Lihua Bao Plaintiff v. Welltrend United Consulting Inc., Beijing, Limin Wang,, 2023 BCSC 1566

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Bao v. Welltrend United Consulting Inc., 2023 BCSC 1566 Date: 20230906 Docket: S15150 Registry: Vancouver Between: Lihua Bao Plaintiff And Welltrend United Consulting Inc., Beijing, Limin Wang, Rong Huang, Hai Huang, Welltrend Canada Consulting Inc. Defendants Before: The Honourable Justice Kirchner Reasons for Judgment The Plaintiff, appeared on his own behalf: L. Bao No other appearances: Place and Dates of Trial: Vancouver, B.C. December 12-13, 2022 August 22, 2023 Place and Date of Judgment: Vancouver, B.C.

September 6, 2023 Table of Contents Introduction .. 3 The Proceedings and Jurisdiction .. 4 Background .. 5 Mr. Bao’s Position .. 13 Analysis .. 17 Liability . 17 Remedy . 20 Legal Principles . 21 Application to this Case . 25 Remedy for Breach of Contract 25 Punitive Damages . 29 Conclusion .. 31 Introduction

[ 1 ] The plaintiff, Lihua Bao, is a lawyer called to the bar of Ontario. He alleges the defendants appropriated his name and forged his signature as a lawyer on a number of immigration applications submitted to provincial immigration nominee programs on behalf of their clients. He seeks damages for the misuse of his name and signature. [ 2 ] The immigration applications were submitted by the defendant Welltrend United Consulting Inc., Beijing (“Welltrend Beijing”) on behalf of clients seeking to immigrate to Canada from China.

Welltrend Beijing is an immigration consulting firm in China but at the material times was not registered as a qualified immigration consultant in Canada. It therefore required a Canadian lawyer to sign off on its clients’ applications to this country. It contracted with Mr. Bao to provide those legal services. The agreement with Mr. Bao was limited to applications made to the Government of Canada (i.e., Immigration, Refugees and Citizenship Canada or “Immigration Canada”). Welltrend Beijing and Mr. Bao discussed another arrangement whereby Mr.

Bao would provide the same kind of services for applications submitted through provincial immigration nominee programs but no agreement was reached in this respect. [ 3 ] Despite that, Welltrend Beijing submitted some 25 applications to a Nova Scotia immigration nominee program using Mr. Bao’s name as the authorized immigration representative and forging his signature on the forms without Mr. Bao’s knowledge or consent. Mr. Bao only learned of this when an official with the Nova Scotia Immigration Office made an inquiry with him about five of the applications. [ 4 ] Mr.

Bao claims Welltrend Beijing’s actions constitute a breach of contract. He also alleges that Welltrend Beijing together with the other defendants acted fraudulently and conspired to commit an unlawful act to harm him. Finally, he argues that Welltrend Beijing has been unjustly enriched at his expense by collecting fees from its clients for the immigration applications and collecting commissions paid by the Nova Scotia government for each successful application.

He seeks an order disgorging Welltrend Beijing of all profits it has earned from the applications filed using his name. [ 5 ] The defendants filed a response to civil claim but after changing lawyers in 2018, their second lawyer withdrew in June 2022 and none of the defendants appeared at trial even though they were duly served with the notice of trial. The Proceedings and Jurisdiction [ 6 ] Mr. Bao filed his original notice of civil claim on February 24, 2015.

The lawsuit’s only connection to British Columbia is that the defendant Welltrend Canada Consulting Inc. (“Welltrend Canada”) is registered as a British Columbia company. However, Mr. Bao’s contract was with Welltrend Beijing, not Welltrend Canada. While there may be some ownership connections between the two companies, Welltrend Canada is a separate company with no involvement in this matter. Mr. Bao is called to the bar of Ontario, not British Columbia. The events that give rise to the claim occurred largely in Beijing and the immigration applications at issue were submitted to the Government of Nova Scotia.

This proceeding’s connection to British Columbia is tenuous at best, held only by the thread of Welltrend Canada being a British Columbia company. [ 7 ] Despite this weak connection, the defendants retained a Vancouver lawyer who filed a response to civil claim on March 17, 2015. None of the defendants filed a jurisdictional response under Rule 21-8 of the Supreme Court Civil Rules , B.C. Reg. 168/2009 . Thus, they have submitted to this jurisdiction pursuant to s. 3 (

b) of the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 . [ 8 ] In October 2018, the defendants’ first lawyer withdrew and was eventually replaced by another lawyer. That lawyer also withdrew in June 2022, but not before Mr. Bao had served the notice of trial. [ 9 ] After the second lawyer withdrew, and even though the notice of trial had been served on that lawyer while on record, Mr.

Bao couriered a copy of the notice of trial, a requisition for a trial management conference, and his trial brief to the Beijing street address for delivery for all defendants given in the second lawyer’s notice of withdrawal. He also sent the documents to the three email addresses given in the notice of withdrawal. The courier reported that the package was undeliverable as the addressees were no longer at that location. Two of the three emails bounced back with an undeliverable message. As noted, none of the defendants appeared at trial. [ 10 ] I was satisfied that Mr.

Bao had properly served notice of trial on the defendants’ counsel of record before he withdrew in June 2022. In addition, Mr. Bao made reasonable efforts to inform the defendants of the trial date even after the lawyer withdrew. I was therefore satisfied that the defendants had notice of this trial and elected not to appear. I allowed Mr. Bao to proceed with his case in their absence. Background [ 11 ] Mr. Bao obtained his law degree from the University of Windsor in 1994. He was called to the Ontario bar in 1996 and is presently in good standing with the Law Society of Ontario.

He has worked as an immigration lawyer since 1996. From 1996 to 2021 he worked out of an office in Beijing, China where he provided services to Chinese residents seeking residency in Canada. He prepared and submitted immigration applications on their behalf and charged a fixed fee for each application. He also appeared in Federal Court from time to time to challenge some decisions rejecting his clients’ applications. [ 12 ] Welltrend Beijing is a Chinese Company and, according to Mr. Bao, was at one time the largest immigration consulting firm in China.

The defendant Limin Wang is, or was at the material times, the president of Welltrend Beijing. He was also the principal and later the sole shareholder of Welltrend Canada. [ 13 ] The defendant Rong Huang is Mr. Wang’s spouse and the defendant Hai Huang is Mr. Wang’s sister. Rong Huang and Hai Huang are the sole shareholders of Welltrend Beijing. [ 14 ] Mr. Bao and Limin Wang came to know each other working in the immigration consulting and advising business in Beijing.

