-7 201\. In the Supreme Court of British Columbia

Transcription

1 No.... Vancouver Registry \. In the Supreme Court of British Columbia Between HERMINIA VERGARA DOMINGUEZ Plaintiff And NORTHLAND PROPERTIES CORPORATION doing business as DENNY'S RESTAURANTS, and DENCAN RESTAURANTS INC. Defendants NOTICE OF CIVIL CLAIM "Brought under the Class Proceedings Acf' This action has been started by the plaintiff(s) for the relief set out in Part 2 below. If you intend to respond to this action, you or your lawyer must (a) file a response to civil claim in Form 2 in the above-named registry of this court within the time for response to civil claim described below, and (b) serve a copy of the filed response to civil claim on the plaintiff. If you intend to make a counterclaim, you or your lawyer must (a) (b) file a response to civil claim in Form 2 and a counterclaim in Form 3 in the above-named registry of this court within the time for response to civil claim described below, and serve a copy of the filed response to civil claim and counterclaim on the plaintiff and on any new parties named in the counterclaim. JUDGMENT MAY BE PRONOUNCED AGAINST YOU IF YOU FAIL to file the response to civil claim within the time for response to civil claim described below. 1

2 Time for response to civil claim A response to civil claim must be filed and served on the plaintiff(s), (a) if you reside anywhere in Canada, within 21 days after the, date pn which a copy of the filed notice of civil claim was served on you,.: "' \.. (b) if you reside in the United States of America, within 35 days after the date on which a copy of the filed notice of civil claim was served on you, (c) if you reside elsewhere, within 49 days after the date on which a copy of the filed notice of civil claim was served on you, or (d) if the time for response to civil claim has been set by order of the court, within that time. CLAIM OF THE PLAINTIFF Part 1: STATEMENT OF FACTS Introduction 1. The Plaintiff brings this employment related class action on behalf of a class of over 50 Filipino foreign workers who came to Canada under the Temporary Foreign Worker Program and were employed mainly as cooks and servers for the Defendants in Denny's restaurants in British Columbia from December 1, 2006 to the present. 2. Acting through their agents, the Defendants recruited members of the class to work in their Denny's restaurants. The Defendants entered into employment contracts with members of the class regarding wages, hours of work, overtime and other working conditions. 3. The employment contracts further provided that the members of the class would not have to pay any cost~ related to their round trip air travel between the Philippines and Canada or any costs associated with their recruitment for work with the Defendants, including costs to any third party recruiters. 4. In reliance upon and in consideration of these binding terms, the class members left their homes and spent considerable money and effort to travel to British Columbia to work for the Defendants. 5. During the course of the class members' employment, the Defendants failed to provide as much work as promised, failed to pay overtime as promised, and failed 2

3 to reimburse members of the class for expenses incurred on behalf of the Defendants, including recruitment and travel costs. 6. On behalf of herself, and other similarly situated foreign workers employed by the Defendants, the Representative Plaintiff seeks restitution of unpaid wages, an award of general, aggravated, and punitive damages and declaratory relief both to make themselves whole for damages suffered due to the Defendants violations of law, and to ensure the Defendants will not subject them and other temporary foreign workers to mistreatment in the future. Parties 7. The Plaintiff, Herminia Vergara Dominguez ("Ms. Dominguez") is a citizen of the Philippines and currently resides with her husband at 663 West 71 st Avenue, in the City of Vancouver, British Columbia. 8. The Defendants, Northland Properties Corporation doing business as Denny's Restaurants, and Dencan Restaurants Inc. ("Defendants"), are companies incorporated under the laws of British Columbia and both having their registered office and head office at West Broadway, Vancouver, British Columbia. 9. Northland Properties Corporation is the parent company of Sandman Hotels, Inns & Suites; Denny's 24 Hour Restaurant; Moxie's Classic Grill; Shark Club Bar & Grill; and Northland Asset Management Company. 10. The Defendants are 100% privately owned. Facts 11. At some point, known only to the Defendants and their agents, the Defendants entered into an agreement with the International Caregiver Employment Agency ("ICEA") and/or Luzern International Manpower Services Corporation ("Luzern"), or a combination of both, wherein the Defendants authorized ICEA and/or Luzern to act as their agents to recruit workers from the Philippines to work in the Defendants' Denny's restaurants in British Columbia. 12. In or about August, 2008 Ms. Dominguez, who was then in the Philippines, had her resume delivered to ICEA in an effort to secure employment at a Denny's restaurant in British Columbia. 3

