Ortiz v. Shokar, 2018 BCPC 305

Citation: Ortiz v. Shokar 2018 BCPC 305 Date: 20180502 File No: 1657050 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA CIVIL BETWEEN: JOY ORTIZ CLAIMANT AND: SANDY SHOKAR and SANDY SHOKAR coba DIAMOND DEALS DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE HOWARD Counsel for the Claimant: Susanna Quail Counsel for the Defendant: Erin Brandt Place of Hearing: Vancouver , B.C. Date of Hearing: November 14 and 15, 2017

Date of Judgment: May 2, 2018 [ 1 ] Joy Ortiz is suing Sandy Shokar for damages for breach of a Live-in Caregiver employment contract entered into under the authority of the federal government’s Temporary Foreign Worker Program. REGULATORY OVERVIEW [ 2 ] The Live-in Caregiver Program is a stream of Canada's Temporary Foreign Worker Program. This Program enabled Canadians to hire foreigners to travel to Canada and provide at-home caregiving to adults with disabilities, children, and seniors while living in their employers' homes.

The program is no longer in place but it was in place throughout the relevant time period. [ 3 ] Under the Live-in Caregiver Program, employers were required to obtain a Labour Market Impact Assessment ("LMIA") from Service Canada before they could hire a temporary foreign worker. In the LMIA process, Service Canada assessed whether the employer was justified in hiring a foreigner to fill the position in question.

The employer had to satisfy Service Canada that the employer had made reasonable attempts to hire a Canadian and that no Canadian worker was available or willing to fill the position. [ 4 ] Once an employer received a positive LMIA from Service Canada, the intended employee could use the LMIA, together with a signed employment contract, to apply for a visa to travel to Canada to work and a work permit that legally authorized the employee to work in the position described in the LMIA.

Workers in the Live-in Caregiver Program received ‘closed work permits’, which meant that they were authorized to work only for the employer named on the work permit and only in the position identified on the work permit.

If a worker in the Live-in Caregiver Program wanted to change employers, the new employer had to obtain an LMIA to hire the worker and the worker had to obtain a new ‘closed work permit’ authorizing them to work in the new position. [ 5 ] The process of obtaining an LMIA and accompanying work permit took in the range of 4-6 months. [ 6 ] Temporary foreign workers who lose their status can apply to restore their status.

Citizenship and Immigration Canada's web page setting out its policy, procedures, and guidelines regarding restoration of temporary resident status is attached as Document 11 to the Agreed Statement of Facts. The provisions relevant to the present case are as follows: Restoration 182

(1) On application made by a visitor, worker or student within 90 days after losing temporary resident status as a result of failing to comply with a condition imposed under paragraph 185(a), any of subparagraphs 185(b)(

i) to (iii) or paragraph 185(c), an officer shall restore that status if, following an examination, it is established that the visitor, worker or student meets the initial requirements for their stay, has not failed to comply with any other conditions imposed and is not the subject of a declaration made under subsection 22.1(1) of the Act. Specific conditions 185 An officer may impose, vary or cancel the following specific conditions on a temporary resident: (

a) the period authorized for their stay; (

b) the work that they are permitted to engage in, or are prohibited from engaging in, in Canada, including (

i) the type of work, (ii) the employer, (iii) the location of the work, (iv) the times and periods of the work, and . . . [ 7 ] The practical effect of the above provisions is as follows: A temporary foreign worker who is here on a valid work permit attached to a specific employer loses her temporary resident status if she has ceases to work for that employer and takes up employment with a new employer who is not authorized to hire a foreign worker. This action would amount to a failure to comply with sections 185(b)(ii) and (iii).

However, the immigration officer dealing with the case must restore the status of the temporary worker so long as no other conditions have been breached and there is no outstanding ss. 22.1(1) declaration in effect. Again, restoration of status is mandatory . The temporary foreign worker is still tied to the old employer named in the original work permit (which remains valid) but she has the opportunity to work for the new (or alternate) employer, assuming that the new employer obtains a valid LMIA. This scenario is directly applicable to the facts before me. FACTUAL OVERVIEW [ 8 ] In 2014, Ms.

Ortiz entered Canada with a valid Temporary Foreign Worker Permit under the Live-in Caregiver Program. Upon her arrival, her first employer told her they wouldn’t need her after all because they were getting divorced. She worked for two subsequent employers under conditions that were not to her liking (12 hour days for 8 hours pay, etc.). She looked for a new employer to whom she could transfer her work permit. [ 9 ] Ms. Ortiz still had a valid Temporary Foreign Worker Permit under the Live-in Caregiver Program that was issued on December 22, 2014.

This permit was not set to expire until December 2016; however, it only entitled her to work in Canada for the

employer named in the permit, that being her last employer (Ms. Wendel). In order for Ms. Ortiz to lawfully work for Ms. Shokar, Ms. Shokar was required to obtain her own LMIA that authorized the named employee (Ms. Ortiz) to work for her. Ms. Ortiz would then receive a revised work permit that entitled her to work specifically for Ms. Shokar. [ 10 ] In May 2015, with the assistance of a ‘nanny agency’, Ms. Ortiz met with Ms. Shokar. On May 16, 2015, Ms. Shokar interviewed Ms. Ortiz for a live-in caregiver position at the former’s home in West Vancouver, BC. Following the interview, Ms. Shokar offered Ms.

Ortiz employment, pursuant to a written employment agreement provided to Ms. Shokar by the nanny agency. The contract was drafted by the nanny agency. Ms. Shokar signed the contract and gave it to Ms. Ortiz. This contract, as executed by Ms. Shokar (but not Ms. Ortiz), is attached as Document 1 to the Agreed Statement of Facts. [ 11 ] I am satisfied on the evidence before me that both Ms. Ortiz and Ms. Shokar knew that it was illegal for Ms. Shokar to hire Ms. Ortiz and it was illegal for Ms. Ortiz to work for Ms. Shokar in the absenc e of an LMIA issued to Ms. Shokar and a revised work permit for Ms. Ortiz.

