence arguments suggesting issues of
uncommonality are simply inconsequential and do not detract from the fact that there
is a single contract that is common to them all.
[107] There are no individual issues to be decided with respect to the issues of
remedy and damages. Once monetary and liability is established with respect to
any of the causes of action, then the only individual aspect of damages is
determining the quantum. The entitlement to damages is a common issue even if
quantum is not.
Submission of Macs
[109] With respect to common issues:
1. The Rep Plaintiffs proposed common issues are inherently individual.
2. The evidence does not establish some basis in fact for commonality.
3. The Rep Plaintiffs have adopted a global assessment approach to their

argument on the common issues requirement. The Court is required to
assess each proposed common issue individually to determine if the
evidentiary standard has been met for each.
4. To a large extent, the Rep Plaintiffs own pleadings and argument

demonstrate that the common issues proposed by them could not be resolved
commonly. Throughout their pleading and argument, the Rep Plaintiffs refer
to some of the class members. The obvious question remains unanswered:
which class members?. Answering that question will require individual
inquiry.
5. The Rep Plaintiffs own pleadings and written submissions demonstrate that
this is not a case involving allegations or evidence of systemic wrong in an
employment situation. This is a case involving individual circumstances
where some class members had one experience and some class members
had others.
[110] They argue that there are no proper common issues. Once again, they rely
upon the arguments advanced by Macs. In addition, they argue as follows:
1 In order to decide the various agency issues, the Court will have to consider
what was said by representatives of Overseas and Trident to each individual
foreign worker. These interactions will necessarily have varied from worker to
worker.
2 With respect to the Rep Plaintiffs claims concerning contract, the formation,
terms and enforceability of any oral terms of the contract cannot be assessed
across the Class. The assessment depends on individual circumstances and
therefore does not qualify as common issues.
3 The question of damages are not common, but will vary from individual to
individual.
[111] Trident argues that the evidence establishes that it was not involved at all in
the job fairs, recruitment, and things that happened that led up to whatever
relationship existed between the Rep Plaintiffs and Macs. Therefore, there is no
agency between Macs and Trident.
[112] Even on the Rep Plaintiffs theory of this case, individual issues will dominate
these proceedings.
A Class Proceeding Would be the Preferable Procedure s. 4(1)(d)
[114] The Plaintiffs must show some basis in fact that a class proceeding is a
preferable proceeding for the fair and efficient resolution of the common inquiry.
[115] The Court is required to have regard to those factors set out in s. 4(2) of the
CPA, as set out earlier in this Judgment. It is not an exhaustive list.
[116] The question of preferability must be considered with reference to the policy
considerations of judicial economy, access to justice, and behaviour modification:
Hollick.
[117] Counsel agree that:
1. Preferability is referred to in the general sense and means compared to the

alternative. The alternative is a series of Small Claims trials.
2. Commonality is the key to the issue of preferability and to the issues of

