Tadena v. Dawat Restaurant Ltd. Date:, 2017 BCPC 205

Citation: Tadena v. Dawat Restaurant Ltd. Date: 20170616 2017 BCPC 205 File No: 1525071 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Small Claims BETWEEN: ANGELICA ISABEL CUANCO TADENA CLAIMANT AND: DAWAT RESTAURANT LTD. dba PALKI RESTAURANT DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Claimant: Susanna Quail Counsel for the Defendant: Daniel Draht

Place of Hearing: North Vancouver , B.C. Dates of Hearing: February 3, and March 9, 2017 Date of Judgment: June 16, 2017 [ 1 ] Angelica Tadena asks the court to award her damages resulting from an alleged breach of an agreement by the defendant to provide her employment under the Temporary Foreign Worker Program (TFWP). [ 2 ] Ms. Tadena testified. Mr. Bhupinder Mroke testified for the defendant company. He is the principal of the defendant company which operates the Palki Indian food restaurant where Ms. Tadena expected to work. [ 3 ] The documentary and oral evidence establishes that in late November of 2012 Mr.

Mroke obtained the necessary authorizations for a TFW. By letter of December 7, 2102, he offered the claimant employment for two years as a TFW. The offer was contingent only upon approval of Ms. Tadena by Citizenship and Immigration Canada (Immigration). She accepted his offer through an agency which was assisting her. That same agency had assisted Mr. Mroke with his application to obtain the subject “Labour Market Opinion” which approves the hiring of a TFW. Mr. Mroke had worked with the same agency in the past with respect to the hiring of other TFWs.

He has continued to work with them since December of 2013. [ 4 ] Nearly a year passed before Ms. Tadena arrived in Canada from Dubai. On November 18, 2013 Immigration officials contacted Mr. Mroke who confirmed he “had applied for her” under the TFWP. Ms. Tadena was provided with a work permit authorizing her to work only for the defendant and only at the Palki Restaurant. [ 5 ] On the advice of her agency, Ms Tadena presented herself at the restaurant at 9:00 a.m. on the morning of December 2, 2013 dressed in clothing which she had been told the employees were required to wear.

She was prepared to commence her duties. Mr. Mroke arrived at 10:00 a.m. and proceeded to interview her. He told her he would contact her in two days. Mr. Mroke did not call her back so Ms. Tadena called him and he told her to call her agency. Her agency then informed her that the defendant would not be employing her. No reason was ever given. Ms. Tadena did not find another employment placement until April 16, 2014. In the meantime, she suffered significant fear, uncertainty, and financial hardship. [ 6 ] The defendant argued that there was no offer and acceptance and therefore no contract.

However, in his testimony Mr. Mroke confirmed he offered Ms. Tadena employment and was aware she accepted his offer. He said he made a number of inquiries of the agency about when she was expected to arrive in Canada to begin her employment with the defendant. There is no evidence Mr. Mroke ever contacted the agency or the claimant to advise he could not provide her with the employment offered or would not employ her due to the delay. [ 7 ] It was also argued that the contract was not binding as there was no specified start date.

The evidence is clear that the start date for the claimant’s employment was not material to either party in the particular circumstances of an offer of employment under the TFWP. Mr. Mroke’s understanding was that it could take up to 8 months or longer for a worker to arrive and that regardless of any delay the defendant was required to employ them. [ 8 ] In closing the letter offering the claimant employment, Mr. Mroke wrote “Should you have any questions please contact the undersigned.” Ms.

Tadena filed a document from her agency which advised her not to contact the employer directly but rather to go through the agency. The defendant argued that as a result of the claimant failing to keep Mr. Mroke directly informed about when she could be expected to arrive in Canada, she abandoned the contract. I do not accept that Mr. Mroke believed this to be true given his advice to Immigration when she arrived in Canada. Mr. Mroke testified that the letter offering her employment was sent through the agency and that in his view it “did not matter who she responded to”.

I do not find her failure to communicate directly with Mr. Mroke amounted to abandonment of the contract in all the particular circumstances relating to the hiring of TFWs. [ 9 ] Mr. Mroke argued that he did not understand Ms. Tadena to be the TFW the defendant had applied for. I reject this argument based on the evidence of what he said to Immigration and on the evidence that when she contacted him after he did not call her back he told Ms. Tadena to call her agency. The agency then told her the defendant would not be hiring her. [ 10 ] The suggestion was made that Ms.

