‘The judge fell into error by applying the colloquial concept of agency, rather than the test for agency at law’
The Court of Appeal of British Columbia (B.C.) has overturned, by a vote of 2-1, key findings in a class action involving Mac’s Convenience Stores and a group of temporary foreign workers.
The workers alleged that an immigration consultant retained by Mac’s to assist in recruiting workers breached its fiduciary duty to them by charging prohibited fees for jobs. Specifically, Overseas Immigration Services charged workers a fee of $2,000 to attend a recruitment fair or to begin the recruitment process, according to court documents. The workers are from many countries of origin, but all were living and working in Dubai when they attended job fairs.
Overseas charged a further $5,500 to $6,000 when the foreign worker obtained a visa to come to Canada under the Temporary Foreign Worker Program (TFWP).
Mac’s retained Overseas in 2012 to assist with filling positions at its convenience stores in Western Canada, agreeing to pay the firm $500 for every temporary foreign worker hired for a cashier or food counter attendant position and $1,500 for a supervisor.
In a summary trial held in April, the judge found that Overseas was acting as Mac’s agent in recruiting the workers and that, as a non-fiduciary principal, Mac’s could be “vicariously liable for any breach of fiduciary duty committed by Overseas”.
Justice Lauri Ann Fenlon and Justice Lisa Warren of the Court of...
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