Nana Mikhelidze - v. -, 2015 SKPC 72

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2015 SKPC 072 Date: May 4, 2015 File: SC# 478 Location: Saskatoon _____________________________________________________________________________ Between: Nana Mikhelidze - and - Igor Bogomazov Justin Luddington For the Plaintiff Self For the Defendant _____________________________________________________________________________ JUDGMENT S.L. METIVIER , J _____________________________________________________________________________ [ 1 ] The Plaintiff is a certified immigration consultant from Edmonton Alberta.

In the summer of 2011, her attention was drawn to an internet website where the Defendant advertised that he could provide immigration services in Saskatchewan. In subsequent conversations, the Defendant stated that he knew many employers in Saskatchewan and could find employment opportunities that would allow qualified foreign workers to come to Canada and live and work in Saskatchewan under the Saskatchewan Immigrant Nominee Program (SINP).

[ 2 ] The Plaintiff and Defendant entered into an Agency Agreement, drafted by the Defendant, under which the Defendant agreed to act as her agent in Saskatchewan for the purpose of providing immigration related services. [ 3 ] The relevant parts of the Agency Agreement read as follows: 4.

Responsibilities 4.1 Bogomazov shall be responsible for the following matters: a.) marketing (expenditures in the sole discretion of Bogomazov); b.) refer the clients to Nana for providing immigration related services; c.) facilitating Nana initial communications with the Clients; d.) co-ordinating the execution of Nana Retainer agreement with the Clients; e.) advising and facilitating transfer of Fees (define below) from the Clients to Nana when due; f.) assist Clients to receive and collect the necessary documentation and information as may be required and/or instructed by Nana; g.) receiving and collecting the necessary documentation and information from Canadian employers and the clients for and behalf of Nana, with further transferring that to Nana, and h.) Bogomazov may not, under any circumstance, represent and advise a Client for fee. 5.

Fees The Parties agree that Nana shall charge Client $10,000 CAD (herein “Fees”) for services contemplated by the parties in this Agreement. The Fees exclude applicable government application fees and/or tariffs, which shall be payable by the Clients.

The Clients will pay Nana, in the following manner (herein “Payment Schedule”): a.) $2000.00 (CAD) upon signing of the Retainer Agreement; b.) $2000.00(CAD) upon Nana ensures that Saskatchewan employer issued and signed Offer of employment in regard to the Client; c.) $3000.00 (CAD) upon completion of the Application Kit by Nana with Bogomazov assistance, and prior to its submission to the Saskatchewan Immigrant Nominee Program; d.) $2000.00 (CAD) upon the Nana receiving Nomination Letter from Saskatchewan Immigrant Nominee Program and providing

same to Client; e.) $1,000.00 (CAD) upon completion of the Application Kit, and prior to Nana submitting to the Citizenship and Immigration Canada for finalizing. 6. Compensation 6.1 Nana agrees to pay 50% of the Fees to Bogomazov according to the Payment

Schedule contemplated in

Article 5 herein. The parties agrees to the following way of reciprocal payments (herein “Reciprocal payment): 6.2 The Client transfers the Fees to bank account of Bogomazov. 6.3 Bogomazov transfers 50% of Fees to bank account of nana within 5 (five) bank days upon receiving the Fees from the Client. [ 4 ] Sometime after the Agency Agreement was signed, the parties realized that the Defendant was not lawfully permitted to collect fees from clients as he was not a licensed immigration consultant.

It was therefore agreed that the fees would be paid to the Plaintiff who would transfer 50% to the Defendant within two working days of receipt. [ 5 ] In the winter of 2011, the Defendant advised the Plaintiff that he knew of a Saskatchewan employer, Olga Enterprise, that had previously nominated a few people under the SINP and could hire ten more foreign workers to fill jobs in the construction industry.

The Defendant did not mention to the Plaintiff that Olga Enterprise was owned by his common law spouse. [ 6 ] Based on the information provided by the Defendant, the Plaintiff entered into written Retainer Agreements with seven clients in Georgia and Armenia that wished to apply for residence in Saskatchewan under the SINP . The Retainer Agreement was drafted by the Defendant. At the Plaintiff ’ s suggestion, it was amended to include the following refund policy: The Representative guarantees money return IN FULL with the exception of courier fees, in case of documents rejection by SINP.

The Representative WILL NOT refund money if the refusal is base do on medical inadmissibility, criminal inadmissibility, a finding of misrepresentation or a lack of credibility. [ 7 ] The Plaintiff testified that she discussed the refund policy with the Defendant and he agreed to it. The Defendant denies that he agreed to be bound by the refund policy and says that any obligations arising out of the Retainer Agreement are strictly between the Plaintiff and her clients. [ 8 ] Olga Enterprise issued job offers to each of the seven clients. The Plaintiff completed the applications and submitted them to SNIP.