They connected in part because, like Mr. Bao, Mr. Wang had attended university in Canada. [ 15 ] Mr. Bao testified that in the early 2000s Canada brought in new legislation to regulate the immigration consulting business. According to Mr. Bao, under the new regulations only lawyers certified to practise in Canada or registered immigration consultants were permitted to advocate on behalf of persons applying for immigrant or refugee status in Canada.

A central regulatory body was established and any person wishing to work as an immigration consultant had to be accepted for registration by that regulatory body unless they were a lawyer. Since Mr. Bao was a lawyer called to the Ontario bar, he did not need to qualify as a consultant under this new regime. [ 16 ] Welltrend Beijing, on the other hand, either had to be accepted for registration as a certified immigration consultant or, alternatively, retain the services of a qualified Canadian lawyer to represent their clients applying to immigrate to Canada. Mr. Wang approached Mr.

Bao to retain him for this purpose. [ 17 ] By agreement dated April 20, 2004, Welltrend Beijing and Mr. Bao entered into a contract for Mr. Bao to represent Welltrend Beijing’s clients in their Canadian visa applications. The agreement is in Chinese but Mr. Bao, who reads and speaks both Mandarin and English, translated the document and that translation, along with a copy of the original agreement in Chinese, is in evidence. [ 18 ] The Agreement states in part: 2

(1) Party B [Mr. Bao] agrees to act as the lawyer for Party A [Welltrend Beijing] and the group’s members in their Canadian visa application business and to sign documents to be submitted for immigrant, non-immigrant, and student visa applications. Mr. Bao testified that “the group’s members” refers to Welltrend’s 11 different offices in China. [ 19 ] Mr. Bao was to be paid a monthly flat fee of 5,000 Yuan (then worth about $800 CAD) for these services. [ 20 ] Mr.

Bao emphasized his contract with Welltrend Beijing did not include providing legal services for Welltrend clients making immigration applications through provincial nominee programs or Quebec’s immigration investor program. Mr. Bao said the provincial nominee programs arose out of agreements between the federal government and each province. Essentially, an applicant seeking to immigrate to Canada can apply to a provincial nominee program for a nomination certificate. The applicant is required to make some commitment to the province, such as making a certain investment in the province.

If the applicant is approved by the province they will receive a nomination certificate from that province. With the benefit of that certificate, the applicant may then apply to Immigration Canada for a visa, relying on the strength of the provincial nomination. The nomination certificate does not guarantee federal approval and many applicants are not approved but I gather the provincial certificate provides some support for the application. [ 21 ] In November 2011, the Director of Project Development for Welltrend Beijing, Wang He, who is also known as Nancy Wang, asked Mr.

Bao if he would represent Welltrend Beijing’s provincial nominee applicants. She was specifically looking for services for applicants to the Saskatchewan and Prince Edward Island provincial nomination programs. Mr. Bao offered to do the work for a monthly rate of 3,000 Yuan (then worth around $500 CAD) for each province (6,000 Yuan in total for the two provinces). Ms. Wang asked for a lower rate because Welltrend Beijing did not have many clients applying under either program, but Mr. Bao was firm in his position and said Welltrend should seek out another lawyer if it did not wish to pay his fee.

Nothing further came of this proposal and no agreement was made. However, the parties continued to operate under their 2004 agreement as it related to applications directly to Immigration Canada. [ 22 ] On November 24, 2014, Mr. Bao received five letters by email from John MacDonnell of the Nova Scotia Immigration Office. Mr. MacDonnell was the Nova Scotia Nominee Program Economic Stream Claims Administrator. Each of the five letters from Mr. MacDonnell is identical with the exception that each relates to a different successful applicant under Nova Scotia’s nominee program.

Each letter states the following: We write to you regarding your one-time client under the Nova Scotia Nominee Program’s (NSNP’

s) Economic Stream. According to our records, you – on behalf of Well Trend United Inc. – were the representative affiliated with the above noted applicant and have not applied for the $20,000 CAD commission associated with the application. Enclosed is an information sheet which explains the commission payout policy and eligibility. Please contact us if you are unsure regarding your eligibility or require further information. You have 90 days from the date of this letter to apply for the commission.

Failure to apply will be acknowledged as forfeit of any potential commission. [ 23 ] As the letter suggests, Nova Scotia pays a $20,000 commission to an authorized immigration representative who refers a successful applicant to the Nova Scotia Economic Stream application process. As the information sheet provided by Mr.

MacDonnell explains, once an applicant has received a nomination certificate from Nova Scotia and a permanent resident visa from Canada, the Nova Scotia government will pay $20,000 to the applicant’s representative provided the representative is a lawyer in good standing with a law society in Canada or an immigration consultant in good standing with the Canadian Society of Immigration Consultants. [ 24 ] Mr. Bao was surprised to receive these letters since he had never acted as a representative for any of Welltrend’s clients applying under the Nova Scotia program.

Nor had he ever heard of any of the five successful applicants named in the letters. [ 25 ] Mr. Bao forwarded the five emails to Mr. Wang at Welltrend Beijing on November 30, 2014 without comment. He says he did not speak with Mr. Wang because his strategy was to see how Mr. Wang would respond. [ 26 ] On December 3, 2014 Mr. Bao received an email from Jenna Zhang who identified herself as the financial affairs assistant to Mr. Wang. She states that Mr. Wang tasked her to speak with Mr. Bao about the emails.

She confirmed the five successful applicants identified in the letter are Welltrend clients and she claimed Welltrend retained Mr. Bao to represent those clients in their immigration applications. (This latter assertion is not true.) She noted Nova Scotia’s requirement that Mr. Bao apply for payment of the commission and asked Mr. Bao if he was willing to help by signing the applications for payment of the commissions.

[ 27 ] Mr. Bao says he did not respond to this email. However, Ms. Zhang emailed him again on January 8, 2015 referring to a conversation she had with him. She wrote: I reported to the President about your earlier phone call to me with regard to the commission issues. The President of our company is first of all thankful for the prompt feedback from you and the prompt response to our phone calls. Looking back, Welltrend has worked with you for more than 10 years and the cooperation has been smooth and pleasant to both sides. Also, Welltrend has never caused any difficulties or legal troubles for you.

Now, Welltrend has indeed encountered difficulties in getting the commissions from the government of Nova Scotia. Therefore, we want the then lawyer (which is you) to get back the money to which Welltrend is entitled. Welltrend did its best and incurred huge costs helping these clients succeed in their immigration applications. Therefore, we strongly wish that you could understand the difficulties that Welltrend now faces and help Welltrend overcome the difficulties. [ 28 ] Ms. Zhang goes on to make the following offer: 1.