efficiency and manageability.
Submission of Macs
[119] Even if the class is certified, it will essentially require individual trials because
of the different variables, which are indicative of a lack of commonality.
[120] Even if there are certain limited issues common to the proposed class, it is
not a situation where a class proceeding is the preferable procedure. Even if it were
fair, it would be unworkable because of the individual evidence in fact finding that
would be necessary. It would fail to satisfy the test that it be fair, efficient and
manageable.
[121] While I am entitled to consider how many Small Claims trials might be needed
if they proceeded individually, I must also consider how many individual trials might
be required if the class is certified. The defendants argue that these will be
numerous and with respect to a variety of issues.
[122] Considering the time and expense associated with some of the procedural
apparatus in a class proceeding (such as notice) and with litigation in the Supreme
Court (such as examinations for discovery and production of documents), it is not
obvious how a class proceeding offers advantages over Small Claims actions.
[123] In view of the highly individualistic nature of the potential class members
circumstances, the proposed class action would not advance the principle of judicial
economy and access to justice. Far from promoting judicial economy, it would settle
the Court with a large class action that has been cobbled together with an
insufficient legal and evidentiary foundation.
[124] These defendants make the same arguments as Macs.
There is a Suitable Representative Plaintiff s. 4(1)(e)
[126] Section 4(1)(e)(ii) requires the Rep Plaintiffs to produce a plan that sets out a
workable method of advancing the proceeding on behalf of the class and notifying
class members of the proceeding.
[127] The Plaintiffs have produced such a plan and argue that it is a satisfactory
one and fulfills the requirements of the section.
[128] The Rep Plaintiffs litigation plan provides a basis for certification and can be
amended as or if required including input from the defendants and the Court. The
Rep Plaintiffs litigation plan need not describe in detail how remaining individual
issues will be resolved because at this stage it is not known whether and what
individual issues will require individual resolution.
Submission of Macs
[129] The Rep Plaintiffs have not advanced a sufficient litigation plan. It is
deficient in numerous ways, including:
1. It is too simplistic. It does not have the necessary detail to address class
action issues.
2. It is true that the court has ability to amend a litigation plan, but here there is
too much detail lacking.
3. Even if it did have sufficient detail, it would still show a lack of commonality.
4. It lacks detail with respect to the following:

a. Communication and reporting to class members. There is no indication of
how they will be contacted. It may be difficult to report to them and to
receive instructions.
b. Notice there is no plan for dissemination of notice. The Class is diverse

and widespread. How will they be located? What process will be used?
c. Who will administer the opt-in/opt-out process? Counsel themselves? Or

will there be an administrator?
d. How long a delay will there be for potential class members to op-in if they
choose to?
e. There is no proposed litigation schedule.
f. There are no proposed dates and procedure for document exchange and
management.
g. Will all the plaintiffs be available for examination for discovery? Where?
In Vancouver?
h. Who, from the defendants, will the plaintiffs want to discover?
i. What will be the process for management of the remaining issues after the
common issues are determined? What type of procedure? Mini-trials?
Arbitrations?
ANALYSIS
General
[130] While the burden is on the Rep Plaintiffs to establish that they have met the
requirements of s. 4, the evidentiary burden is not onerous: Peppitt et al v. Nicol et
al, [1993] O.J. No. 2722 (Gen. Div.).
[131] The burden on the applicant is different under s. 4(1)(a) than it is under
s. 4(1)(b) through (e).
[132] With respect to s. 4(1)(a), the requirement is satisfied so long as it is not plain
and obvious that the pleadings disclose no reasonable cause of action: Marshall v.
United Furniture Warehouse Limited Partnership, 2013 BCSC 2050 at para. 62;
Brogaard v. Canada (Attorney General), 2002 BCSC 1149.
[133] With respect to ss. 4(1)(b) through (e), the test is different. The Rep Plaintiffs
must establish some basis in fact for each: Pro-Sys Consultants Ltd. v. Infineon
Technologies AG, 2009 BCCA 503, leave to appeal refused [2010] SCCA 32 at
para. 65. In other words, the burden is on the Rep Plaintiffs to establish that there is
some basis in fact concerning ss. 4(1)(b) to (e):
(b) identifiable class;

(c) common issues;
(d) preferable procedure; and
(e) a suitable representative plaintiff.
[134] The CPA must be interpreted liberally so as to give effect to certain policy
considerations that underlie the CPA and in light of which the test must be applied.
Those policy considerations are judicial economy, improving access to justice, and
ensuring that actual and potential wrongdoers modify their behaviour: Hollick v. City
of Toronto, 2001 SCC 68; Pro-Sys Consultants Ltd. (BCCA), supra, at para. 64.
[135] Both parties referred me to the case of Dominguez v. Northland Properties

