Executive Summary: Key Legal and Evidentiary Issues

• Mac's Convenience Stores Inc. conceded that it breached employment contracts with subclass members by failing to provide the jobs contracted for under the Temporary Foreign Worker Program.
• Breach of the duty of honesty in contractual performance was established against Mac's for knowingly creating false pretences about job availability without disclosing this to subclass members.
• Fees charged by Overseas Immigration Services Inc./Overseas Career and Consulting Services Ltd. and Trident Immigration Services Ltd. to class members were found to be prohibited fees for jobs under applicable employment standards legislation.
• Unjust enrichment was established against Overseas and Trident, as they collected unlawful fees without juristic reason, causing a corresponding deprivation to class members.
• Both Overseas and Trident owed and breached fiduciary duties to class members as Regulated Canadian Immigration Consultants, by collecting unlawful fees and failing to disclose the true nature of Mac's job commitments.
• Punitive damages were found to be warranted against Mac's and Overseas for their callous and egregious conduct, though the quantum cannot be assessed until individual compensatory and restitutionary damages are determined.

Facts of the case

This class action arose from the recruitment of foreign workers under Canada's Temporary Foreign Worker Program (TFWP) for employment at Mac's Convenience Stores Inc., a chain of convenience stores operating in British Columbia, Alberta, Saskatchewan, and the Northwest Territories. Beginning in mid-2012, Mac's retained Overseas Immigration Services Inc. and Overseas Career and Consulting Services Ltd. (collectively, "Overseas") to recruit workers from abroad — primarily from Dubai, UAE — paying Overseas $1,500 per supervisor and $500 per cashier or food counter attendant successfully hired. Overseas, whose principal was Kuldeep Bansal, a Regulated Canadian Immigration Consultant (RCIC), also charged the class members fees in two installments: an initial payment of approximately $1,500 to $2,000 to begin the process, and a second payment of approximately $5,500 to $6,000 after the worker received a visa but before travelling to Canada. Trident Immigration Services Ltd., whose principal was Minakshi Bala, also an RCIC, received some of those fee payments at Overseas' direction. The representative plaintiffs — Prakash Basyal, Bishnu Khadka, and Edlyn Tesorero — each paid these fees, entered into employment contracts with Mac's, obtained visas, and travelled to Canada, only to find that no jobs were available for them. Mr. Basyal, who came to Canada on April 18, 2014, was sent to work at a bottle depot in Lethbridge, was not paid, and was subsequently detained by the Canada Border Services Agency (CBSA) for working without the correct work permit. He later lived in a homeless shelter in Vancouver for three to four months before obtaining a new work permit in August or September 2014. Mr. Khadka arrived on April 13, 2014, was provided only approximately four days of work in Kitimat, and eventually also lived in a homeless shelter on Homer Street in Vancouver; he later received $2,145 in compensation from the Employment Standards Branch for his claim against Mac's. Ms. Tesorero arrived in December 2013, was never given the food service supervisor position in Calgary she had contracted for, resorted to cash work to survive, and left Canada in June 2014, returning to Dubai. The representative plaintiffs assert there are approximately 880 class members and approximately 125 subclass members; the defendants dispute those figures.

Contractual terms and clauses at issue

The employment contracts between Mac's and subclass members were standard form agreements. Each contract provided for a two-year term, a specified wage rate, and set hours of work — for example, Mr. Basyal's contract specified 37.5 hours per week at $11.40 per hour plus overtime, and included round-trip airfare from UAE to Canada. Paragraph 2 of the standard form contract contained a conditions clause: "Both parties agree that this contract is conditional upon THE EMPLOYEE obtaining a valid work permit pursuant to the Immigration Regulations, and his/her successful entry to Canada." The contracts also provided for one week's written notice of termination after three consecutive months of service, though Mac's conceded this minimum notice period was inconsistent with applicable employment standards legislation, and that subclass members were entitled to recover damages in excess of it. The court found no term in the employment contracts relating to recruitment fees. The issue of two-way transportation costs had been resolved by consent order dated October 29, 2021. In connection with the TFWP, Mac's made attestations in its Labour Market Opinion (LMO) applications to Service Canada, including that it had "a reasonable need to fill a vacant or new position" and that it could "demonstrate that my business is able to fulfill the terms and conditions related to the employment of the foreign worker(s) … for the duration of employment indicated in this application."