We will retain you as our representative to obtain the commissions for the five clients from the government of Nova Scotia; 2. We suggest that the personal bank account of the President of our company will be used in receiving the commissions; 3. We will pay you $5,000 for your work after the commissions are received by Welltrend. [ 29 ] Mr. Bao responded to this email on January 9, 2015: First, I want to make it clear that there has been no agreement between your company and myself that I act for the Nova Scotia-bound clients of your company. In addition, I have never agreed to acting for such clients.

On a separate note, please advise whether your company has submitted any applications to Nova Scotia under my name. If not, please explain why the government of Nova Scotia contacted me with regard the clients of your company. [ 30 ] Ms. Zhang responded with an email of January 13, 2015 that was copied to Mr. Wang. In it she writes: There might be some misunderstanding regarding this matter because those who were responsible for the Nova Scotia program have left over the years.

Before I contacted you, I was told you were the lawyer for the “Nova Scotia program”, though in fact you are Welltrend’s lawyer “who only represents the federal programs”. I was unable to tell the difference between the two because my job is not related to immigration business resulting in the subsequent misunderstanding. After investigation into this matter, I can assure you that we have not used your name when submitting applications to the Nova Scotia program. In the past, I heard that the government of Nova Scotia contacted our company and asked who was the lawyer representing Welltrend.

Because you are a long-term lawyer of Welltrend, my colleague thought you must be the lawyer for the Nova Scotia program and responded by saying so. The response was wrong and therefore led both Nova Scotia and me to believe that you were the lawyer for the Nova Scotia program. I am sorry to have caused the confusion due to the staff turnover and the incompetence on my part. [Emphasis added.] [ 31 ] In fact, contrary to this email (and the underlined portion in particular), Welltrend Beijing had falsely identified Mr.

Bao as the lawyer for these applications and had done so by forging his signature on the applications. [ 32 ] At some point in late 2014 or in January 2015, Mr. Bao spoke with Mr. MacDonnell at the Nova Scotia Immigration Office and advised him that he did not represent any of the five individuals identified in Mr. MacDonnell’s November 24, 2014 letters. Mr. MacDonnell provided Mr. Bao with copies of the documents submitted on behalf of these individuals which contained Mr. Bao’s name and signature as the representative. Mr. Bao confirmed to Mr.

MacDonnell that the signatures were forged. [ 33 ] On January 22, 2015, Mr. MacDonnell wrote to Mr. Wang at Welltrend Beijing as follows: The Nova Scotia Office of Immigration has identified 36 applications in its files originating with Well Trend United Inc. Beijing or related companies. All but one of these were for applicants to our former Economic Stream. The exception is a successful application to our Regional Labour Market Demand Stream received in March 2014. I have recently been in touch with lawyer Lihua Bau who provides services to your company. Mr.

Bao informed me that he has never acted as an authorized representative for Nova Scotia Nominee Program applicants who came to the program through Well Trend. This information concerns our Office greatly because Mr. Bao is listed as the authorized representative in many of these cases. In fact, his signature appears to be on numerous documents related to those cases. I sent Mr. Bao samples of his apparent signature from our Well Trend cases, which I have attached, and he has informed me that, without question, the signatures are forgeries which were not written nor authorized by him.

As you may know, I recently contacted Well Trend regarding the disbursement of five $20,000 commission payments stemming from Economic Stream nominations. In light of the fact that none of the nominees apparently had an authorized representative, our intent is now to reimburse the five nominees directly. Further, the Nova Scotia Office of Immigration must seriously consider ceasing to accept any applications from Well Trend as it appears the company has misled this Office on numerous occasions.

Before making a final decision on the disbursement of commission funds and on our future relationship with Well Trend, would like to offer you an opportunity to respond. Please provide any relevant information to me within 15 business days of the date on this letter, which I am sending as an email attachment to wt@welltrend.cn. Please be aware that we have informed Citizenship and Immigration Canada of our concerns via copy of this letter. [ 34 ] By email dated February 10, 2015, Victor Lum, the “Vice-President of Business” for Welltrend Beijing responded to Mr. MacDonnell on the company’s behalf.

He maintained Welltrend ensures the work it submits on behalf of its clients is “professional and beyond reproach” and, for this reason, they were “shocked” to receive Mr. MacDonnell’s letter. He said they are paying “GREAT attention to this matter”. He said since the applications were submitted some time ago, Welltrend needed more time to investigate the matter. He said he would report back to Mr. MacDonnell as soon as possible. Mr. MacDonnell confirmed in his testimony that Mr. Lum did not report back to him, contrary to Mr. Lum’s advice that he would. [ 35 ] In February 2015, Mr.

Bao had a conversation with Mr. Wang. He says he told Mr. Wang to stop lying about the matter and Welltrend needed to compensate Mr. Bao for its actions. Mr. Wang advised Mr. Bao that Luo Xiaoxi, executive Vice President of Welltrend Beijing, would contact Mr. Bao to try to resolve the matter. [ 36 ] On February 15, 2015, following some discussion between Mr. Bao and Mr. Luo, Mr. Luo wrote to Mr. Bao setting out the first draft of a potential agreement to resolve the matter.

In this email, he wrote in part: The following is a draft agreement that, I will ask Victor to meet you in your office tomorrow so that the two of you can sign the agreement on the spot. We can start implementing it after it becomes valid. [ 37 ] The draft agreement stipulated that Welltrend would offer a written explanation to Nova Scotia for having put Mr. Bao’s signature on the applications. The explanation would provide the history and current status of cooperation between Mr. Bao and Welltrend Beijing and it would reveal that Mr.

Bao had been signing blank forms for Welltrend’s use during their 10-year relationship (I will return to this point later). [ 38 ] Mr. Bao was to work with Welltrend in preparing that explanation and he would be required to support this explanation, regardless of whether it had incorporated his advice or not. The explanation, though, was to be drafted in a “true and honest manner.” [ 39 ] Mr. Bao was to become the legal representative for those persons whose applications were still pending as well as for three or four other applications that were being prepared.

If Nova Scotia did not accept Welltrend’s explanation for forging Mr. Bao’s signature on the applications, Mr. Bao would be obligated to commence a lawsuit against Nova Scotia, presumably seeking an order that it must accept Mr. Bao as a legal representative and pay the commissions. Mr. Bao would be required to pay for that lawsuit. [ 40 ] Mr. Bao would receive 1 million Yuan, half of which was to be paid up front and the other half upon the conclusion of the matter even if the lawsuit was not ultimately successful. Mr.

Bao would agree to release Welltrend from any further claims in the matter, but, if further forgeries of his signature are discovered, Welltrend would compensate Mr. Bao $50,000 for each occasion. [ 41 ] The proposed agreement was not completed. Mr. Bao testified that Welltrend did not “honour the offer”. He did not disavow the offer or suggest it could not have led to a resolution of the matter but simply testified that Welltrend walked away from the discussions and the proposed agreement was not pursued. On February 24, 2015, Mr. Bao commenced this action. [ 42 ] By email dated March 10, 2015, Mr.