4 ''' 13. On or about August 30, 2008, an employment contract between the Defendants and Ms. Domingez was signed by Angel Chan, District Manager of the Defendant Dencan Restaurants Inc. (the "Employment Contract"). The Employment Contract provided, among other things, the following terms: 1. That Ms. Dominguez shall work 40 hours per week and receive overtime at 50 per cent more than the regular wages for any additional hours. n. That the Defendants shall not recoup from Ms. Dominguez, through payroll deductions or any other means, any costs incurred in recruiting or retaining her. These costs include, but are not limited to, any amounts payable to a third-party recruiter The Defendants agree to assume the cost of two-way air transportation for Ms. Dominguez between the Philippines and Canada and that such costs are not recoverable by the Defendants. 1v. The Defendants are obliged to abide by the standards set out in the relevant provincial labour standards act and, in particular, they must abide by those standards with respect to how wages are paid, and how overtime is calculated. Any terms of the contract of employment less favourable to Ms. Dominguez than the standards stipulated in the relevant labour standards act is null and void. 14. At all material times, ICEA and Luzem were agents of the Defendants, and by virtue of this position were vested with the express, implied or apparent authority to arrange or facilitate Ms. Dominguez's employment with the Defendants on behalf of the Defendants. 15. Prior to Ms. Dominguez signing the Employment Contract and at the request of the Defendants' agent ICEA, specifically Ms. Ruby Orense, Ms. Dominguez was required to pay the Defendants' agent ICEA $3, Ms. Dominguez's husband, Mr. Christopher Dominguez, paid the $3, on Ms. Dominguez's behalf via his debit card to the Defendants' agent ICEA. 17. Ms. Dominguez's payment of $3, to the Defendants' agent was for the purpose of, among other things, the following: 1. offsetting the Defendants' costs incurred in recruiting or retaining her; 4

5 11. paying the Defendants' for employing her; 111. paying the Defendants' agent ICEA for obtaining employment for her with the Defendants; and/or 1v. paying the Defendants' agent ICEA for providing information to her about employment with the Defendants. 18. On or about October 8, 2008 Ms. Dominguez signed the Employment Contract while still in the Philippines. 19. After Ms. Dominguez had paid the $3, and had signed the Employment Contract, the Defendants and/or their agents proceeded to apply for a Labour Market Opinion ("LMO") from Human Resources and Skills Development Canada ("HRSDC") with respect to Ms. Dominguez. 20. The Defendants and/or their agents would not have applied for an LMO with respect to Ms. Dominguez if she had not provided them with the $3, payment. 21. The Defendants were required to provide written authorization to HRSDC in order for its agent ICEA and/or Luzern to submit an application for an LMO on behalf of the Defendants with respect to the Temporary Foreign Worker Program ("TFWP"). 22. An approved LMO from HRSDC was required for Ms. Dominguez to obtain a work permit under the TFWP from Citizenship and Immigration Canada. 23. At some point after October 8, 2008 and prior to January 2009, the Defendants' LMO application with respect to Ms. Dominguez was approved by HRSDC. 24. With the LMO application approved, Ms. Dominguez was able to apply for and did apply for a Canadian work permit ("Work Permit"). 25. After the Defendants' LMO application with respect to Ms. Dominguez was approved, Ms. Dominguez was required by the Defendant's agent ICEA to pay an additional $2, to the Defendants' agent ICEA. 26. On or about January 21, 2009 Ms. Dominguez's brother, Jhonas Vergara, provided a cheque in the amount of$2, to the Defendants' agent ICEA on Ms. Dominguez's behalf. 27. Ms. Dominguez's additional payment of$2, to the Defendants' agent was for the purpose of, among other things, the following: 5