Tadena did not want to work for the defendant. Mr. Mroke said this was likely because she would be involved in making curried dishes. I reject Mr. Mroke’s evidence in this regard and accept the evidence of Ms. Tadena that she was ready and willing to commence work when she presented at the restaurant. [ 11 ] Ms. Tadena’s evidence was forthright, internally consistent, and well supported by documentation in most areas. Mr. Mroke’s evidence was internally inconsistent and inconsistent with the defendant company’s pleadings and the documentation.

It is of particular significance with respect to the defenses raised that Mr. Mroke agreed he told Immigration he was expecting the claimant when they called during their screening of Ms. Tadena for entry into Canada in late November of 2013. [ 12 ] I accept the evidence of Ms. Tadena where it conflicts with that of Mr. Mroke and generally. I find that after meeting with Ms. Tadena on December 2 nd , Mr. Mroke, on his own accord, determined the defendant would not employ her for reasons which remain unknown.

I find his evidence on the material events was fabricated after the fact in an attempt to justify this decision. [ 13 ] Turning to the issue of damages, I find that in all the circumstances, Ms. Tadena is entitled to the earnings she would have earned in her position with the defendant up to the time she commenced the employment she was able to secure after the breach. I accept Ms. Tadena’s evidence that she did everything she could to obtain a position as soon as possible. I find I am not able to accede to the argument that she is entitled to damages based on her reliance on the contract. Ms.

Tadena was clear that she wished to relocate to Canada. I find she would have taken the steps she did and paid the fees she did to obtain any suitable employment here. However, she is entitled to damages on an expectancy basis being her loss of income during the time she remained unemployed which total $9684.48.

She is also entitled to the extra fees she paid to her agency in the amount of $700.00. She is also entitled to her filing fees of $156.00,service fees of $80.00 and pre-judgment interest on the award of damages from January 1, 2014. Authorities considered: 1. Timberwolf Log Trading Ltd. v. Columbia National Investments Ltd., [2011] B.C.J. No. 1283 2. PreMD Inc. v. Ogilvy Renault LLP, Swabey Ogilvy Renault S.E.N.C. and Robert Carrier, 2013 ONCA 412 3. Alsip v. Top Rollshutters Inc. (c.o.b. Talius), [2015] B.C.J. No. 1427 4. Barrick Estate v. Clark, [1950] S.C.J. No. 9 5. Essar Steel Algoma Inc. v.

United Steelworkers of America, Local 2251, [2012] O.L.A.A. No. 412 6. Fraser v. Saskatchewan Government Insurance, [2013] S.J. No. 626 7. Harrington v. Dow Corning Corp., (BC SC), [1998] B.C.J. No. 831 8. Kirby v. Amalgamated Income Limited Partnership, [2009] B.C.J. No. 1555 9. Schiller v. Fisher, (SCC), [1981] 1 S.C.R. 593 10. Lyons v. Consumers Glass Co. Ltd., (BCSC) 11. Munoz v. Sierra systems Group Inc., 2016 BCCA 140 , [2016] B.C.J. No. 607 12. Strauss v. Albrico Services

(1982) Ltd., [2008] B.C.J. No. 835 13. Strauss v. Albrico Services

(1982) Ltd., [2007] B.C.J. No. 284 14. Service Employees International Union, Local 2, Brewery, General and Professional Workers’ Union v. Coburg Coffee House, 2015NSLB 247 15. 2190322 Ontario Ltd. v. Ajilon Consulting, a division of Ajilon Canada Inc., [2014] O.J. No. 5367 [14] I wish to address the issue of aggravated damages which may be appropriate based on the findings I have made with respect tothe nature of the conduct of the defendant. Ms. Tadena was put in a very vulnerable position by the callous treatment of her by Mr.Mroke on behalf of the defendant company. I infer Mr.

Mroke would have known that it would cause extreme emotional distress to aperson who was induced to travel half-way around the world to take up residence in a new country relying on a promise of employmentto find that for no apparent reason the promised employment is not available. I infer Mr. Mroke was well aware of the tenuous positionTFWs are in when they arrive from overseas in that they are able to work only for a particular employer at a particular location. Byrefusing to honour the employment offer made to Ms.

Tadena, the defendant left her adrift without resources in a country she hadrecently immigrated to and in a precarious situation with respect to her status in Canada. Mr. Mroke should have appreciated that Ms.Tadena would have expended significant sums to relocate to Canada from Dubai to continue to perform menial work at a minimum wageand that without employment she would have no means to relocate if she was unable to find another opportunity.

I also find that Ms.Tadena would have anticipated experiencing the emotional distress she in fact did suffer as a result of the breach of contract. [15] I grant leave to Ms. Tadena to apply to the court for an award of aggravated damages. Any such application may be made byrequisition and on 7 days’ notice to the defendant. ______________________________ The Honourable Judge J. Challenger Provincial Court of British Columbia