MacDonnell advised Mr. Bao that he had identified 18 additional cases filed in Nova Scotia by Welltrend where Mr. Bao was named as the representative. He said Nova Scotia has 34 cases in which Welltrend was involved, 28 of which could have resulted in a payment of a commission. He states three of the 28 cases do not contain Mr. Bao’s name. Thus, 25 of those cases name Mr. Bao as representative. [ 43 ] Mr. MacDonnell was not scheduled to testify but it became apparent during the trial in December 2022 that Mr. Bao was tendering Mr.

MacDonnell’s March 10, 2015 email for the truth of its contents and that he needed that evidence as part of his case. The trial was therefore adjourned while Mr. Bao arranged for Mr. MacDonnell to give evidence. The trial resumed in August 2023 and I granted leave for Mr. MacDonnell to testify by video conference from Nova Scotia. In his evidence, he confirmed the facts as set out in the March 10, 2015 email and authenticated his other communications that are in evidence. Mr. Bao’s Position [ 44 ] Mr.

Bao argues that Welltrend Beijing has wrongfully profited by forging his name on the Nova Scotia applications as well as other provincial immigration programs. Since these applications could only have been made by a practising lawyer or a certified immigration consulting firm, Welltrend could not have made them without wrongly using his name. He argues that Welltrend should not be permitted to retain any profit it has earned from these applications because of the misuse of his forged signature.

He therefore seeks an order that would disgorge Welltrend of all profits from the applications, including any $20,000 fee paid by Nova Scotia plus any fee each applicant paid to Welltrend for the preparation of the application. [ 45 ] In seeking to quantify the profits Welltrend has earned from these applications, Mr. Bao relies on the affidavit of Weihang Hu who was the General Manager of Welltrend Beijing from 2004 to 2008. Since the defendants did not appear at trial, Mr. Hu would not be cross-examined if he attended to give evidence in person. I therefore allowed Mr.

Hu’s evidence to be tendered by affidavit. [ 46 ] Mr. Hu deposes that to the best of his knowledge and memory, Welltrend charged a fee of “approximately $50,000 [Canadian] per business client” for the Nova Scotia and New Brunswick nomination program applicants. He recalls they charged $10,000 for applicants to the Nova Scotia’s Regional Labour Market Demand program. He recalls they charged $13,000 per investor client for Quebec Immigration Investor Program applicants and received “about $50,000 in commission per client” who invested in the Quebec

program. [ 47 ] Mr. Bao attempted an examination for discovery of Mr. Wang on August 3, 2021 but Mr. Wang claimed he was unable to answer some basic questions about Welltrend’s business and its structure. Mr. Wang eventually cut off the discovery stating that he was unwell and had not slept the night before. Neither he nor the defendants’ counsel at the time, who attended the discovery, would commit to another date to continue the discovery. Mr. Bao did not pursue further discovery after this. He says Mr.

Wang’s lack of co-operation in the discovery limited his ability to obtain more detailed evidence about what Welltrend charged its clients for applications to the provincial nominee programs. However, Mr. Bao did not bring an application to compel a continuation of the discovery. [ 48 ] Mr. Bao also relies on Mr. MacDonnell’s evidence of his file review in Nova Scotia. That review located 34 applications to the Nova Scotia Economic Stream program from Welltrend clients, 28 of which had resulted in a client receiving a visa from Canada.

Nova Scotia would have paid a $20,000 commission (either directly or through its agent Cornwallis Financial Corporation) for 23 those 28 successful applicants. The other five for which no commission was paid were those brought to Mr. Bao’s attention in Mr. MacDonnell’s November 24, 2014 letters. Those commissions have not been paid and I expect will never be paid given Welltrend’s falsification of Mr. Bao’s signature. [ 49 ] Of those 28 successful applications, 25 falsely named Mr. Bao’s name as a representative. Commissions were paid on 20 of those 25 applications made in Mr. Bao’s name.

As noted, payment was withheld or given to the applicants themselves on the other five which were the subject of the November 24, 2014 letters. [ 50 ] Thus, Mr. Bao seeks disgorgement of the following from the Nova Scotia applications: • 25 successful applications that identified Mr. Bao as the representative multiplied by the $50,000 fee Mr. Hu says Welltrend charged its clients.

This makes for a total of $1.25 million in client application fees; and • 20 applications for which Nova Scotia, either directly or through Cornwallis, paid the $20,000 commission to Welltrend Beijing, for a total amount of $400,000. [ 51 ] Mr. Bao did not know if Welltrend charged clients whose applications were unsuccessful. For that reason, even if I find that Welltrend must disgorge the client application fees it received for the applications in question, I would not include fees for the six unsuccessful applications because Mr. Bao has not established that Welltrend charged a fee for those. [ 52 ] Mr.

Bao argues he should also receive $20,000 for each of the five applications referred to in Mr. MacDonnell’s November 24, 2014 letter. However, those commissions were never paid to Welltrend and thus are not part of the profit that Welltrend has earned from its unlawful use of Mr. Bao’s name. [ 53 ] Mr. Bao also claims that Welltrend submitted four applications to the Quebec nominee program and six applications to the New Brunswick nominee program using his name as a representative. He argues he should receive at least the client application fee for each of these.

He bases this on the fact that these applications were included in Welltrend’s document production but the page of each document that might have identified Mr. Bao as the representative was missing from the production. Mr. Bao attempted to get information about these applications through the discovery process but was unsuccessful due to Mr. Wang’s lack of cooperation. Mr. Bao followed up with the defendants’ then legal counsel but the documents were never produced. Mr. Bao did not pursue an application to compel production of these documents. Mr.

Bao argues I should infer from the fact that the defendants omitted the signature pages when producing these documents that they must have been submitted in his name with a forged signature. [ 54 ] However, Mr. Bao made a freedom of information request to New Brunswick and was advised that its immigration office had no documents with Mr. Bao named as a representative on a provincial nominee file. He did not make a request to the Quebec government. [ 55 ] While I accept that the defendants and Mr. Wang in particular were uncooperative and unresponsive in the discovery process, I am not satisfied that Mr.

Bao has shown on a balance of probabilities that Welltrend submitted applications to New Brunswick and Quebec using his name. While an inference might be drawn from the omission of the key pages in the defendants’ document production, the result of the freedom of information request suggests applications to at least New Brunswick did not use Mr. Bao’s name. I would therefore exclude any potential applications to Quebec or New Brunswick in assessing Welltrend’s profits if I were to accept that Welltrend should be disgorged of all profits as a remedy in this case.