Corp. (c.o.b. Dennys Restaurants), 2012 BCSC 328 (Dominguez (Dennys)). This
was a decision with respect to an application for certification where the
representative plaintiff was a temporary foreign worker who was recruited in the
Philippines for the purpose of working at Dennys in Canada. Issues included for
being required to pay substantial fees to proceed and complete the hiring process,
as well as breaches of contract, the failure to be provided with as much work as was
promised and other matters similar to the case at bar. The defendants argue that
there are significant differences between that case and this and it is therefore of little
assistance to the Court. However, I am satisfied that the facts in Dominguez
(Dennys) and the legal issues it raises, are remarkably similar to that of the case at
bar.
The Pleadings Disclose a Cause of Action s. 4(1)(a)
[136] The burden is on the Rep Plaintiffs to establish that it is not plain and obvious
that the pleadings disclose no reasonable cause of action.
[137] With respect to breach of contract, the following has been pleaded:
1. The relevant provisions of the standard form employment contract;

2. That the Rep Plaintiffs and members of the proposed class were not
provided with employment;
3. Precisely which terms of the employment contracts were breached.
[138] With respect to agency, the following has been pleaded:
1. Macs entered into an agreement with Overseas authorizing Overseas to act

as its agent to recruit workers from abroad to work in Macs stores.
2. Each Rep Plaintiff paid an initial recruitment fee to Overseas.
3. Overseas then arranged for an interview with Macs.

4. Each Rep Plaintiff then received an employment contract and an LMO to work
at Macs.
5. Each LMO identified Overseas as a third party authorized to act on behalf of

Macs.
6. While the Rep Plaintiffs dealt with Overseas, they were later directed to make
payments to Trident which did not provide them with any services but which
held the money provided by the Rep Plaintiffs. Specific acts of OIS, OCCS,
and Trident are pleaded suggesting that these three organizations functioned
together in assisting Macs in this regard.
[139] With respect to conspiracy:
1. The Rep Plaintiffs will only pursue a claim of unlawful means conspiracy, not
predominant purpose conspiracy (conspiracy to injure). There is no
allegation of intent to injure and none need be proven.
2. The pleadings indicate that Overseas acted as agents for Macs. It is not
necessary that the pleadings suggest that Macs directly collected or
benefited from the recruitment fees, nor is it necessary that any such thing be
proven. Rather, Macs would be liable for the actions of its agent on its
behalf, including collecting the recruitment fees. That is what the pleadings
assert. In this context, it is not necessary for Macs to directly collect or
benefit from the recruitment fees.
[140] With respect to unjust enrichment and waiver of tort:
1. Macs argues that the claims for unjust enrichment and waiver of tort are
defectively pleaded because the Rep Plaintiffs do not allege that Macs
directly received the benefit of the fees paid to the other defendants.
2. However, the Rep Plaintiffs have pleaded that Macs agent collected these
fees on Macs behalf. On that basis, Macs would be liable for the actions of
its agent acting on its behalf, including the collection of unlawful fees in
violation of the contracts between Macs and the class members, even if
Macs did not directly receive a benefit.
[141] With respect to breach of fiduciary duty, the pleadings allege material facts in
support of an undertaking. The defendants recruited and promised to employ the
Rep Plaintiffs and class members and impliedly undertook to act in their best
interests.
[142] On a certification application, the test is not whether the facts pleaded will
prevail at trial. Rather, the test is whether it is not plain and obvious that the
pleadings disclose no reasonable cause of action. The burden is on the Rep
Plaintiffs.
[143] With respect to each of the foregoing, I am satisfied that it is not plain and
obvious that the pleadings disclose no reasonable cause of action. It follows that the
Rep Plaintiffs have satisfied the burden on them.
[144] With respect to breach of contract, agency, conspiracy, unjust enrichment and
waiver of tort, and breach of fiduciary duty, I am satisfied that the burden has been
met and that the Rep Plaintiffs have therefore satisfied s. 4(1)(a) of the CPA.
There is an Identifiable Class s. 4(1)(b)
[145] The burden is on the Rep Plaintiffs to establish that there is some basis in
fact for this requirement.
[146] The applicant must define the class by reference to objective criteria, that is,
without reference to merits of the action: Hollick, supra.
[147] It is a complete answer to the objections of the defendants that the Rep
Plaintiffs agree that there are numerous persons with a variety of different
considerations than those of the Rep Plaintiffs. The reason this is a complete
answer is because the Rep Plaintiffs also agree that these persons will simply not be
members of the identifiable class if their circumstances do not fit the class definition.
[148] The defendants main objections to the class description is that many people
do not fit the class. The Rep Plaintiffs do not disagree with that. Rather, they
indicate that the reason many people do not fit the class is that because they are in
fact, not in the class.
[149] It is not essential that the class members be identically situated vis a vis the
opposing party. However, the class members claims must share a substantial
common ingredient to justify a class action: Pro-Sys Consultants Ltd., supra.
[150] During the course of the hearing, the class definition was amended. The
amended class description has the following elements:
1. Persons who made payments to one or more of the defendants.
2. On or after December 11, 2009 to the opt-out/opt-in date set by the court.
3. Who were there after provided with employment contracts to work at Macs in
various named locations.
4. Under Canadas Temporary Foreign Worker Program.
[151] The Rep Plaintiffs concede that potential class members will not be class
members unless all four of those elements apply to them.
[152] Some people may have signed a significantly different type of contract and
the Rep Plaintiffs agree that they will not be class members.
[153] On the basis of the foregoing, I am satisfied that there is some basis in fact
for this requirement.
Claims of Class Members Raise Common Issues s. 4(1)(c)
[155] With respect to breach of contract:
1. There are a number of decisions of the courts which have concluded that the
question of interpretation of standard form of contracts is a common issue:
Dominguez (Dennys); Scott v. T.D. Waterhouse Investors Services
(Canada) Inc., 2001 BCSC 1299; Glover v. Toronto (City), [2009] 70 C.P.C.
(6th) 303 (O.S.C.J.); Lam v. University of British Columbia, 2010 BCCA 325.
2. In Dominguez (Dennys), the court said this:
[112] There was considerable evidence about the different