Nonetheless, the parties agreed that Ms. Ortiz would start work for Ms. Shokar while they waited for the immigration paperwork to come through. Ms. Ortiz started working for Ms. Shokar on June 2, 2015. She worked in the Shokar home cleaning, cooking and caring for Ms. Shokar’s young child. On occasion, she also performed cleaning duties at another house owned by Ms. Shokar. She also performed cleaning duties and did some computer work at Ms. Shokar’s Diamond Deals business office. [ 12 ] In furtherance of the mutual intention of the parties, in June/July of 2015, Ms.

Shokar submitted an LMIA application that was dated June 9, 2015. Ms. Ortiz was named as the prospective Live-In Caregiver in the application. Both parties signed a new contract using a standard form provided by the Department of Employment and Social Development Canada. See

Schedule 1 attached to Document 2 of the Agreed Statement of Facts. I will henceforth refer to this contract as the “Service Canada Contract”. The claimant’s action is based upon this contract for prospective employment. [ 13 ] The LMIA application and the attached Service Canada Contract were submitted together to Service Canada for approval. On July 27, 2015, Ms. Shokar was notified that her application was “incomplete”. See Document 3 of the Agreed Statement of Facts: “TWFP Incomplete Application Notice – Sandy Shokar – July 8, 2015”. [ 14 ] On August 20, 2015, Ms.

Shokar signed a revised LMIA application, again naming Ms. Ortiz as the prospective employee. The application was resubmitted on or about August 25, 2015. [ 15 ] In the meantime, Ms. Ortiz continued to work illegally for Ms. Shokar for some 3.5 months. The parties agree that they had a good working relationship. Ms. Ortiz enjoyed the work. She liked Ms. Shokar and she liked Ms. Shokar’s young son, for whom she cared. Ms. Shokar treated her fairly and Ms. Ortiz felt she had finally found a good, stable job. As well, Ms. Shokar was quite complementary of Ms.

Ortiz as an employee and had no complaints about her work or conduct. [ 16 ] Then, on Saturday, September 12, 2015, Ms. Ortiz was arrested by CBSA officers on the grounds that she had been working in Canada in breach of her work permit. She was detained at the British Columbia Immigration Holding Centre and released the next day. Although she still had a valid work permit, her temporary resident status was revoked, so she was no longer able to work in Canada as a temporary foreign worker. [ 17 ] Ms. Shokar immediately consulted a lawyer, Massood Joomratty. She offered to pay this lawyer to also give Ms.

Ortiz advice on her immigration status. On Monday, September 14, 2015, the lawyer emailed Ms. Ortiz to let her know that Ms. Shokar had informed him of what had happened. He advised Ms. Ortiz to make sure she made all of her appointments with CBSA and that the next step was likely an admissibility hearing to determine whether she had been working “without authorization”. He suggested she contact him to set up an appointment. See Document 7 to the Agreed Statement of Facts. [ 18 ] On Tuesday, September 15, 2015, three days after the arrest, Ms. Shokar removed Ms.

Ortiz’s name from her LMIA application and inserted “no name” for the identity of the temporary foreign worker whom she proposed to hire. (See the fax from Ms. Shokar to Service Canada, Document 6 to the Agreed Statement Facts.) Under the terms of the Live-in Caregiver Program a ‘no name’ application for an LMIA was permissible. An employee name could be provided after the LMIA was approved. [ 19 ] I am satisfied that Ms. Shokar did not immediately tell Ms. Ortiz that the latter’s name had been removed from her LMIA application. [ 20 ] On September 20, 2015, Ms. Shokar emailed the lawyer, Mr.

Joomratty, to advise him that Ms. Ortiz had chosen “to go with a lawyer who specifically deals with nanny cases”. She sent a copy of the email to Ms. Ortiz’s email address. See Document 7 to the Agreed Statement of Facts. [ 21 ] Ms. Ortiz testified that she did have a telephone conversation with the lawyer engaged by Ms. Shokar. Whatever words he may have used, I accept that Ms. Ortiz understood his message to be that she had “no chance”; “nothing could be done” and she “would be deported for sure”. Hence, Ms.

Ortiz sought legal advice elsewhere from the West Coast Domestic Workers’ Association. [ 22 ] On September 23, 2015, Theressa Etmanski of the above Domestic Workers’ Association applied to Citizenship and Immigration Canada on behalf of Ms. Ortiz for restoration of her temporary resident status and for a new work permit naming Ms. Shokar as her employer. The Service Canada Employer/Employee Contract signed by both parties in June in 2015 was attached to the restoration application, along with a copy of Ms. Shokar’s LMIA application.

The letter attached to the formal application (See Document 17) contains the following passage at p. 5: Concurrent Processing As mentioned above, Ms. Ortiz’s prospective employer, Ms. Shokar, applied for a LMIA from ESDC in August 2015 (a copy of that application is enclosed for your reference). They expect a positive result on that application shortly. We anticipate that the approval code for the LMIA will be in the FOSS notes by the time you assess this application.

As such, we would sincerely appreciate if you would consult the Foss notes to see if the LMIA has been issued by the time this application comes up for assessment. Alternatively, we

ask that you hold Ms. Ortiz’s application in abeyance until such date as she can provide you with confirmation of the positive LMIA. . . . [23] On November 3, 2015, Ms. Shokar’s LMIA application was approved. See Document 9 to the Agreed Statement of Facts. Ms.Shokar did not hire a live-in caregiver until April 2016. In the intervening months, her child was cared for by family members. [24] Ms. Shokar never advised Ms. Ortiz that her LMIA application had been approved. [25] Natalie Drolet, legal counsel at the West Coast Domestic Workers’ Association testified that she was notified by Ms.

Ortiz onDecember 8, 2015 that Ms. Shokar was no longer prepared to hire her. On February 12, 2016, Ms. Drolet wrote to Citizenship andImmigration Canada on behalf of Ms. Ortiz asking that the latter’s application for restoration of status be revised as a result of this newinformation. See Document 19, p. 1: We wish to inform you that Ms. Sandy Shokar recently informed Ms. Ortiz that her services are no longer required. Given that Ms. Ortizno longer has an offer of employment, we write to request that CIC continue processing Ms. Ortiz’s application for restoration andconvert Ms.