I limit any damages to the Nova Scotia applications. Analysis Liability [ 56 ] Mr. Bao bases his claim on breach of contract, conspiracy to injure or unlawful means conspiracy, fraud, and unjust enrichment. I will briefly dispose of the claims based on conspiracy, fraud, and unjust enrichment and focus on the breach of contract claim as well as another potential basis for the claim. [ 57 ] In my view, claims based on conspiracy are not made out for the simple reason that there is no evidence that two or more of the defendants agreed with one another to do something unlawful or to otherwise harm Mr. Bao.

The agreement of two or more persons is an essential element of the tort of conspiracy. The evidence here shows that someone at Welltrend Beijing forged Mr. Bao’s signature on a number of immigration applications but there is no evidence that there was an agreement between two or more of the defendants to do so. A wrongful act was undoubtedly done in the name of Welltrend Beijing but the essential requirement of an agreement between two or more of the defendants to commit that act has not been proven. [ 58 ] Nor has it been proven that the documents were forged with the intent to injure Mr. Bao.

If anything, the injury is to the Government of Nova Scotia who accepted applications and paid commissions on the belief that the applications were submitted by a

lawyer qualified to practice law in Canada. Injury may also have been done to unsuccessful applicants to the extent that the applicationswere not properly prepared by Welltrend Beijing which is not legally qualified to submit the applications. [59] Arguably, Mr. Bao could have suffered some injury to his reputation if the applications to which his name was attached werepoorly prepared. However, there is no evidence of any such injury and, in my view, it is too remote to fall within a tort of conspiracy toinjure Mr. Bao. [60] I also find that Mr.

Bao’s claims based in fraud cannot succeed since he was not the target of any fraud. Rather, it was the NovaScotia Government and possibly Immigration Canada that was fraudulently led to believe that Mr. Bao had signed the applications as arepresentative. [61] I also find that the claim of unjust enrichment does not help Mr. Bao. Unjust enrichment requires an enrichment by thedefendant, a corresponding deprivation on the part of the plaintiff, and the absence of a juristic reason for the enrichment: Moore v.Sweet, 2018 SCC 52 at para. 37. Welltrend Beijing has certainly been enriched by the use of Mr.

Bao’s signature but Mr. Bao has notsuffered a deprivation. He and Welltrend reached no agreement on Mr. Bao providing services for Welltrend clients applying toprovincial nominee programs and thus Mr. Bao had no entitlement or expectation to be remunerated for such applications. As stated inMoore at para. 43: [43] … Even if a defendant’s retention of a benefit can be said to be unjust, a plaintiff has no right to recover against that defendant[in unjust enrichment] if he or she suffered no loss at all, or suffered a loss wholly unrelated to the defendant’s gain. [62] However, I am persuaded that Mr.

Bao has established a breach of contract. His agreement with Welltrend Beijing was limited toapplications made directly to Immigration Canada and did not extend to any provincial program. It goes without saying that the contractdoes not permit Welltrend to forge Mr. Bao’s signature on any application, be it one to Immigration Canada and certainly not on one fora provincial program when Mr. Bao specifically declined to provide services for those types of applications because Welltrend did notwant to pay the fee he demanded. I find it is an implied term of the contract that Welltrend Beijing would not forge Mr.

Bao’s signatureon any document and certainly not the provincial nominee applications. [63] I therefore find that Welltrend Beijing has breached its contract with Mr. Bao by attaching his name and forging his signature onthe Nova Scotia applications without his knowledge or consent in breach of the implied term. [64] If I am wrong in finding a breach of contract, I would have found liability based on the tort of misappropriation of personalitywhich seeks to protect a party’s proprietary right to commercially exploit that party’s personality: Konstan v. Berkovits, 2023 ONSC 497at para. 343.

The limited jurisprudence in Canada has generally confined this tort to cases where the plaintiff has some celebrity statusthat was misappropriated without their consent for some financial benefit of the defendant (such as an apparent product endorsement):Konstan at para. 343; Gould Estate v. Stoddart Publishing Co., 30 O.R. (3d) 520, (Ont. S.C.J.).

However, in Hay v.Platinum Equities Inc., 2012 ABQB 204 at paras. 66-73, Justice Brooker extended the tort to a non-celebrity plaintiff in circumstancessimilar to the present one. [65] In that case, the defendant had prepared certain accounting reports (“RERs”) in the plaintiff’s name without the plaintiff’sknowledge or consent. The defendant falsely stated the plaintiff to be the author of the reports, forged his signature on them, andsubmitted them to a bank in the course of its business with the bank.

Justice Brooker found the defendant was liable to the plaintiff inmisappropriation of personality for falsely passing off the reports as being written by the plaintiff. He wrote: [73] Applying these principles to the case at hand, I find that despite the lack of “celebrity” of the plaintiffs, the tort of appropriationof personality has been made out. A professional’s name and reputation is entitled to be protected from unauthorized commercialexploitation every bit as much as a celebrity’s name and likeness.

Here, Hay, through his professional corporation, practiced as andenjoyed the reputation and cachet of a chartered accountant. He charged fees for providing RERs and his professional reputation (andliability) was at stake when he signed RERs.

Platinum used the forged RERs in the plaintiffs name, for its own commercial advantage inthat it knew it required RERs prepared by a charter accountant to submit to the bank in support of its loan application for the real estateventure it wished to pursue. [66] There are strong parallels between Hay and the present case and, in my view, Hay provides authority for applying the tort ofmisappropriation of personality to these circumstances. I would do so if I am wrong about a breach of contract. [67] Mr.

Bao did not plead or argue misappropriation of personality and thus an amendment to his notice of civil claim would benecessary if this was the sole ground of liability. If it were necessary, I would grant him leave to amend the notice of civil claim on thebasis that the defendants could not have suffered any prejudice by the amendment given that they did not appear at trial and the factualbasis to support this claim has been pleaded.

However, since I have based my conclusion on breach of contract, which was pleaded, anamendment is not necessary. [68] As breach of contract is the basis on which I find liability, the claims against the remaining defendants, including WelltrendCanada must be dismissed. Mr. Bao’s contract was with Welltrend Beijing. It is not known who falsified Mr. Bao’s name on theimmigration application documents but that person did so on behalf of Welltrend Beijing thereby causing the breach of contract. SinceMr. Bao’s contract is with Welltrend Beijing, that is the only party that can be liable for the breach. Mr.