contracts and the different terms that are found in those
agreements. Ms. Dominguez contends that at all material times,
the defendants used a standard form contract, using the HRSDC
sample contract, and that all these employment contracts have
identical or virtually identical terms. The defendants disagree,
asserting that there are 12 different forms of the 75 written
employment agreements, all with different terms.
...
[122] The defendants say that there are no common issues and
that a determination of these contract issues requires an individual
assessment on a case-by-case basis.
...
[149] In conclusion, I find that the contract issues formulated by
Ms. Dominguez, which include the duty of good faith and fair
dealing, are common issues. ...
[156] With respect to agency:
1. Macs argues that there is no basis in fact to support the proposed common
issue related to the scope of authority conferred on Overseas.
2. However, via the form in which Macs authorized Overseas to act on its
behalf, and which was submitted with every LMO application for every class
member, Macs further agreed to ratify and confirm all of its representatives
actions as a result of the appointment.
3. Consideration of the scope of the agency is not made from the perspective of
the principal and agent alone. However, neither does it require a
consideration of the perspective of each individual class member.

[106] In my view, one of the key questions in this litigation is the
status of ICEA and Luzern in relation to the defendants in terms of
ICEAs dealings with the temporary foreign workers that they
recruited for the defendants. That will be decided on the basis of
either express or apparent authority. It will not require a detailed
examination of each employees circumstances or evidence in that
the focus will be on the agreements and dealings between ICEA
and Luzern and the defendants. To that extent, a determination
as to whether they were acting as agents of the defendants and if
so, are the defendants liable to repay the agency fees, will
materially advance this litigation in relation to most of the putative
class.
[157] With respect to conspiracy:
1. The unlawful conduct and/or the collection of recruitment fees does not
necessitate individual inquiry.
2. Every employment contract of every member of the class had an identical