Ortiz’s application for a work permit for employment with Ms. Sandy Shokar to a bridge extension work permit. [26] On April 12, 2016, Ms. Shokar sent a brief email to Ms. Ortiz saying, “I lost your number and was thinking of you.” SeeDocument 10 to the Agreed Statement of Facts. [27] Pursuant to a Referral Notice dated April 14, 2016, CBSA referred Ms. Ortiz, to an admissibility hearing to determine whethershe would be ordered to leave Canada for performing unauthorized work. The hearing was set for July 2016. See Document 12 to theAgreed Statement of Facts. [28] On June 1, 2016, Ms. Ortiz married Mr.

Terry Whin-Yates. [29] On July 7, 2016, Mr. Whin-Yates applied to sponsor Ms. Ortiz and her three daughters, who live with her extended family inthe Philippines, as permanent residents of Canada. [30] Ms. Ortiz's admissibility hearing was postponed until September 13, 2016. At the September 2016 hearing, the decision wasmade that Ms. Ortiz was inadmissible and an exclusion order was issued. [31] Ms. Ortiz applied to have the removal order deferred. CBSA did not issue a decision on this application. [32] In October 2016, Ms. Ortiz initiated this lawsuit. [33] Very soon after this, Mr.

Whin-Yates was determined to be an eligible sponsor and Ms. Ortiz was issued an ‘open work permit’pending determination of her application for permanent residency. The ‘open work permit’ is dated November 28, 2016. It allows Ms.Ortiz to work for any employer, subject to a few exceptions relating to the sex trade, strip clubs etc. Ms. Ortiz received her work permitin the mail in early December 2016. The ‘open work permit’ is attached as Document 13 to the Agreed Statement of Facts [34] In January 2017, Ms. Ortiz found employment and began working part-time. DID MS. ORTIZ QUIT OR WAS SHE FIRED BY MS.

SHOKAR? [35] In addition to confirming the evidence contained in the Agreed Statement of Facts, the parties testified in more detail aboutevents that followed the September 12, 2015 arrest of Ms. Ortiz. In particular, they provided their respective (and conflicting)recollections as to how and when their relationship collapsed.

In addressing the conflicts in the testimony, I am mindful of the principlesset out in Bradshaw v Stenner, 2010 BCSC 1398, aff'd 2012 BCCA 296, wherein Dillon J stated at para. 186 186 Credibility involves an assessment of the trustworthiness of a witness' testimony based upon the veracity or sincerity of a witnessand the accuracy of the evidence that the witness provides (Raymond v. Bosanquet (Township) (1919), (SCC), 59 S.C.R.452, 50 D.L.R. 560 (S.C.C.)).

The art of assessment involves examination of various factors such as the ability and opportunity toobserve events, the firmness of his memory, the ability to resist the influence of interest to modify his recollection, whether the witness'evidence harmonizes with independent evidence that has been accepted, whether the witness changes his testimony during direct andcross-examination, whether the witness' testimony seems unreasonable, impossible, or unlikely, whether a witness has a motive to lie,and the demeanour of a witness generally (Wallace v. Davis, [1926] 31 O.W.N. 202 (Ont.H.C.); Farnya v.

Chorny, (BCCA), [1952] 2 D.L.R. 354 (B.C.C.A.) [Farnya]; R. v. S. (R.D.), (SCC), [1997] 3 S.C.R. 484 at para.128 (S.C.C.)). Ultimately, the validity of the evidence depends on whether the evidence is consistent with the probabilities affecting the case as awhole and shown to be in existence at the time (Farnya at para. 356). [36] See also the test set out at para. 11 of Faryna v Chorny, (BC CA), [1951] BCJ No. 152 (BCCA): Is theevidence of the witness (whom the trial judge believes) “in accordance with the preponderance of probabilities in the case”? [37] I will begin with some general observations.

With respect to Ms. Ortiz, she was a timid witness. She was obviously verynervous and sometimes hard to understand. She was able to speak and understand English although it was apparent that her Englishcomprehension and communication skills were clearly less than perfect. Although her recollection regarding the timing and the contentof certain conversations was at times vague, I could find no significant internal conflicts in her testimony. [38] The testimony from Ms. Shokar was, in my view, far more problematic. I accept that this was her first appearance in acourtroom and that she too was nervous.

Still, she had the advantage of being at least comfortable with the English language. Myoverall impression of Ms. Shokar was that she had a tendency to be evasive. There were occasions when I had to remind her to focus onthe question being asked and to answer that question. She also had a tendency to give multiple answers to the same question, and theanswers were not always consistent.

[ 39 ] The parties agree that they had a number of conversations in the weeks following the September 12, 2015 arrest of Ms. Ortiz. According to Ms. Ortiz, during the early conversations, Ms. Shokar never told her that she had removed Ms. Ortiz’s name from the LMIA. She did not learn of this fact until the parties had their very last conversation in late October or early November 2015. It was during this last conversation that Ms. Shokar also told her, “This isn’t going to work.” It was at this point that Ms. Ortiz realized that Ms. Shokar no longer wanted to hire her. In contrast, Ms.

Shokar’s testimony appears to follow two different paths: one, Ms. Ortiz quit (telling her that she did not want to work for her any more) and two, that she always wanted Ms. Ortiz to work for her, even after removing her name from the LMIA, but could not reach her to tell her the good news about the November 3, 2012 approval for the LMIA. [ 40 ] With respect to the testimony of Ms. Shokar, the first question that arises is: Why did Ms. Shokar remove Ms. Ortiz’s name from the LMIA just 3 days after the arrest of Ms. Ortiz? Ms.

Shokar explained that she had received some advice from the nanny agency and legal advice to keep the name of the prospective employee ‘open’ on the LMIA; the Immigration office might reject her LMIA application altogether if she used Ms. Ortiz’s name because Ms. Ortiz “was having issues with Immigration”. She concluded, “It was safer to keep it open.” She also understood that if Ms. Ortiz was able to clear up her immigration problems, then she could put Ms. Ortiz’s name back onto the LMIA application. If the immigration problems were not resolved for Ms.

Ortiz, then she could put someone else’s name on the application when it was approved. [ 41 ] The second question is: Why did she not tell Ms. Ortiz that her name had been removed from the LMIA at the time that this occurred in mid-September, 2015? Why did she wait until late October/early November? At one point in her testimony, she suggested that she did not mention this fact to Ms. Ortiz because Ms. Ortiz had told her after the arrest that she did not want to work for her anymore. If this was true, then this would have been reason enough for Ms. Shokar to remove the Ortiz name from the LMIA.