Bao has not pleaded or made anysubmissions that Welltrend Beijing’s corporate veil can be pierced to impose personal liability on any of the individually-nameddefendants. [69] Even if misappropriation of personality was the basis for liability, the evidence establishes only that it was committed byWelltrend Beijing. It is not established against any of the other defendants and thus the action would have been dismissed against thoseother defendants if misappropriation of personality had been the basis for liability. [70] Having found that Welltrend Beijing breached its contract with Mr.

Bao by falsifying his signature on the Nova Scotiaapplications, I turn to the appropriate remedy for that breach.

Remedy [ 71 ] As noted, Mr. Bao seeks the disgorgement of all Welltrend Beijing’s profits earned from making the applications to the Nova Scotia program, including the fees paid by its clients and the commissions paid or payable by Nova Scotia. There is no evidence of Welltrend Beijing’s expenses, largely because the defendants elected not to participate in this trial. However, there are obviously some expenses such as staff salaries and overhead such that the $50,000 client fee (assuming that amount is correct) plus the $20,000 commission could not constitute pure profit for Welltrend Beijing.

Without the defendants’ participation, however, it is impossible to determine what the actual profit is from each application. Legal Principles [ 72 ] The basic rule of damages for breach of contract at common law is that the wronged party is to be placed in the same situation, so far as money can do so, as if the contract had been performed: Bank of America Canada v. Mutual Trust Co ., 2002 SCC 43 at paras. 25-27 , citing Robinson v. Harman (1848), 1 Exch. Rep. 850 at 855. [ 73 ] In this case, however, the ordinary approach to assessing damages for breach of contract yields no meaningful remedy for Mr.

Bao, other than perhaps nominal damages. That is because Mr. Bao has not suffered a loss that he expected to obtain from his contract with Welltrend Beijing. Since he did not authorize the use of his name as an immigration representative for the applicants to the Nova Scotia program, he would never have been in the situation to receive compensation for those applications. Thus, this is a case where an approach other than the ordinary approach to damages for breach of contract is called for. [ 74 ] In Atlantic Lottery Corp. Inc. v.

Babstock , 2020 SCC 19 , the Supreme Court of Canada discussed when the remedy of disgorgement is available for breach of contract. Speaking for the majority, Justice Brown said disgorgement is a rare and extraordinary remedy for a breach of contract that will only arise in exceptional cases where more conventional remedies such as damages, specific performance, or an injunction, are inadequate.

Inadequacy, said Brown J. at para. 59, arises where “the nature of the claimant’s interest is such that it cannot be vindicated by other forms of relief.” [ 75 ] To illustrate the type of cases where disgorgement might be appropriate, Brown J. explored several authorities from Canada and the United Kingdom where “gain-based recovery in breach of contract” had been awarded: Babstock para. 57 . In doing so, he quoted from a decision of the Supreme Court of the United Kingdom in Morris-Garner and another v. One Step (Support) Ltd. , [2018] UKSC 20 which considered “negotiating damages”.

Negotiating damages were described as a hypothetical amount of money that a plaintiff might have accepted to relieve the defendant from performing an obligation under an agreement. While that is not the nature of the damages sought here or in Babstock , Justice Brown used Morris-Garner to illustrate the nature of “gain-based recovery” as a remedy.

At para. 57 of Babstock, Brown J. quoted from para 95 of Morris-Garner as follows: Negotiating damages can be awarded for breach of contract where the loss suffered by the claimant is appropriately measured by reference to the economic value of the right which has been breached, considered as an asset. [...] The rationale is that the claimant has in substance been deprived of a valuable asset, and his loss can therefore be measured by determining the economic value of the right in question, considered as an asset.

The defendant has taken something for nothing, for which the claimant was entitled to require payment. [Underlining is Brown J.’s. Bold emphasis is mine.] [ 76 ] The notion of calculating a gain-based remedy with reference to the economic value of the right that has been breached has its roots in earlier English cases, including one that was relied upon by the British Columbia Court of Appeal in Smith v. Landstar Properties Inc ., 2011 BCCA 44 , which was also cited by Brown J. in Babstock at para. 57 . [ 77 ] At issue in Smith was how to calculate contractual damages arising from a loan agreement.

The plaintiff loaned the defendant $100,000 with interest to be calculated at 8% per annum. The term of the agreement required the defendant to secure the loan against real property. As it turned out, the defendant never did secure the loan and the plaintiff recalled the loan and commenced court proceedings. The defendant repaid the loan in full, including the interest, such that the plaintiff did not suffer a financial loss from the transaction.

However, the failure to secure the loan against the real property was still a breach of the agreement and, although the plaintiff had suffered no loss, the Court of Appeal found the plaintiff was still entitled to damages for that breach. It measured those damages based on the difference in interest rate that would likely have been charged for an unsecured loan versus a secured loan. [ 78 ] In reaching that conclusion, Chief Justice Finch, writing for the court, placed considerable reliance on the England and Wales Court of Appeal’s decision in Experience Hendrix LLC v. PPX Enterprises Inc. , [2003] EWCA Civ 323.

In that case, PPX Enterprises had an agreement with the estate of Jimi Hendrix over the copyright of some of his earlier recordings before he became an established artist. The agreement allowed PPX to use its copyright by paying royalties to the estate for licensing of some of the recordings but prohibited it from licensing other recordings. Contrary to the agreement, PPX granted licenses for recordings it was prohibited from licensing.

The estate suffered no financial loss from the unlawful licensing of these recordings and, in fact, its counsel conceded at the opening of the case that it would not be possible to show or quantify any such financial loss: Experience Hendrix LLC at para. 14. [ 79 ] Despite this, Lord Justice Mance for the court determined that the damages should be awarded and assessed by reference to the royalties that might hypothetically have been demanded by the Jimi Hendrix estate in exchange for its agreement to grant licenses on the recordings.

The court stated at para. 26: … the law gives effect to the instinctive reaction that, whether or not the appellant would have been better off if the wrong had not been committed, the wrongdoer ought not to gain an advantage for free, and should make some reasonable recompense. In such a context it is natural to pay regard to any profit made by the wrongdoer … The law can in such cases act either by ordering payment over a percentage of any profit or, in some cases, by taking the cost which the wrongdoer would have had to incur to obtain (if feasible) equivalent benefit from another source.

[ 80 ] In that case, the court confined the remedy to an order that PPX pay a reasonable sum as might reasonably have been demanded by Jimi Hendrix’s estate as a quid pro quo for the use of the recordings in breach of its agreement with the estate: Experience Hendrix LLC, para. 45. [ 81 ] There are two notable points that arise from Experience Hendrix LLC . First, the court declined to award a full disgorgement of all the profits that PPX earned from the unlawful use of the recordings.