provision prohibiting Macs from recouping, from the employee, costs incurred
in the course of recruiting the employee.
[158] With respect to unjust enrichment:
1. The Rep Plaintiffs do not allege that Macs did not pay employees who
worked at Macs for the work they performed.
2. Rather, they allege that Macs did not provide the employment promised in
the contracts by either not providing a job at all, or by not providing the full
term of promised employment.
3. Macs was also enriched by not having to pay the costs of recruiting the
migrants pursuant to the terms of their employment contracts.

[161] Ms. Dominguez also asserts that there are common issues
under the claims relating to unjust enrichment. The proposed
common issues are firstly, whether the defendants have been
enriched by failing to pay for the requisite hours per week, by
failing to pay for all hours worked and by failing to reimburse the
employees for the agency fees and the airfare and secondly, if
there was enrichment, was there a corresponding deprivation.
...
[166] I adopt the reasoning in Bodnar and also find that in this
case, it is possible to determine all elements of the unjust
enrichment claim on a group basis. I also note that claims of
unjust enrichment arising from allegations that union dues were
improperly paid were certified in Vasquez at para. 63.
5. I arrive at the same conclusions in this case.
[159] With respect to breach of fiduciary duty:
1. The defendants argue that the existence of a fiduciary duty, as well as the
breach of any such duty, would require individual inquiry.
2. The facts pleaded provide some basis in fact for the assertion that a fiduciary
duty owed by the defendants to the Rep Plaintiffs is common to all class
members.
3. It is acknowledged that there is some variation in the nature of the breaches,

in that some class members were provided employment and some were not,
but it is common to all that the fiduciary duty was breached.
4. Therefore, there may be a variation in the damages flowing from the breach
but the question of whether the duty was breached is common.

[158] In this case, the claim of breach of fiduciary duty is

advanced on the basis of the shared experience of these
temporary foreign workers. A consideration of that issue will
involve a review of the relevant contract terms and the
circumstances which directly arise from the employment
relationship with the defendants and which affect all of them
including the TFWP, the LMOs, the restrictive terms of the work
permits and the acknowledged goals of the workers to achieve a
more permanent status in Canada. Internal policies of the
defendants in relation to these workers, such as the
acknowledged policy of the defendants to reduce the hours of
these workers before any other type of worker would also be
relevant. These factors do not depend on any individual
assessment of each and every putative class member.
6. I arrive at the same conclusions in this case.
[160] With respect to remedy and damages:
1. Macs argues that these would require individual inquiry.
2. The resolution of the common issues would establish monetary liability to the
class. If the Rep Plaintiffs succeed in establishing the causes of action, all
that will remain will be to determine the quantum of losses each class
member suffered.
3. Similarly, the quantum of punitive damages is not a common issue. It is the

availability of punitive damages which is the issue.
4. The court came to the same conclusions in Dominguez (Dennys).
[161] With respect to each of the foregoing, I am satisfied that the claims of the Rep
Plaintiffs and of other potential plaintiffs raise common issues with respect to each of
the foregoing causes of action, and that the litigation will be significantly advanced if
those issues are dealt with by the courts in a common way.
A Class Proceeding Would be the Preferable Procedure s. 4(1)(d)
[164] Section 4(2) of the CPA mandates that the court must consider all relevant
matters in determining whether a class proceeding would be the preferable
procedure for the fair and efficient resolution of the common issues, including five
specified matters set out at s. 4(2)(a)(e).
[165] The s. 4(2) factors are not an exhaustive list.
[166] In addition to the five enumerated factors, preferability must be examined with
reference to the three principle advantages of the class action regime:
1. Judicial economy;
2. Access to justice; and
3. Behaviour modification.
[167] Concerning the factors set out in s. 4(2) of the CPA:
(a) Do the questions of fact or law predominate?
[168] I am satisfied that the essence of this case involves an interpretation of the
standard contractual terms, and whether they were breached. The defendants
argue that there are so many variables with respect to that, that the case will spiral
into an unmanageable series of individual proceedings.
[169] Individual issues do not outweigh the common issues in this case. Individual
trials will not be required for most of the claims at issue. The employment contracts
and Macs payroll documents will show (for those who did work) the record of hours
worked and wages paid.
[170] I am satisfied that those common issues are at the core of this litigation
together with the relationship between the various defendants and how that affected
their obligations.
[171] Resolving the foregoing, in a single proceeding, will materially advance the
litigation.
(b) Do significant class members have an interest in individually controlling