6 1. offsetting the Defendants' costs incurred in recruiting or retaining her; 11. paying the Defendants' for employing her; 111. paying the Defendants' agent ICEA for obtaining employment for her with the Defendants; and/or IV. paying the Defendants' agent ICEA for providing information to her about employment with the Defendants. 28. On or about January 26, 2009, Ms. Dominguez received her Work Permit which stated that she was employed by Northland Properties Corporation doing business as Denny's Restaurants as a food and beverage server in Vancouver. 29. The conditions on Ms. Dominguez's Work Permit included, among other things, the following: 1. Not authorized to work in any occupation other than stated. 2. Not authorized to work for any employer other than stated. 3. Not authorized to work in any location other than stated. 30. The terms and conditions of the Employment Contract induced Ms. Dominguez to travel from her home in the Philippines, leaving her two young children in the care of her mother, and spend considerable money and effort to travel to Canada to work for the Defendants. 31. On or about January 26, 2009, Ms. Dominguez travelled to Canada by air in order to commence work with the Defendants in Vancouver. Ms. Domingez was required to pay her own airfare to travel from Manila, Philippines to Vancouver, British Columbia. 32. The Defendants did not reimburse Ms. Dominguez for the cost of her airfare from Manila, Philippines to Vancouver, British Columbia at that time or at any other time since. 33. Ms. Dominguez commenced her employment with the Defendants in or about Feqruary The Defendants did not reimburse Ms. Dominguez the $5, she paid to the Defendants' agent ICEA. 6

7 35. Ms. Dominguez has occasionally worked in excess of 40 hours in a week in the course of her employment with the Defendants. She has not been paid overtime for that work as required under the terms of the Employment Contract. 36. The Defendants have frequently failed to provide Ms. Dominguez with the 40 hours per week of work stipulated by her Employment Contract, although she has been ready, willing and able to work those hours. When Ms. Dominguez has worked less than 40 hours per week, she has only been paid for the hours she has worked, rather than for the hours provided in the Employment Contract. 37. Ms. Dominguez's Employment Contract and Work Permit are due to expire on Januaty 25, The Defendants have made no arrangements to pay for her travel to retum to the Philippines as required under the terms of the Employment Contract. The Class 3 8. Ms. Dominguez brings this action on her own behalf and on behalf of the following class of persons: All current and former employees of the Defendants in British Columbia who carne to Canada through the Temporary Foreign Worker Program on and after December 1, ("Class" or "Class Members") 39. At all material times the Defendants used a standard form employment contract, provided as an employment contract from HRSDC as a template, both for Ms. Dominguez and all Class Members. Therefore, Ms. Dominguez and all Class Members had the same employment contracts with virtually identical terms. 40. At all material times, ICEA and Luzem were agents ofthe Defendants, and by virtue of this position were vested with the express, implied or apparent authority to facilitate and/or arrange the Class Members' employment with the Defendants on behalf of the Defendants. 41. At all material times the Defendants, acting on their own behalf or through their agents, made binding promises regarding wages, hours of work and working conditions in the form of contracts of employment. In reliance upon and in consideration for these binding promises, the Class Members left their homes, families and spent considerable money and effort to travel to Canada to work for the Defendants. 7

8 42. The Class Members claim that they have each paid approximately $6, ("Employment Fees") to the Defendants' agents ICEA and/or Luzem for the purpose of, among other things, the following: 1. offsetting the Defendants costs incurred in recruiting or retaining each of the Class Members; ii. paying the Defendants' for employing each of the Class Members; 111. paying the Defendants' agent ICEA and/or Luzem for obtaining employment for each of the Class Members with the Defendants; and/or 1v. paying the Defendants' agent ICEA and/or Luzem for providing information to each of the Class Members about employment with the Defendants. 43. The Class Members claim that they have each paid their own airfare in travelling to Canada for the purpose of working for the Defendants. 44. Some Class Members claim that they have also paid their own airfare in travelling back to their country of origin. 45. The Class Members are readily ascertainable by a review of the Defendants' records and are in excess of 50 people. Part 2: RELIEF SOUGHT 46. Ms. Dominguez and the Class Members claim against the Defendants, and each Defendant, joint and several liability for the following relief: 1. an order pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50 certifying this action as a class proceeding and appointing Ms. Dominguez as the representative plaintiff of the Class; 11. an interim, interlocutory and final mandatory order directing the Defendants to publicize a Notice under the Class Proceedings Act, R.S.B.C. 1996, c. 50 and otherwise disseminate a communication at the Defendants' expense, with the approval of the Court, that properly explains that: 8