In this context, Ms. Shokar’s assertions that she removed Ms. Ortiz from her LMIA application to improve her chances of obtaining approval for her application would appear to be a superfluous explanation. [ 42 ] The third question is: Why did Ms. Shokar not contact Ms. Ortiz in and about November 3, 2015 to advise her that the LMIA had been approved and that they could start to work on getting a work permit for Ms. Ortiz? This is an important question given Ms. Shokar’s persistent testimony regarding her on-going wish to hire Ms. Ortiz as her nanny. Ms. Shokar’s explanation was that she had no way to contact Ms.

Ortiz. Ms. Shokar’s testimony on this issue was utterly unpersuasive. She stated: “I did not have her number. My phone contacts were deleted so I did not know her number.” It seems that she took no steps to determine how to recover the contacts. More importantly, it is apparent that she most certainly did have Ms. Ortiz’s email address. She provided that email address to the lawyer, Mr. Joomratty on September 14, 2015. On October 13, 2015, Ms. Shokar sent an email to the school that Ms. Ortiz’s three daughters attended, inquiring about their tuition and asking for the school website.

I gather that the intent was that she was offering to pay their tuition fees. Neither the school nor Ms. Ortiz responded. See Document 8 to the Agreed Statement of Facts. What is significant here is that Ms. Shokar sent a copy of this October 13, 2015 to Ms. Ortiz’s email address. [ 43 ] As for Ms. Ortiz’s phone number, Ms. Shokar provided that phone number to the lawyer, Mr. Joomratty. The subject line in the lawyer’s last email to Ms. Shokar (September 21, 2015) confirming that Ms. Ortiz was going to another lawyer reads as follows: “Subject: Re Beulah Joy ORTIZ 778-549-6355”. I also note that Ms.

Ortiz’s phone number 778-549-6355 is clearly set out on page 1 of the Service Canada Contract that is attached as

Schedule 1 to Ms. Shokar’s original LMIA application (Document 2 of the Agreed Statement of Facts) [ 44 ] Clearly, Ms. Shokar was in a position to contact Ms. Ortiz with no difficulty in the period between September 12 and October 13, 2015. Her assertion that somehow, in the two weeks between October 13, 2015 and November 3rd 2015, she lost all the contacts on her phone such that she was unable to communicate with Ms. Ortiz was not credible and I reject that assertion. Even if those contacts were lost, if she was in fact keen to hire Ms. Ortiz using her newly approved LMIA, Ms.

Shokar could easily have contacted Mr. Joomratty to get Ms. Ortiz’s email address and phone number. Indeed, she could easily have searched through the emails on her own phone from just two weeks earlier to get that information. Again Ms. Shokar suggested that this would have been difficult because Ms. Ortiz did not use her own name in her email address. That is not quite true. The address begins with her name: ‘joy....@’. Finally, Ms. Shokar need only have looked at the Service Canada Contract that was in her possession to locate Ms.

Ortiz’s phone number. [ 45 ] I note that when some of these options were put to Ms. Shokar during her testimony, her reply was, “I did not think of it. I was busy. I was waiting for her to contact me at some point.” The last suggestion makes no sense. It was Ms. Shokar who was allegedly keen to employ Ms. Ortiz; she was the only one in possession of the good news that the LMIA was approved. [ 46 ] I will deal briefly with the evidence relating to a Facebook message posted by Ms. Shokar. I begin with the entry posted by Mr Whin-Yates (Ms.

Ortiz’s new husband) on his website, wherein he referred to “a very interesting Court Case” involving a lawsuit by a Filipino Nanny against Ms. Shokar and her company Diamond Merchant for wrongful dismissal. This entry was posted in October 2016, following the filing of the Notice of Claim in this case. [ 47 ] The

article upset Ms. Shokar. She stated, “I was really hurt when I saw the post . . . the attack on the reputation of my business.” On October 30, 2016, there was a response posted both on Ms. Shokar’s Facebook page and on the page for her new business, now called Phera Diamonds. The response was (in part): This work contract was cancelled as the nanny (Beulah Joy Ortiz) would bring her BOYFRIEND to our home on numerous occasions. She was repeatedly asked not too [sic] as we have an impressionable toddler in our home.

We are happy to take this to court and we will not succumb to blackmail. [ 48 ] Clearly , the above message amounted to an assertion that Ms. Ortiz had been fired for cause. At the trial, it was not alleged that Ms. Ortiz was fired for cause. To the contrary, Ms. Shokar asserted that it was Ms. Ortiz who had quit. She also confirmed that there was no ‘boyfriend’ who visited her home in defiance of repeated requests that this not occur. [ 49 ] Ms. Shokar explained that she did not post the above comment. It was posted by her husband (now ex-husband and partner in their diamond business).

He had seen her computer open to the web page of Mr. Whin- Yates. He had sat down and posted the above

reply alleging that Ms. Ortiz had been fired for cause. He apparently just “invented” the story contained on the Facebook page. [ 50 ] Although I have received testimony from Mr. Whin-Yates wherein he confirmed that he was the person who posted the original entry regarding the “interesting Court Case”, I have not heard from Ms. Shokar’s husband regarding the post that he supposedly put onto Ms. Shokar’s Facebook page. What concerns me is that fact that, even though she may not have crafted the message, Ms. Shokar knew that the message on her Facebook page was there and that it was false.

She effectively adopted the message by letting it sit on her Facebook page and by never posting a message that let the public know that the claim that Ms. Ortiz had been fired for cause was false. This lack of candour on Ms. Shokar’s

part is of concern to me. [ 51 ] After reviewing the testimony of the parties in context with all of the evidence before me, I have concluded that the testimony of Ms. Shokar was both internally inconsistent at times and, on some issues, inconsistent with the totality of the circumstances of the case. In particular, her claim that Ms. Ortiz “quit” is inconsistent with her claim that she was hoping to hire Ms. Ortiz once the LMIA approval came through. Her persistent assertions that she wanted to hire Ms. Ortiz when the LMIA came through is inconsistent with her actions, in particular, her removal of Ms.