separate actions?
[172] There is no evidence to suggest that any class members had such an
interest, nor have any of the parties suggested that this is so.
(c) Would the class proceedings involve claims that are or have been the
subject of other proceedings?
[173] The answer is no.
[174] In the circumstance of this case, it will be sufficient to discuss ss. (d) and (e)
together:
(d) Are there other means of resolving the claims that are less practical or
less efficient?
(e) Whether the administration of the class proceeding would create

greater difficulties...
[175] The defendants argue that hundreds of Small Claims actions would be more
efficient and practical than the potentially equal number of common issue
proceedings which (the defendants argue) will invariably be necessary if this
certification application is successful.
[176] In Thorburn, v. British Columbia (Public Safety and Solicitor General), 2012
BCSC 1585, the court held that the class action would not be the preferable
procedure because the common issues would be overwhelmed or subsumed by the
individual issues and therefore the goals of fairness (to both the plaintiffs and the
defendants), and efficiency (i.e. judicial economy) would not be achieved. Rather,
the effect of a predominance of individual questions of fact and law for each class
member over the broadly-framed common issues, would simply render the class
action merely a prelude to many individual trials: Thorburn, paras. 120 and 121.
[177] In all of the circumstances, I am satisfied that there are no other reasonable
means of resolving the claims that are more practical or efficient than a class
proceeding. Many, arguably most, potential class members would be unlikely to
pursue a Small Claims matter because many are not in British Columbia, the
amounts of the individual claims would be relatively small, and they would have
difficulty attracting individual lawyers because of the low dollar value of the claims.
[178] Further, class proceeding is the means by which the least difficulties of an
administrative nature will be encountered. It will be much more administratively
difficult for the combined resources of the courts, and the potential defendants, their
lawyers, and the plaintiffs if the matter is pursued as a number of Small Claims
proceedings.
[179] I agree with the Rep Plaintiffs that pursuing these claims through a class
proceeding will be more practical and efficient. It will involve less judicial resources,
will provide access to justice to potential plaintiffs, will promote behaviour
modification, and it will do all of those things with much more efficiency than will the
possibility of numerous Small Claims trials.
[180] Considering all of the foregoing, and all other relevant matters, I am satisfied
that a class proceeding would provide the most practical and efficient result and
determination of all of these matters. I am satisfied that a class proceeding is the
preferable procedure.
There is a Suitable Representative Plaintiff s. 4(1)(e)
[183] Section 4(1)(e)(i) sets out that the representative plaintiff must produce a
litigation plan that meets certain criteria. The defendants argue that the plan
advanced in this case is insufficient and unsuitable.
[184] The argument that the defendants make about the deficiencies of the Rep
Plaintiffs litigation plan is derived from a paragraph in the case of Bellaire v.
Independent Order of Foresters, [2004] O.J. No. 2242, (O.S.C.J.).
[185] The paragraph immediately following that list is also instructive:
54 I appreciate that any litigation plan will be a work in progress. It will

