The B.C. Supreme Court has ruled that Mac’s Convenience and the immigration firm it hired were intentionally dishonest in offering jobs to hundreds of foreign workers in Dubai while aware they likely couldn’t provide them.
About 880 workers brought forward a class-action lawsuit against Mac’s Convenience Store and Overseas Immigration Services, with a subclass of 125 workers who entered into employment contracts and came to Canada to find that they didn’t have the jobs they signed a contract for.
On May 28, Justice Sharon Matthews found that Mac’s and Overseas are warranted to award punitive damages to the workers, which will be revisited at a later date.
One of the workers is Prakash Basyal, born and raised in Nepal, who came to Canada after signing a two-year contract to work full-time as a cashier at a Mac’s in Edmonton.
However, once he arrived in Vancouver and obtained his work permit from the Canada Border Services Agency (CBSA), there was no job for him at Mac’s. He said Overseas gave him a bus ticket to Calgary, where “someone named Pradeep picked him up” and took him to Lethbridge, where he worked six days a week at a bottle depot with virtually no pay.
While there, CBSA personnel arrived and asked him for his work permit, which he did not have for the bottle depot.
“He was handcuffed and taken away by the CBSA. He testified that he was distraught, felt like a criminal, but he had not done anything wrong,” reads the court case.
Basyal was taken to a detention centre for a day, then to a homeless shelter in Calgary, where he stayed for a month. He took a bus back to Vancouver, where he stayed in a homeless shelter on Homer Street for three to four months.
Eventually, with the help of CBSA and an NGO, Basyal got a new work permit, and he became a Canadian citizen in 2023.
What happened?
In 2012, Mac’s was struggling to recruit dealers, employees for the corporate stores, and employees for food services operations, so it turned to Canada’s Temporary Foreign Worker Program (TFWP), which Service Canada runs.
To do so, Mac’s had to get a labour market opinion (LMO) from Service Canada, where the employer is required to show that it had marketed the position and was unable to fill it with citizens or permanent residents.
If an employer has a positive LMO — indicating that they do, in fact, need to hire foreign workers — and hires a foreign employee, that employee then uses that LMO to apply for a visa through the Canadian embassy, before coming to Canada.
Once they have the visa, they are able to travel to Canada and apply for a worker permit upon entering.
At first, Mac’s had Overseas apply for individual LMOs, but found that it took too much time. It then moved to blanket LMOs for positions in both dealer stores (stores operated by dealers who employ store workers) and corporate stores — even though Mac’s doesn’t manage hiring in the dealer stores.
“There is no evidence that supports the supposition that Mac’s thought it was even remotely likely that Mac’s would be in a position to need to hire workers for all dealer stores in any given region. Yet that was the basis for the LMO applications, because Mac’s attested that Mac’s had ‘a reasonable need to fill a vacant or new position,'” reads the case.
In their lawsuit, the workers asserted Mac’s entered into the employment contracts knowing “it was really just a matter of chance” of whether there would be a job available when they received a visa and could travel to Canada to work.
Justice Matthews agreed, saying that “I conclude that Mac’s created the false pretences and by creating them and failing to correct them, it engaged in at least an obfuscation of the truth if not an outright lie.”
She also found that Mac’s used the TFWP to “create a pool of foreign workers whom it could call on to come to Canada and fill positions as they became available.”
Further, under the employment standards legislation in B.C., the Northwest Territories, Saskatchewan, Manitoba, and Alberta, it is illegal to charge workers fees to get jobs or to get information about jobs.
While it is legal to charge fees for immigration services to people looking to come to Canada to work, Justice Matthews found that Overseas and Trident Immigration Services Ltd. charged and collected “unlawful fees for jobs” from the workers.
Further, Overseas was also aware and participated in the dishonesty made in the job offers and employment contracts, as it didn’t tell workers that Mac’s “would not or could not, except by happenstance, provide the jobs that the class members were paying Overseas for.”
While Mac’s admitted that it made mistakes (like being ignorant of how the TFWP worked), it said that it wasn’t malicious and didn’t intend to cause harm.
To this, the judge said, “The scheme was too obviously abusive to dismiss as simply careless.”