Reasoning and analysis

On the breach of contract claims, Mac's conceded it had failed to provide employment or had provided employment different from what was stipulated, and the court accepted this concession. On the duty of honesty in contractual performance, the court applied the principles from Bhasin v. Hrynew, 2014 SCC 71 and C.M. Callow Inc. v. Zollinger, 2020 SCC 45, which prohibit lying or knowingly misleading a contracting partner about matters directly linked to contract performance, including through omissions, half-truths, or inaction amounting to active dishonesty. The court rejected Mac's argument that the conditions in paragraph 2 of the employment contracts were "true" conditions precedent that rendered the contracts non-binding until fulfilled, finding instead that they were "subjective and objective" conditions precedent under the framework in Peier v. Cressey Whistler Townhomes Limited Partnership, 2012 BCCA 28 — binding contracts whose performance obligations were suspended, not agreements void until conditions were met. The court found that Mac's used blanket LMOs to offer jobs it did not actually anticipate needing to fill, contracting with class members for hypothetical positions. Mac's own senior recruitment manager, Geoff Higuchi, acknowledged in contemporaneous email to Overseas that subclass members were coming to Canada "under false pretences," and the court found his evidence generally unreliable and his veracity wanting, noting he was caught in contradictions and had directed others to provide false explanations to government authorities. The court held that Overseas could not discharge Mac's duty of honesty, as Overseas was not Mac's agent for purposes of performance — a finding confirmed by the British Columbia Court of Appeal in Mac's Convenience Stores Inc. v. Basyal, 2025 BCCA 284. The dishonesty was found to be intentional and sustained throughout the period each subclass member was taking steps to fulfil the contract conditions and travel to Canada.

On the fee issue, the court applied the analysis from Prince George Nannies and Caregivers Ltd. v. British Columbia (Employment Standards Tribunal), 2010 BCSC 883, finding that the bundled fee structure used by Overseas was in substance a fee for jobs, prohibited under employment standards legislation in British Columbia, the Northwest Territories, Saskatchewan, and Alberta. The court found that class members could not opt out of paying for immigration or settlement services they did not need, that Overseas' refund practices were tied to whether a job was found rather than whether immigration services were rendered, and that the fees paid to Trident at Overseas' direction were equally unlawful fees for jobs. Having found no juristic reason for the fees, the court established unjust enrichment against both Overseas and Trident. On fiduciary duty, the court held that Overseas and Trident, through the RCICs they employed, owed ad hoc fiduciary duties to class members based on the RCICs' express undertaking of loyalty through their professional codes of conduct, and a power and knowledge imbalance that left class members — low-wage workers seeking Canadian employment — vulnerable to those who controlled access to the TFWP process. Both Overseas and Trident were found to have breached those duties by collecting unlawful fees and, in Overseas' case, by participating in and perpetuating the dishonest communications regarding job availability. On punitive damages, the court found that Mac's and Overseas' conduct — knowingly offering non-existent jobs to financially vulnerable foreign workers, allowing them to quit jobs abroad and travel to Canada with false expectations, then blaming them for their predicament — was callous, egregious, and high-handed, meeting the threshold articulated in Whiten v. Pilot Insurance Company, 2002 SCC 18. Trident, however, was found to have received unlawful fees but was not demonstrated to have engaged in conduct independently warranting punitive damages, and that claim against Trident was dismissed. Aggravated damages were found unsuitable for class-wide determination, as the mental distress experienced by each class and subclass member required individual assessment.

Ruling and overall outcome

The plaintiffs were the successful party on all substantive common issues. The court found that Mac's breached its employment contracts and its duty of honesty in contractual performance with subclass members; that Overseas and Trident were unjustly enriched by unlawful fees for jobs; that both owed and breached fiduciary duties to class members; and that Mac's and Overseas' conduct warrants punitive damages. Mac's is liable to the subclass on a subclass-wide basis, and Overseas and Trident are liable to the class on a class-wide basis. However, no specific monetary amount was ordered at this stage. Remedies for breach of contract, breach of the duty of honesty in contractual performance, and restitutionary damages for unjust enrichment and breach of fiduciary duty are all to be determined through individual assessments under sections 27 and 28 of the Class Proceedings Act, R.S.B.C. 1996, c. 50. The quantum of punitive damages — to be assessed against Mac's on a subclass-wide basis and against Overseas on a class-wide basis — cannot be determined until individual compensatory and restitutionary damages have first been assessed. The claim against Trident for punitive damages was dismissed. In summary, while liability has been established across all major common issues in favour of the plaintiffs, the total monetary award has not yet been specified and remains to be determined at individual issues proceedings.