need to be adjusted as the action proceeds. It may also be that the defendant
and the court will need to have some input into variations to the proposed
plan. None of those realities, however, relieves the representative plaintiff
from his or her obligation to put before the court, on the certification motion,
an initial effort at a plan to address these and other matters so that the court
can be satisfied that, if the action is certified, some level of attention has been
given to how the action will progress thereafter.
[186] It is likely, and common, the litigation plan will require amendments as the
case proceeds and the nature of the individual issues are demonstrated by class
members.
[187] That will be the case here. I am satisfied that the litigation plan is sufficient
and not a bar to my finding that the Rep Plaintiffs advanced here satisfy the
requirements of s. 4(1)(e).
[188] I am also satisfied that the Rep Plaintiffs would fairly and adequately
represent the interests of the class, and do not have, on the common issues, an
interest that is in conflict with the interests of other class members.
CONCLUSIONS
[189] I am satisfied with respect to the following:
1. The Rep Plaintiffs have satisfied the requirements of s. 4 of the CPA.
2. A class proceeding will substantially advance this litigation, including the

question of common issues, having regard to the principles of judicial
economy, access to justice, and behaviour modification.
[190] Consequently, I make the following orders:
1. I certify this action as a class proceeding.
2. The class is defined as:

All persons who, on or after December 11, 2009 to the opt-out/opt-in
date set by the Court, made payments to Overseas Immigration
Services Inc., Overseas Career and Consulting Services Ltd., and/or
Trident Immigration Services Ltd. and who were thereafter provided
with employment contracts to work at Macs Convenience Stores in
British Columbia, Alberta, the Northwest Territories and

Saskatchewan under Canadas Temporary Foreign Worker program.
3. There will be a sub-class of persons resident in British Columbia and another

of persons not resident in British Columbia.
4. Bishnu Khadka and Prakash Basyal are appointed as Representative

Plaintiffs for the sub-class of persons resident in British Columbia.
5. Arthur Gortificaion Cajes and Edlyn Tesorero are appointed as

Representative Plaintiffs for the sub-class of persons not resident in British
Columbia.
6. The issues set out in Schedule A are certified as common issues.
Silverman J.
Schedule A
Proposed Common Issues
A. Breach of Contract
i. What are the relevant terms (express, implied or otherwise) of the Class
employment contracts with the defendant Macs Convenience Stores Inc.
(Macs) respecting:
a. wage rate;
b. hours of work;
c. length of the contract;
d. recruitment fees;
e. payment of two-way air transportation; and
f. reasonable and proper accommodation.
ii. Did Macs or its agents breach any of the foregoing contractual terms? If
so, how?
iii. Does the contract require the class members to mitigate their damages?
B. Agency
i. Were the defendants Overseas Immigration Services Inc. and Overseas

Career and Consulting Services Ltd. (collectively Overseas) acting as
agents of Macs in recruiting class members to work for Macs, including
by securing employment contracts and LMOs for class members to work
at stores operated by Macs and/or otherwise facilitating their entry into
Canada?
ii. If the answer to (B)(i) is yes, is Macs thereby liable for their agents
charging and receiving recruitment fees from class members?
C. Conspiracy
i. Did the defendants conspire to harm the class members?
ii. Did the defendants act in furtherance of the conspiracy?
iii. Did the conspiracy involve unlawful act?
iv. Did the defendants know or should they have known that the conspiracy
would injure the class members?
v. Did the class members suffer economic loss?
vi. What damages, if any, are payable by the defendants to the Class
members?
D. Breach of Fiduciary Duty
i. Did the defendants, or any of them, owe a fiduciary duty to the Class?
ii. If the answer to D(i) is yes, has there been a breach of that duty?
E. Unjust Enrichment
i. Was Macs unjustly enriched by not having to pay the Class pursuant to
the terms of the employment contracts?
ii. Were the defendants, or any of them, unjustly enriched by having the
Class pay the recruitment fees?
iii. Were the defendants, or any of them, unjustly enriched by not paying the
cost of two-way air transportation for the Class?
F. Waiver of Tort
i. What restitution, if any, is payable by the defendants, or any of them, to