9 a. the Class Members are automatically entitled to be included in this action, if certified as a class proceeding, unless they opt-out; and b. the Class Members may participate and testify in this action without fear of retaliation and being threatened by the Defendants to not exercise their legal rights; 111. an interim, interlocutory and final mandatory order directing the Defendants to refrain from communicating with the Class Members regarding this proceeding except on consent of Plaintiffs counsel, or otherwise with approval of the Court; IV. an interim, interlocutory and final mandatory order directing the Defendants to refrain from engaging in acts of retaliation of any kind against the Plaintiff or any Class Member for participating in this action; v. an order pursuant to the Class Proceedings Act, R.S.B.C. 1996, c. 50, directing an aggregate assessment of damages; v1. general damages for the Class in a sum as this Honourable Court deems just; v11. aggravated damages for the Class in a sum as this Honourable Court deems just. The facts on which Ms. Dominguez and the Class Members rely in support of this claim are as follows: a. the Defendants have used their power over the Class Members to promote the Defendants' interests in the employment relationship in a manner that conflicted with the Defendants' duty of good faith and fair dealing and/or the Defendants' overriding fiduciary duty not to take advantage of the Class Members' vulnerability; b. the Defendants taking advantage of the Class Members' vulnerability has caused humiliation, anxiety, damage to self-confidence or selfesteem, and caused loss of dignity to the Class Members. vm. $9 million in punitive damages for the Class, or such other sum as this Honourable Court deems just, for the Defendants' outrageous and malicious conduct including but not limited to the following: a. the Defendants have used their power over the Class Members to promote the Defendants' 9

10 interests in the employment relationship in a manner that conflicted with the Defendants' duty of good faith and fair dealing and/or the Defendants' overriding fiduciary duty not to take advantage of the Class Members' vulnerability; b. the Defendants, through their agent Deborah Gagnon, Vice President Operations, Denny's of Canada and Vice President Dencan Restaurants Inc., terminated the employment of Class Member Alfredo Sales as a consequence of his inquiries into the payment of his outstanding overtime and his request for the Defendants' to pay the cost of his two way air transportation between the Philippines and Vancouver, B.C.. Alfredo Sales' termination had the purpose of and the effect of intimidating and threatening the Class Members into not participating in furtherance of their legal rights; c. the Defend~ts, through their agent Angel Chan, former District Manager, Dencan Restaurants Inc., threatened to send Class Member Maria Genalyn Reyes home to the Philippines prior to the termination date of her employment contract if she accepted a position with Wendy's at the end of her employment contract instead of renewing her employment contract with the Defendants; and d. the Defendants on their own behalf or through their agents attempted to advise and coach Class Members not to cooperate with a 2010 British Columbia Employment Standards Branch investigation concerning the conditions of employment ofthe Class Members with the Defendants. In particular, the Defendants on their own behalf or through their agents attempted to advise and coach Class Members to tell the British Columbia Employment Standards Branch that the Class Members did not pay Employment Fees. 1x. an order that the damages be paid by the Defendants into a common fund and distributed to the Class Members in an appropriate manner as directed by the Court. In the alternative, an order that the Defendant identify each Class Member from 10

11 its records and pay into a fund for distribution to each Class Member the average amount of the following without the need for any specific claim by each Class Member: a. the difference between the Class Members actual hours of work per week and the promised 40 hours per week that the Class Members were and are entitled to work under their contracts of employment; b. the unpaid overtime hours worked by the Class Members; c. the Class Members payment of Employment Fees; and d. the cost of two-way air transportation for the Class Members between the Philippines and British Columbia. x. the costs of the administration of the proceeding, including the administration of the plan of distribution for the recovery in this action in a sum as this Honourable Court deems appropriate; x1. a declaration that the Defendants have breached the express or implied terms of its contracts of employment with the Class Members; xn. a declaration that the Defendants owe a fiduciary duty to the Class Members, and that the Defendants have breached this fiduciary duty; xn1. a declaration that the Defendants owe to the Class Members a duty to act in good faith and fair dealing, and that the Defendants have breached this obligation in the performance of its employment relationship with the Class Members; x1v. a declaration that the Defendants have been unjustly enriched to the deprivation of the Class Members; xv. costs; xv1. interest pursuant to the Court Order Interest Act, R.S.B.C. 1996,c. 79;and xvn. such further and other relief as to this Honourable Court may seem just. 11