Ortiz’s name from the LMIA and her failure to take any steps to notify Ms. Ortiz that, effective November 3, 2015, she had LMIA approval and could now hire her. Her explanation that she could not notify Ms. Ortiz because she had lost her contact information was not credible. [ 52 ] In contrast, the testimony of Ms. Ortiz was quite persuasive. She maintained that she never told Ms. Shokar that she did not want to work for her anymore. Her September 23, 2015 application for restoration of her foreign resident status was consistent with this testimony. That application included Ms.

Shokar’s name as the prospective employer. Ms. Shokar’s address was inserted as the “Intended location of employment”. The Service Canada Contract signed by both parties in June 2015 was attached to the restoration application, along with a copy of Ms. Shokar’s LMIA application. It is clear from these documents and the letter attached to the formal application for restoration of status that Ms. Ortiz was expecting that she would be working for Ms. Shokar once the latter’s LMIA application was approved and that, as of September 23, 2015, Ms. Ortiz did not know that Ms.

Shokar had removed her name from the LMIA application. [ 53 ] I also agree with the following observation by counsel for Ms. Ortiz: “It is not in harmony with the preponderance of reasonable probabilities that Ms. Ortiz, whose ability to remain in Canada was contingent on finding employment, would have voluntarily ended her employment relationship with Ms. Shokar and thus voluntarily jeopardized her status in Canada .” [ 54 ] As for Ms. Ortiz’s allegation that, during her late October/early November 2015 conversation with Ms.

Shokar, the latter told her she was no longer prepared to employ her, this is corroborated by the fact that Ms. Ortiz informed her counsel, Ms. Drolet of this event in early December, 2015. The termination of her employment by Ms. Shokar is reflected in the February 2016 letter from Ms. Drolet to CIC seeking to revise Ms. Ortiz’ application for restoration of status and asking for a ‘bridge extension’ working permit that would allow her time to find another employer. The fact that Ms. Ortiz took this latter step through her counsel was consistent with her assertion that Ms.

Shokar had told her that she was no longer willing to employ her. [ 55 ] In the result, I accept the testimony of Ms. Ortiz where it conflicts with that of Ms. Shokar on critical issues. I am satisfied that her testimony was “in accordance with the preponderance of probabilities” in the case before me. Conclusion [ 56 ] Based on the considerations described above, I find that: (

a) On September 15, 2015, following the September 12, 2015 arrest of Ms. Ortiz, Ms. Shokar removed Ms. Ortiz’s name from her LMIA application without telling Ms. Ortiz. She did so to protect her own interests. She did not want her LMIA to fail. (

b) At no point did Ms. Ortiz tell Ms. Shokar that she no longer wanted to work for her. (

c) Ms. Ortiz filed her application for restoration of her foreign resident status on September 23, 2015 with the full expectation that she would be working for Ms. Shokar once the latter’s LMIA application was approved. (

d) When Ms. Shokar’s LMIA application was approved on November 3, 2015, she took no steps to notify Ms. Ortiz of this fact. I am satisfied that, at this point, Ms. Shokar was no longer prepared to employ Ms. Ortiz in accordance with the terms of the Canada Service employment contract that she had signed back in June 2015. (

e) At the end of October/early November 2015, the parties had their last conversation during which Ms. Shokar finally advised Ms. Ortiz that her name had been removed from the LMIA application. During this same conversation, Ms. Shokar also told Ms Ortiz that, “This isn’t going to work out”. [ 57 ] Assuming that the contract of employment between the parties was valid and enforceable (see below for a discussion of this issue), I am satisfied that Ms. Shokar’s advice to Ms.

Ortiz that her name had been removed from the LMIA application, coupled with her statement, “This isn’t going to work”, when viewed objectively, relayed a clear message: Ms. Shokar no longer wished to employ her. It was more than reasonable for Ms. Ortiz to understand that, at this point, she had been dismissed. At this point Ms. Shokar effectively ‘fired’ Ms. Ortiz without cause. WAS THE SERVICE CANADA CONTRACT ENFORCEABLE?

IF SO, WAS THERE A BREACH OF THAT CONTRACT? [ 58 ] The employment relationship between these parties from June to September 2015 appeared to be based on an oral agreement that followed or mirrored the terms of the contract provided by the nanny agency. This is the agreement that Ms. Shokar signed but Ms.

Ortiz did not. I am satisfied that the parties knew that this employment relationship was not authorized by law. However, Ms. Shokarneeded a nanny for her child and Ms. Ortiz needed to earn some money to send home to the Philippines for the support of her children. Hence, they both benefitted from this initial 3.5-month employment relationship even though it was an illegal one. This illegalemployment relationship clearly came to an end when Ms.

Ortiz was arrested. [59] It is also clear that well before the arrest, the parties wished to legalize their relationship by entering into a proper Live-inCaregiver Contract that complied with the regulations governing Temporary Foreign Workers. To this end, they both signed the ServiceCanada Contract that was submitted to the authorities along with Ms. Shokar’s LMIA application naming Ms. Ortiz as the foreign workerwhom Ms. Shokar was intending to hire. I am satisfied that the parties signed this contract intending that their future employmentrelationship would be governed by its terms.

In my view, this Service Canada Contract is the one that is properly in issue in this case. [60] For different reasons, both parties have presented arguments on the condition precedent contained within the Service CanadaContract. This provision is set out in

section of the contract (p.2). It states: 3. Work Permit Both parties agree that this contract is conditional upon the Employee obtaining a valid work permit pursuant to the Immigration andRefugee Protection Act and its Regulations, and his/her successful entry into Canada. [61] In Zhilka v. Turney, (SCC), [1959] SCR 578, Judson J. defined a true condition precedent in the followingterms at para. 11: 11 . . . the obligations under the contract, on both sides, depend on a future uncertain event, the happening of which depends entirelyon the will of a third party . . .

This is a true condition precedent – an external condition upon which the existence of the obligationdepends. Until the event occurs there is no right to performance on either side. [62] In Dynamic Transport Ltd v OK Detailing Ltd (SCC), [1978] 2 SCR 1072, the court dealt with a contract forthe purchase and sale of property. The statutory requirement for subdivision approval under the Planning Act was found to be an impliedterm of the contract, even though it was not mentioned in the contract.