The clients paid approximately $49,000.00 to the Plaintiff, who transferred $24,358.00 to the Defendant. [ 9 ] In November, 2013, SINP rejected the applications and advised the Plaintiff that the job offers provided by Olga Enterprise were not approved as the business did not have sufficient sales to bring foreign workers to Saskatchewan . The Plaintiff immediately notified the Defendant of the problem and asked him to contact the employer to discuss the matter with SINP. The Defendant suggested various “ fixes ” to the problem, but ultimately nothing was done.

The applications were brought to a conclusion in the winter of 2014 when SINP closed its files. [ 10 ] The Plaintiff honoured the terms of refund policy and returned the full amount of fees to the clients. She then demanded that the Defendant reimburse her for his share of the fees in the amount of $24,358.00. The Defendant initially stated that he would return the fees when he had the money to do so. He now refuses to return his share of the fees and argues that he is not legally obligated to do so.

[ 11 ] The issue in this case is whether the Defendant is legally obligated to return his share of the fees to the Plaintiff. [ 12 ] The Agency Agreement provided a legal mechanism for the Defendant, who is not a licenced to act as an immigration consultant, to get paid for providing immigration related services. The Defendant was not a bit player in this business relationship. He drafted both the Agency Agreement and the Retainer Agreement. His responsibilities under the Agency Agreement contemplate him have direct and personal involvement with the clients.

The Plaintiff and Defendant stood to profit equally from signing up new clients. [ 13 ] I find that there was a collateral agreement between the parties that the Defendant would be bound by the refund policy in the Retainer Agreement. The following three elements are required for enforcement of a collateral contract:

a) the terms of the contract are clearly shown;

b) there is a clear intention to contract; and

c) the collateral contract is not inconsistent with or does not contradict the main contract [1] . [ 14 ] I am satisfied that all three elements are established in this case. The terms of the refund policy are set out in the Retainer Agreement and, in my view, are not inconsistent with the Agency Agreement. [ 15 ] T he Defendant ’ s intention to be bound by the refund policy is demonstrated by emails he sent to the Plaintiff acknowledging the debt. On November 7, 2013, the Plaintiff sent an email to the Defendant advising him that all positions offered by Olga Enterprise were determined to be ineligible.

The Defendant responded as follows: So, they do not want to proceed with that any more. Ok, I am waiting for money soon, will return. Please give me the names, dates and money that they paid me. [ 16 ] On March 20, 2014, the Defendant provided the following response to a demand letter sent by the Plaintiff: I can not draw money. I am waiting for that home was sold asap. I confirm that I will pay all debt back without delay.

Please calm down. [ 17 ] The Defendant testified at trial that he offered to pay the money back to the Plaintiff to help her out due to their ongoing working relationship, but changed his mind when she ended that relationship. I cannot accept the Defendant ’ s evidence in that regard, as it is inconsistent with the business relationship between the parties and the content of the above noted emails.

On the basis of the Plaintiff ’ s evidence, as well as the emails sent by the Defendant to the Plaintiff, I am satisfied that he was fully aware of the refund policy and intended to be contractually bound to return his portion of the fee if the applications were rejected by SINP. [ 18 ] I conclude that under the terms of a collateral verbal agreement between the parties, the Defendant is legally obligated to return the sum of $24,358.00 to the Plaintiff.

Accordingly, the Plaintiff shall have judgment against the Defendant in the amount of $20,000.00, which is the monetary limit under the Small Claims Act . [ 19 ] The Defendant brings a counterclaim against the Plaintiff for $10,000.00, which he alleges is due and owing to him under the terms of the Agency Agreement regarding two clients, Kartveishvili Nona and Janelidze Kakhabar. The Plaintiff testified that the clients in question are spouses. The Plaintiff received $4000.00 in fees from Janelidze Kakhabar and transferred $2000.00 to the Defendant.

When the job offer for Janelidze Kakhabar was found to be invalid, the fees were transferred to the benefit of Karveishvili Nona. That application is still in progress. I conclude that there is no money due and owing to Mr. Bogomazov. [ 20 ] To summarize, the Plaintiff shall have judgement against he Defendant in the amount of $20,000 plus the costs of issuing the claim in the amount of $100.00. The Defendant’s counterclaim is dismissed. ____________________________ S.L. Metivier, J

[1] River Wind Ventures Ltd. V. British Columbia , 2011 BCCA 79 .