Basyal v Mac's Convenience Stores Inc, 2019 BCCA 276 (CanLII)

This is a contract, employment, and class action case concerning breach of contract and breach of fiduciary duty.

Mac's Convenience Stores Inc was having difficulties finding Canadian workers to fill positions in their western region stores. The company met with Overseas Consulting to meet its needs. The Plaintiffs were citizens of foreign countries living overseas when they came into contact with Overseas Consulting. The Plaintiffs alleged that for a fee they would be gauranteed a job in Canada. They accepted and signed an employment contract, but the promised employemnt failed to manifest.

In 2018, the Supreme Court of British Columbia certified the Plaintiffs class action. The Plaintiffs made two groups of allegations: (1) relating to alleged breaches of employment contracts by Mac's Convenience Stores for failing to provide work in the quantity promised; and (2) relating to a conspiracy theory between the Defendants to commit illegal acts. The first group of claims is related to the Plaintiffs' arguments that Mac's Convenience Stores failed to provide the quantity of work they were promised under their contract and they moved to Canada to take up with the company. The second group of claims is based in the Plaintiffs' arguments that they received illegal recruitment fees from the Defendants resutling in causes of action in unjust enrichment, breaches of fiduciary duties, and waiver of tort.

Later in 2018, the British Columbia Court of Appeal allowed the defendant's appeal of the chambers judge's certification order under the Class Proceedings Act. The Court allowed direct breach of contract claims to proceed if an appropriate subclass of plaintiffs could be defined. The Certification was confirmed against Overseas Consulting, but not against Mac's Convenience Stores, for breach of fiduciary duty. The Plaintiffs failed to plead the necessary material facts for their causes of action in conspiracy and unjust enrichment. The actions in conspiracy and unjust enrichment are were therefore stayed.

In 2019, the British Columbia Court of Appeal added to their original reasons in response to the plaintiffs Second Further Amended Notice of Civil Claim. The Court held that the allegations made against Mac's Convenience Stores in respect of breach of contract and breach of the duty of honest performance of contract remain standing. Causes of action against Mac's Convenience Stores in unjust enrichment and breach of fiduciary duty have not been pleaded. There are sufficient allegations to now plead an agency on the part of the Overseas Consulting Defendants with Mac's Convenience Stores as their principal. If such a case was pleaded, Mac's Convenience Stores would not become a fiduciary, but may be responsible as a principal for damages for breaches of fiduciary duty by its agents.