As such, subdivision approval was held to be a conditionprecedent to the obligations to buy and sell the property. (See paragraph 19) [63] The effect of a true condition precedent was clarified by Dickson, J. in Dynamic Transport Ltd at paragraphs 20, 21 and 22: 20 The existence of a true condition precedent does not preclude the possibility of some provisions of a contract being operativebefore the condition is fulfilled, as, for example, a provision obligating one party to take steps to bring about the event constituting thecondition precedent.... 21 In appropriate circumstances the courts will find an implied promise to one party to take steps to bring about the eventconstituting the condition precedent. . . . 22 There are many cases in which provisions of a contract were subject to the condition precedent of an approval or license beingobtained, and one party was by inference in the circumstances held to have undertaken to apply for the approval or license… This typeof case is merely a specific instance of the general principle that ‘the court will readily imply a promise on the part of each party tosecure the performance of the contract.’” [64] See also Bhasin v Hrynew 2014 SCC 71 at para. 89, wherein Cromwell, J. also indicated that the implied obligation to takesteps towards fulfilling a true condition precedent represents an example of a broader duty of good faith and fair dealing between partiesin the execution of a contract. [65] If a contracting party has failed to meet an implied contractual term to do what they can to ensure that a true condition precedentis met, the court has two potential remedies.

It may either grant specific performance or, if this is no longer feasible, grant damages inlieu of specific performance. See Dynamic Transport wherein Dickson, J. found at paragraph 33: 33 In my opinion, the appellant is entitled to a declaration that the contract between the parties mentioned above is a bindingcontract in accordance with its terms, including the implied term that the respondent will seek subdivision approval.

The appellant isfurther entitled to an order that the respondent make and pursue a bona fide application as may be necessary to obtain registration of anapproved plan of subdivision… In the event that the respondent does not make such application within the time stated, or does notpursue such application with due diligence, the appellant shall be entitled to damages for loss of its bargain in an amount of $147,000. [66] After a review of the legislative and regulatory regime governing temporary foreign workers, the legal principles describedabove and the Service Canada Contract in issue, I am satisfied that the condition precedent set out in

section 3 of the contract does indeedcontain an implied term that both parties are to take all necessary and reasonable steps to ensure that Ms. Ortiz could obtain a valid workpermit authorizing employment with Ms. Shokar. It was up to Ms. Ortiz to obtain the valid work permit but she could not do that unlessMs. Shokar took all reasonable steps to submit an LMIA application with Ms. Ortiz named as the prospective employee. [67] The parties agree that the condition precedent in this case was never fulfilled. They disagree as to the reasons behind thisfailure. The defence position is that Ms.

Ortiz did not obtain a valid work permit within the expected time period of four to six monthsfollowing the initial LMIA application of July/August of 2015; hence, neither party had the right to require performance of thesubsequent obligations in the contract. There was no possibility of a breach of contract because the contract never came into force. Ms.Ortiz’s position is that it was Ms.

Shokar who breached this term of the contract by making fulfilment of the condition precedent by Ms.Ortiz impossible. [68] After reviewing the authorities, the circumstances of this case and submissions of counsel, I have concluded that the positionput forward by counsel for Ms. Ortiz is the correct one.

[ 69 ] I begin by noting that the arrest of Ms. Ortiz by the CBSA on September 12, 2015 and the subsequent problems that she had with the immigration authorities did not ‘frustrate’ the performance of the Service Canada contract that the parties signed. That arrest did not mean that Ms. Ortiz could not receive authorization to work for Ms. Shokar. She still had a valid work permit that was not set to expire until December 2016.

It is true that her status as a temporary foreign worker was in peril given that she had failed to comply with the conditions that she work only for the person named in her work permit (Wendel) and only at the location named in the work permit. These were breaches of s. 185(b) (ii) and (iii) of the Regulations. However, in these circumstances, Ms. Ortiz was entitled to apply for restoration of her temporary foreign worker status under section 182(1) of the Regulations. She did so well within the prescribed 90 day time limit. Her application for restoration of status specifically included a copy of Ms.

Shokar’s LMIA application naming Ms. Ortiz and a copy of the Service Canada contract that the parties had signed. She had employment waiting for her. She met all of the preconditions required by the provisions of Regulation 182(1); hence, she was actually entitled to restoration of her status as a temporary foreign worker. See paragraphs 6 and 7 above under the heading ‘REGULATORY OVERVIEW’.

In particular, see the mandatory language of regulation 182(1): “the officer shall restore that status”. [ 70 ] See also Lim v Canada (Minister of Citizenship and Immigration), 2005 FC 656 at paras 8 .6: 8.6 The discretion of CIC officers is circumscribed.

Under sections 181 and 182, an officer shall extend an application for extension of status and shall restore an application for restoration of status if the requirements of the Regulations have been met. [ 71 ] I have already found that the Service Canada Contract before me contains an implied term that both parties would make good faith efforts to ensure that the condition precedent in the contract – Ms. Ortiz must obtain a valid work permit – would be fulfilled. I am satisfied that Ms.

Ortiz took all the steps that she could take and that she needed to take in order to secure her temporary residence status and to obtain the valid work permit required by the condition precedent. She had properly applied for restoration of her foreign worker status. As long as she had a signed employment contract with Ms. Shokar and so long as she was named in the outstanding LMIA application filed by Ms. Shokar, restoration of her status in Canada was inevitable. [ 72 ] Initially, Ms.

Shokar had also done what she needed to do to ensure that the condition precedent was met when she signed and filed the LMIA with Ms. Ortiz’s name in it. However, on September 15, 2015, 3 days after the arrest of Ms. Ortiz, Ms. Shokar quietly undermined the whole process by removing Ms. Ortiz’s name from her LMIA application and turning it into a ‘no name’ application. She did so in order to protect her own interests. She believed her LMIA application had more chance of success without the Ortiz name. The effect of this action was to completely defeat Ms.