Rather, as would later be stated in Morris-Garner, it assessed the damages based on the economic value of the right that had been breached. [ 82 ] Second, the evidence in Experience Hendrix LLC was that under no circumstances would the estate have permitted PPX to license the recordings. Further, PPX’s breach of contract was deliberate in that it knew it had no right to licence those recordings.

Thus, through the payment of damages assessed based on what the estate could reasonably have demanded as compensation, PPX was essentially given retroactive permission do that which it was otherwise prohibited from doing under its agreement with the estate and what the estate never would have authorized. (I note, though, that an injunction ordered by the trial judge prohibited further future licensing of those recordings.) [ 83 ] Lord Justice Mance ultimately did not regard the case “as exceptional to the point where the Court should order a full account of all profits which have been or may be made by PPX by its breaches”: Experience Hendrix LLC at para. 44.

The remedy (apart from the injunction) was confined to an order that “PPX pay a reasonable sum for its use of material in breach of the agreement”: Experience Hendrix LLC at para. 45. In Morris-Garner , Lord Reed for the Supreme Court of the United Kingdom suggested that this approach is consistent with an “orthodox” approach to remedies for breach of contract. [ 84 ] One further case that bears mentioning is Attorney General v. Blake , [2001] UKHL 45 which Brown J. discussed at some length in Babstock . In that case, a former British spy, George Blake, defected to the Soviet Union where he became an agent.

He was later apprehended by the U.K. and imprisoned but he escaped prison and fled back to Moscow where he wrote a tell-all book about his time as a British spy. By the time he wrote the book, the information was no longer confidential and, since he was fired as a British spy, the court found he owed no fiduciary duty to the U.K. government. Thus, the U.K. was unable to prove a loss for his wrongdoing. However, disclosing the information, even though it was now declassified, breached a confidentiality term in his original employment contract with the U.K. government.

Despite the absence of a loss, the court found this to be an extraordinary case where disgorgement was appropriate. It ordered full disgorgement of all Blake’s profits from the book. [ 85 ] In Experience Hendrix LLC , Lord Justice Mance commented that Blake was exceptional in that it concerned the disclosure of information that had been state secrets and which Mr. Blake, as a secret agent for the state, was contractually bound not to disclose.

Lord Justice Mance at para. 29 stated that breaches of this nature caused “untold damage”. [ 86 ] Babstock emphasizes that disgorgement of profits is an extraordinary remedy that should be granted only in exceptional cases where more conventional remedies for breach of contract are unavailable.

In Morris-Garner , the court reviewed a long history of English cases (and one British Columbia case, Smith discussed above) concerning gain-based recovery for breach of contract and observed that in many of those cases an approach short of full disgorgement of profits provided a suitable remedy for breach of contract even where conventional contractual remedies were unsuitable.

Application to this Case Remedy for Breach of Contract [ 87 ] Based on my review of these authorities and the facts of this case, I find a full disgorgement of all the profits earned by Welltrend Beijing is disproportionate to the extent of its breach, despite the egregiousness of falsely identifying Mr. Bao as the authorized immigration representative and forging his signature on the applications. I reach this conclusion for several reasons. [ 88 ] First, to sanction Welltrend Beijing’s misconduct by disgorging a larger amount of its profit and putting that profit in Mr.

Bao’s hands is not in keeping with a principled approach to assessing damages for breach of contract. As stated in Morris-Garner , in a passage endorsed by Brown J. in Babstock at para. 57 , the damages should be “measured by reference to the economic value of the right which has been breached.” In my view, Welltrend Beijing’s misconduct in using Mr.

Bao’s name and forging his signature is an important factor to consider but at the end of the day, I find that the full disgorgement of all the revenue it earned from each application would not be proportionate to the economic value of the right that was breached or, for that matter, the manner in which that breach was effected. [ 89 ] Second, Mr. Bao did not find Welltrend Beijing’s conduct to be so abhorrent that he was unwilling to reach a compromise that would seek to give effect to the immigration applications that contained his forged signature.

He was prepared to accept a compromise in the form of the agreement Welltrend Beijing initially proposed but then abandoned. That agreement would have had Mr. Bao assume the role of the authorized immigration representative, even after his signature had been forged on the documents, and seek to give retroactive validity to the applications containing those forged signatures in exchange for a payment of the equivalent of about $200,000 CAD. The effect of the agreement, had it been signed, would have sought to legitimize these otherwise improper immigration applications. Mr.

Bao did not suggest that this resolution was distasteful to him. Rather, he said, Welltrend Beijing did not “honour the offer”. [ 90 ] In fairness to Mr. Bao, when this agreement was under discussion, the full extent of the applications containing his forged signature was not known. As it turned out, another 18 applications were later uncovered. The terms of the contemplated agreement included a provision for payment of $50,000 for any additional application that might be found containing Mr. Bao’s forged signature. In light of what was later discovered, if this agreement had been concluded, Mr.

Bao would have been entitled to substantial payments for the additional applications later uncovered. [ 91 ] Third, Mr. Bao himself engaged in a risky practice in providing services to Welltrend Beijing. He acknowledged that he routinely provided Welltrend Beijing with blank application forms for Immigration Canada which he had signed. Welltrend Beijing would then fill in the client information for each application. Mr. Bao maintained that once the forms were completed they were returned to him for review before being submitted. He suggested that this approach saved time in the application process.

However, I find this explanation

unpersuasive. If the completed forms were in fact returned to Mr. Bao for a final review, he could have signed them at that time ratherthan engage in the obviously risky and, indeed, questionable practice of signing blank forms in his capacity as a lawyer and permittingothers to fill in the contents of that form after he had signed it. [92] This does not excuse Welltrend Beijing for falsely identifying Mr. Bao as authorized immigration representative or forging hissignature on application forms. However, it does colour the extent of any harm Mr. Bao may have suffered by the improper use of hisname.

Although none of the impugned applications were signed in this manner, it should not be ignored that Mr. Bao’s actions likelycontributed to an atmosphere in which Welltrend felt more at ease with forging his signature on the Nova Scotia applications than itmight have otherwise. [93] Lastly, while I accept that the wrongful use of Mr. Bao’s name and the forging of his signature is a wrong done to Mr.

Bao, it isin fact a fraud that was perpetrated on the Government of Nova Scotia and ultimately the Government of Canada by causing thosegovernments to believe that the immigration applications had been submitted by a lawyer licensed to practice law in Canada. [94] In all these circumstances, it is my view that compensating Mr. Bao by fully disgorging Welltrend Beijing of the full amount offees it charged to its clients as well as the commissions it could have received from Nova Scotia for these applications isdisproportionate to the harm inflicted on Mr. Bao.