the class members based on the doctrine of waiver of tort?
ii. Are the defendants, or any of them, liable to account to the class members
for the recruitment fees, if any, that they obtained from the class members
based on the doctrine of waiver of tort?
G. Remedy and Damages
i. If the answer to any of the common issues is yes, what remedies are
class members entitled to?
ii. If the answer to any of the common issues is yes, are the defendants
potentially liable on a class-wide basis?
iii. What is the appropriate method of procedure for distributing the

damages award to the Class?
iv. Is the Class entitled to an award of aggravated or punitive damages

based upon the defendants conduct and, if so, in what amount?
v. If the answer to G(iv) is yes, what is the appropriate method of

procedure for distributing any aggravated or punitive damages to the
Class?

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Basyal v. Macs Convenience Stores Inc.,

Macs Convenience Stores Inc., Overseas Immigration Services Inc.,

Before: The Honourable Mr. Justice Silverman

Reasons for Judgment

Counsel for the Plaintiffs: C. Gordon

Counsel for the Defendants, A. Borrell

Counsel for the Defendants, D. Lebans

Place and Date of Hearing: Vancouver, B.C.

1. Macs promised jobs and failed to provide them; and

[6] In addition to a disagreement on legal issues, the parties disagree with

Submission of Rep Plaintiffs

[8] The TFWP is jointly administered by various government departments. It

1. An employer must first provide a written employment offer to the prospective

3. Employers are permitted to use the services of third-party representatives.

1. For lower-skilled occupations, it advises that third-party representatives,

2. For higher-skilled occupations it notes that third-party representatives are not

[13] The appropriate documents were completed and submitted in the

Prakash Basyal $8,000

1. The term of employment;

[28] The involvement of Overseas and Trident are as follows:

1. They are related companies under the control of Kuldeep Bansal.

material times, OCCS was licensed as an employment agency through British

[33] In or around July 2012, Macs executed a prescribed written authorization

[35] As part of its recruiting services, OCCS introduced prospective TFW

[37] The employment contracts varied with respect to a number of terms,

[41] In the meantime, Macs labour needs were changing constantly.

[45] With respect to Recruitment Fees:

1. No binding employment agreement;

Submission of OIS, OCCS and Trident

1. Assisting Macs in obtaining LMOs from Service Canada, which authorized

[49] A number of Macs stores were operated by an individual known as a dealer.

completely independent of any events related to the hiring of the foreign

[56] Where Trident provided immigrant and settlement services to a foreign

[57] At no time was Trident, or its principal, involved in providing recruitment

(iii) does not have, on the common issues, an interest that

General The Rep Plaintiffs

1. The pleadings disclose a reasonable cause of action s. 4(1)(a);

2. There is an identifiable class s. 4(1)(b);

3. The claims of the class members raise common issues s. 4(1)(c) ;

4. A class proceeding would be the preferable proceeding s. 4(1)(d); and

5. There are appropriate Rep Plaintiffs s. 4(1)(e).

[61] The burden is on the Rep Plaintiffs to establish:

General The Defendants

The Pleadings Disclose a Cause of Action s. 4(1)(a)

Submission of Rep Plaintiffs

Breach of Contract Macs

1. In some cases, there is no evidence at all with respect to mandatory elements

[79] With respect to the assertion of agency:

1. No claim based on an allegation of agency between Macs and Trident

2. For an Agency relationship to exist in law, an agent must be in a position to

1. There is no proper pleading of an agreement between Macs and the other

1. The claim fails because there is no recognized special duty between

Submission of Overseas and Trident

2 There is no pleading that alleges any agency or relationship between Trident

There is an Identifiable Class s. 4(1)(b)

Submission of Rep Plaintiffs

[87] The burden on the Rep Plaintiffs is some basis in fact.

[92] The employment contracts to work referred to in the class definition is a