Ortiz’s application for a work permit authorizing her to work for Ms. Shokar. Ms. Ortiz’s lawyer had to write back to the immigration offices asking that “CIC continue processing Ms. Ortiz’s application for restoration and that Ms. Ortiz’s application for a work permit for employment with Ms. Sandy Shokar be converted to a “bridge extension work permit”, so that she could look for other employment. Ms. Ortiz lost the benefit of s. 182(1) under which her restoration of status would have been mandatory. [ 73 ] The action by Ms.

Shokar set in motion a sequence of events that ultimately resulted in the September 2016 “removal hearing”, at which a decision was made that Ms. Ortiz was inadmissible. An exclusion order was issued against her. Her situation was only resolved when her new husband was determined to be an eligible sponsor which, in turn, led to the issuance of an ‘open work permit’ to Ms. Ortiz in December 2016. Ms. Ortiz was then able to find employment. Conclusion [ 74 ] I am satisfied that, when Ms. Shokar removed Ms. Ortiz’s name from her LMIA application, she made it impossible for Ms.

Ortiz to obtain a valid work permit authorizing her to work for Ms. Shokar. By doing so, Ms. Shokar violated the implied obligation in

section 3 requiring her to take the reasonable steps that were within her power to ensure that the condition precedent was fulfilled. [ 75 ] Accordingly, I find that the Service Canada Contract was breached by Ms. Shokar and that she is liable for damages for that breach. [ 76 ] I note that, had Ms. Shokar taken steps to put Ms. Ortiz’s name back onto her newly approved LMIA in early November 2015, Ms. Ortiz’s application for restoration of status might have successfully proceeded without interruption under S. 182(1) of the Regulations. No such steps were taken by Ms. Shokar. DAMAGES [ 77 ] Ms.

Ortiz lost her employment by virtue of the combined effect of being dismissed without cause and the breach of s. 3 of the S ervice Canada Contract employment contract entered into by the parties. She is entitled to damages from Ms. Shokar. The parties disagree as how those damages are to be calculated. [ 78 ] On its face, the Service Canada Contract appears to be a 2-year fixed term contract. See S. 2 of the contract at p. 2 of

Schedule 1 of Document 2 of the Agreed Statement of Facts: 2. Duration of contract This contract shall have a duration of 24 months from the date the Employee assumes his/her functions. [ 79 ] However, the same contract contains explicit ‘early termination provisions’ that can be used by either the employer or the employee. See S. 12 at p. 6 of

Schedule 1 of Document 2 of the Agreed Statement of Facts: 12. Notice of termination of employment The EMPLOYER must give written notice before termination of the contract of the EMPLOYEE. This notice shall be given at least 2 weeks in advance. The parties agree to abide by provincial/territorial labour/employment standards regarding written notice of termination of employment.

Under s. 11 of the contract, the EMPLOYEE is also entitled to give written notice of resignation at least 2 weeks in advance. [80] The authorities establish that fixed term employment contracts may be properly terminated in accordance with explicit earlytermination provisions contained in the contract. [81] In Honey v Star-FM Radio Inc., 2000 BCSC 832, the plaintiff signed an employment agreement with the defendant whichincluded a three year term, subject to an early termination provision that allowed the defendant to dismiss the plaintiff, both for causeand no cause, by providing three months prior written notice.

In this case, the court found that the defendant dismissed the plaintiffpursuant to the terms of the written agreement, i.e. by giving the plaintiff three months’ notice, and that it was entitled to do sonotwithstanding the 3-year fixed term provision. The court dismissed the plaintiff’s claim for wrongful dismissal [82] In Davies v Shineray Suppliers Group Inc., 2017 BCSC 304, the employment agreement was for a five-year term. However,there was an early termination provision that allowed for dismissal of the employee, with or without cause, by providing three months’notice.

The defendant failed to comply with the early termination provision. The plaintiff was given just 2 days’ notice. The plaintiff’sclaim for damages equal to the balance of her salary to the end of the five year fixed term was dismissed. The court found that the earlytermination provision contained in the contract was enforceable, even though the defendant had not complied with the 3 month noticerequirement.

The defendant was only required to provide the plaintiff with 3 months’ worth of salary, in keeping with contractual noticeperiod of 3 months. [83] The above decisions are in keeping with the “long standing authority that permits an employer to rely on a termination clauseeven where the employer does not comply with its terms: see Nygard International Ltd. v. Robinson (1990), (BC CA),46 B.C.L.R. (2d) 103 (B.C. C.A.)”. Cited at Davies, supra at para. 52. [84] Counsel for Ms. Ortiz has pointed to serious problems with the drafting of s. 12 in this Service Canada Contract.

The very sameclause was considered in Pascua v. Khul-Schachter, (ON SCSM), [2013] O.J. No. 3496 (ON Sup Ct J). This wasalso a ‘nanny’ case involving a fixed term and the above early termination clause. The court found the early termination provision to beambiguous and unclear. More importantly, the defendant had not complied with the requirement for written notice. In thecircumstances, the court found the termination clause to be ineffective. It could not be relied upon to “cap the damages to the detrimentof the plaintiff”.

Still, the court rejected a damage award based on the fixed term of the contract and determined damages in accordancewith the common law principle of ‘reasonable notice”. [85] In the present case, it is quite clear that Ms. Shokar did not give written notice of any kind to Ms. Ortiz when she verbally firedMs. Ortiz or when she removed the Ortiz name from her LMIA application. Moreover, counsel for Ms. Shokar has acknowledged thatthe early termination provision (s. 12) “is not sufficiently clear to rebut the common law presumption that the contract of employmentcould be terminated by the Defendant(

s) upon providing the Claimant with common law reasonable notice.” [86] I the present case, I am also of the view that it would be impossible to enforce the early termination clause (s. 12) as drafted. However, I am also satisfied, in keeping with the above authorities, that this clause demonstrated a clear an intention by the parties thattheir contract could be terminated early, notwithstanding the 2-year fixed term. In the result, I am satisfied that early termination withoutcause would require reasonable notice at common law. The initial position taken by counsel for Ms.