I therefore reject his submission that a remedy should be founded upon a fulldisgorgement of the profits. Instead I would assess a remedy based on a measure of the economic value of the right that has beenbreached. [95] What then is the economic value of the right that has been breached? In my view, there are several ways that reasonablecompensation might considered. [96] One approach is to assess the value based on what Mr. Bao was prepared to accept for providing his services to WelltrendBeijing for signing applications to provincial immigration programs. When Welltrend Beijing approached Mr.

Bao to provide theservices, he quoted a price of 3,000 Yuan per month for each province. In fairness, there were not many applications expected for thetwo provinces that were the subject of this quote whereas there was a larger number of applications made to Nova Scotia. [97] Another approach would be to look at what Welltrend Beijing was at least initially prepared to offer to resolve the wholesituation after it was discovered that it had forged Mr. Bao’s signature on some applications. It initially suggested paying Mr.

Bao theequivalent of $200,000 Canadian, although there were certain obligations that accompanied this including potentially financing a lawsuitagainst Nova Scotia if it refused to accept the explanation for why Mr. Bao’s name and signature have been falsified on the applicationforms. There was also the substantial $50,000 penalty for any additional forged documents that might be uncovered. As it turned out,another 18 such applications were discovered which might explain why Welltrend did not “honour its offer”, as Mr.

Bao put it. [98] A third approach to assessing the appropriate measure of damages is to consider the fact that the Nova Scotia government paysthe $20,000 commission to the authorized immigration representative identified on the application. It is not payable to an immigrationconsulting firm that is not registered with the Government of Canada. In other words, by inserting Mr. Bao’s name on the applicationforms, Welltrend Beijing essentially acknowledged that Mr. Bao was the person entitled to the commission and not Welltrend Beijing.Had it entered into some agreement with Mr.

Bao to obtain his consent to act as the immigration representative in his capacity as alawyer, it would likely have reached an arrangement with Mr. Bao to share that commission. Mr. Bao had already done manyapplications for Welltrend Beijing’s clients for considerably less money than the $20,000 commission that Nova Scotia wouldpotentially pay. [99] However, since Welltrend Beijing did not enter into any agreement with Mr.

Bao to this effect and simply used his name andcopied his signature without consent, it relinquished any ability to claim a share of the $20,000 commission that Nova Scotia would payto the authorized immigration representative. [100] In my view, this last approach is the appropriate way to measure damages in this case. I would therefore assess damages in anamount equivalent to the commissions that Nova Scotia paid to Welltrend Beijing for each of the accepted applications. It is likely thatMr.

Bao would have taken a lesser amount had a negotiated agreement being reached in advance, but I find that Welltrend Beijing gaveup any right to a share of the commission by falsely using Mr. Bao’s name on the application without Mr. Bao’s knowledge or consent. [101] As noted earlier, the evidence shows that Nova Scotia or its agent paid Welltrend Beijing the $20,000 commission on 20applications that had used Mr. Bao’s name. That totals $400,000. I therefore award Mr.

Bao damages in the amount of $400,000 forWelltrend’s breach of contract in using his name and signature without his consent on the applications to the Nova Scotia immigrationprogram. Had I based liability on misappropriation of personality, I would not have assessed damages to be any higher than this. Punitive Damages [102] I have considered whether an additional award of punitive damages is warranted in the circumstances. As stated in Whiten v.

PilotInsurance Co., 2002 SCC 18 at para. 36: [36] Punitive damages are awarded against a defendant in exceptional cases for “malicious, oppressive and high-handed” misconductthat “offends the court’s sense of decency”: Hill v. Church of Scientology of Toronto, (SCC), [1995] 2 S.C.R. 1130,at para. 196. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decentbehaviour.

Because their objective is to punish the defendant rather than compensate a plaintiff (whose just compensation will alreadyhave been assessed), punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment). [103] Punitive damages are awarded where the misconduct of the defendant is “so outrageous” that punitive damages are rationallyrequired to act as a deterrent: Whiten at para. 100. The award must serve a “rational purpose” and “represent a proportionate response tothe behaviour of defendants and the harm caused”: Whiten at para. 150.

The “rationality” test applies to both the question of whether anaward of punitive damages should be made and in determining the quantum of the award: Whiten at para. 101. Punitive damages are not

“at large” and an award of punitive damages is rational “if, but only if” compensatory damages do not adequately achieve the objectives of retribution, deterrence, and denunciation: Performance Industries Ltd. v. Sylvan Lake Golf & Tennis Club Ltd. , 2002 SCC 19 at para. 87 . [ 104 ] Welltrend Beijing’s conduct in falsely identifying Mr.

Bao as the authorized immigration representative on the Nova Scotia applications and forging his signature to those authorizations is certainly the kind of conduct that offends the court’s sense of decency. [ 105 ] Despite that, I have concluded that punitive damages are not appropriate in this case for the following reasons. [ 106 ] First, the amount of damages I have awarded for breach of contract is more than what Mr. Bao would likely have negotiated in order to act as the authorized immigration representative on these files.

The damages stem from the fact that Welltrend Beijing relinquished any right it had to receive a share of the commission payable to the authorized immigration consultant which Welltrend Beijing identified as Mr. Bao. This is more than the market value of the right infringed as Mr. Bao would have valued it when first asked if by Welltrend to provide legal services for provincial nominee programs. In my view, disgorging Welltrend Beijing of the full amount of this commission, which it otherwise would likely have shared with Mr.

Bao, achieves the objectives of retribution, denunciation, and deterrence. [ 107 ] Second, as I have observed above, Mr. Bao is not entirely innocent in this matter given that he signed numerous blank application forms which he gave to Welltrend Beijing to fill out. These are not the forms that were used in the breach in this case but it indicates that Mr. Bao’s own standard of conduct contributed to an environment in which Welltrend Beijing likely felt some ease in forging his signature. [ 108 ] I therefore make no award for punitive damages.

Conclusion [ 109 ] I find that Welltrend Beijing breached an implied term of its agreement with Mr. Bao by attaching his name to 25 applications to the Nova Scotia provincial nominee immigration program and forging his signatures on those applications. I assess the damages to Mr. Bao as being the amount of commissions that the Nova Scotia government paid Welltrend Beijing for these successful applications being $20,000 for each of 20 accepted applications containing Mr. Bao’s name as the authorized immigration representative and for which commissions were paid. I therefore award Mr.

Bao damages in the amount of $400,000. [ 110 ] Mr. Bao asked for an opportunity to address the issue of costs in relation to a settlement offer he made to Welltrend. He may provide written submissions not exceeding five pages plus a copy of any settlement offer on which he relies within 30 days of the date of this judgment. If he chooses not to make a submission on costs or does not do so within 30 days, he will be entitled to his costs for this proceeding against Welltrend Beijing assessed at scale B. “Kirchner J.”