Ortiz to the effect that damagesshould be assessed by reference to the 2-year fixed term cannot be sustained in the face of the above authorities. [87] What might reasonable notice be in the unique circumstances of this case? The authorities are clear. A damage award forwrongful dismissal in an employment contract is meant to “compensate the employee for the amount of time that would reasonably beexpected for that employee to find alternate employment”: Pascua, supra, at para 55. The following passage from Bardal v Globe andMail Ltd., (ON SC), [1960] OJ No. 149 (Ont H Ct

J) para. 21 provides further guidance: 21 There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of thenotice must be decided with reference to each particular case, having regard to the character of the employment, the length of service ofthe servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualificationsof the servant. [88] Although similar cases are hard to find, I was referred to one nanny case wherein the plaintiff had worked for the defendant forone year.

The award was for 1 month: Simms v Parkes, 2006 SKQB 326. On the other hand, in the Pascua decision (supra), the nannywas awarded 4 months’ salary after working for the employer for 2 years. In this latter case, the court noted that the defendant hadseriously impeded the plaintiff’s ability to find work by virtue of the way she had handled the termination. She had wrongly alleged justcause and she had refused to provide a reference letter.

The court in Pascua (supra) also made the following observation at para. 61: 61 Even though her employment period was just over two years, in my view it would be inadequate to simply give the plaintiff 2.5months based on the length of service as suggested in the submissions of defendant's counsel. This approach would unduly emphasizethe length of service and under emphasize the availability of similar employment. [89] Counsel for Ms. Shokar has suggested that the reasonable notice period in this case would be four weeks. That proposal isbased upon the in the Simms case (supra), the fact that Ms.

Ortiz had worked for Ms. Shokar for less than 4 months (the illegalemployment period) and the fact that her job required no special training. In my view, this proposal is woefully inadequate. It ignoresthe realities of the situation into which Ms. Ortiz was thrown when Ms. Shokar dismissed her and removed her name from the LMIA. These actions dramatically affected Ms. Ortiz’s employment prospects. It is inconceivable to me that one might reasonably haveexpected that it would only take a month for Ms. Ortiz to find a new employer. This proposal seriously underestimates the availability ofother employment for Ms.

Ortiz, which was essentially non-existent given the immigration problems that arose once the Shokar offer ofemployment evaporated. It also ignores the time it would take for her Ms. Ortiz to go through the foreign worker immigration processwith a new employer, assuming she could even find one. [90] Defence counsel has suggestion that a reasonable period of time for Ms. Ortiz to find alternate employment is the period up tothe point when she received a new work permit (December 8, 2015). That gives us an end point; however, what is the start time for

counting up the months of notice? When would the ‘reasonable notice’ period start? Ms. Ortiz could not even begin to work for Ms. Shokar (or anyone else) until she had her new work permit. Surely, the reasonable notice period could not be calculated from a point in time before Ms. Ortiz was actually able to work. We do know that Ms. Shokar was in a position to hire Ms. Ortiz as of November 3, 2015. That is when her LMIA approval came in. Had Ms. Ortiz’s name remained on the LMIA application, Ms. Ortiz’s temporary foreign resident status would have been restored, as required under s.182(1) of Regulations.

Issuance of a new work permit would have been relatively straightforward. However, I do not have any concrete evidence as to when her application for restoration of status would have been formally granted. If I suggest December 8, 2015 as a hypothetical start date, and December 8, 2016 as an end date, then the reasonable notice period would work out to be 12 months. It seems to me that this approach gives us pretty much the same number of months that would have been payable under the 2 year fixed term. [ 91 ] In my view, the above approach taken on behalf of Ms.

Ortiz fails to adequately reflect the fact that this two-year contract was always one that could be terminated early. This has caused me to ask this question: Assume that the parties had never entered into the initial illegal employment arrangement. Instead, Ms, Ortiz was working for Ms. Shokar legally under a valid permit for a few months. What would a reasonable notice period be if Ms. Shokar dismissed Ms. Ortiz without cause and without written notice? The evidence before me suggests that it would take Ms. Ortiz and a new employer some 4 to 6 months to obtain a LMIA and a new work permit entitling Ms.

Ortiz to work for that employer. It seems to me that this 4 to 6 month time estimate must at least set a baseline for determining what is reasonable notice in a nanny case involving the Federal government and a temporary foreign worker. [ 92 ] The above scenario does not contain any of the immigration complications that exist in this case. Those complications cannot be ignored. The final and most serious ‘immigration event’ occurred when Ms. Shokar unilaterally removed Ms. Ortiz’s name from her LMIA application on September 15, 2015, thereby undermining Ms. Ortiz’s ability to obtain a valid work permit. Once Ms.

Ortiz’s name was removed from the LMIA, her status in Canada was in peril. She had to apply for a bridge extension permit. She was summoned to a removal hearing. Eventually there was an order requiring her removal from the country. In the above circumstances, it was inevitable that the time Ms. Ortiz needed to regularize her status such that she could again be employable would be lengthened beyond the 4 to 6 months described above. [ 93 ] In assessing what reasonable notice might be in this case, I am taking into account the totality of the circumstances that might have impacted the time it would take Ms.

Ortiz to secure her legal status and find new employment, including the conduct of the parties prior to the collapse of the employment relationship. Ms. Shokar and Ms. Ortiz both knowingly embarked upon an illegal employment relationship that resulted in the September 12, 2015 arrest of Ms. Ortiz. They both bear responsibility for that illegal activity, although it would seem that only Ms. Ortiz has suffered any consequences. It is clear that this activity is what triggered Ms. Ortiz’s subsequent immigration problems. In my view, like Ms.

Shokar, she bears some responsibility for her predicament with the immigration authorities and for her inability to work pending resolution of those problems. The notice period should reflect the fact that he too contributed to the length of time it took for her to be able to work again. Conclusion [ 94 ] In the end, I have concluded that reasonable notice should be set at 7 months. [ 95 ] The parties are in agreement that damages should be calculated in accordance with wages of $10.50 an hour for a 40 hour work week, plus vacation pay.

I will leave it to the parties to calculate the total damage award. [ 96 ] Costs are awarded to the claimant. I will receive written submissions if there are any issues in this regard. SANDY SHOKAR coba DIAMOND DEALS [ 97 ] The claim against Sandy Shokar coba Diamond Deals is dismissed. There was no evidence of an employment relationship between this proprietorship and Ms. Ortiz. [ 98 ] Any costs incurred specifically by these defendants are recoverable by these defendants. BY THE COURT ________________ F.E Howard, P.C.J.