12 Part 3: LEGAL BASIS 47. Ms. Dominguez and the Class Members claim against the Defendants, and each Defendant, joint and several liability for all claims set out below. Breach Of Contract 48. The Defendants have breached the express and/or implied terms of its contracts of employment with Ms. Dominguez and the Class Members in the following ways: i. failing to provide Ms. Dominguez and the Class Members with 40 hours of work per week as explicitly required by the Employment Contract and contracts of employment; 11. failing to take active measures to ensure that Ms. Dominguez and the Class Members be provided with 40 hours of work per week; 111. failing to pay the difference between Ms. Dominguez's and the Class Members' actual hours of work per week and the 40 hours per week that Ms. Dominguez and the Class Members were and are entitled to work under their contracts of employment; iv. failing to pay Ms. Dominguez and the Class Members for work performed in excess of 40 hours per week or 8 hours per day ("Overtime"); v. failing to take active measures to ensure that Overtime work of Ms. Dominguez and the Class Members was properly recorded and properly compensated; VL VIL the Defendants, in an express breach of its Employment Contract with Ms. Dominguez and contracts of employment with the Class Members, have recouped from Ms. Dominguez and the Class Members through payroll deductions or any other means the Defendants' costs incurred in recruiting and retaining them. It is an implied term in the Employment Contract and contracts of employment with the Class Members that the Defendants would adhere to HRSDC policy and guidelines for hiring foreign workers and that the Defendants would cover all 12

13 recruitment costs related to the hiring of Ms. Dominguez and the Class Members. The Defendants have breached this implied term. vn1. the Defendants on their own behalf or through their agents ICEA and/or Luzern, in breach of its contracts of employment with Ms. Dominguez and the Class Members, have received Employment Fees which the Defendants were prohibited from receiving either expressly or implicitly under the Employment Contract and contracts of employment with the Class Members. tx. Ms. Dominguez and the Class Members were required to pay the Employment Fees to the Defendants agents ICEA and/or Luzern as a condition of obtaining employment with the Defendants which is contrary to the express and implied terms of the Employment Contract and contracts of employment with the Class Members. x. Ms. Dominguez and the Class Members through their payment ofemployment Fees to the Defendants' agents ICEA and/or Luzern have effectively borne the Defendants' costs in recruiting and retaining Ms. Dominguez and the Class Members. The payment of Employment Fees by Ms. Dominguez and the Class Members is contrary to the express and implied terms of their contracts of employment. x1. failing to take active measures to ensure that Ms. Dominguez and the Class Members were not required or permitted to pay Employment Fees; xn. failing to assume the cost of two-way air transportation for Ms. Dominguez and the Class Members as expressly set out in the Employment Contract and contracts for employment; xm. It is an implied term in the Employment Contract and contracts of employment with the Class Members that the Defendants would adhere to HRSDC policy and guidelines for hiring foreign workers and pay the transportation costs for Ms. Dominguez and the Class Members to travel from their country to Canada and for the return trip back to their country. The Defendants have breached this implied term for all Class Members with respect to transportation costs to Canada and with respect to those Class Members who did not have their return trip paid for by the Defendants; and 13

14 XIV. failing to take active measures to ensure that the cost of twoway air transportation for Ms. Dominguez and the Class Members was paid for by the Defendants. Breach Of The Defendants' Fiduciary Duty 49. Ms. Dominguez claims that the Defendants owe a fiduciary duty to her and the Class Members and that fiduciary duty was breached. 50. The Defendants assumed certain fiduciary obligations, either express or implied through Ms. Dominguez's Employment Contract and the Class Members' contracts of employment and/or by virtue of the provisions of the TFWP, that the Defendants would act in the interest of Ms. Dominguez and the Class Members. 51. There is a power dependency relationship between the Defendants and Ms. Dominguez and the Class Members. The Defendants are in a position of power and influence relative to Ms. Dominguez and the Class Members, particulars of which are as follows: i. The continuing validity of Ms. Dominguez's and the Class Members' work permits depended upon Ms. Dominguez and the Class Members maintaining employment exclusively with the Defendants. n. Ms. Dominguez's and the Class Members' occupational and physical mobility were severely restricted under the terms of the TFWP. These requirements contributed significantly to their vulnerability and vested significant power in the hands of the Defendants The Defendants had and continue to have discretionary power to affect Ms. Dominguez's and the Class Members' legal and practical interests. 52. The Defendants have used their power over Ms. Dominguez and the Class Members to promote the Defendants' interests in the employment relationship in a manner that conflicted with the Defendants' overriding duty not to take advantage of Ms. Dominguez's and the Class Members' vulnerability in the following ways: 1. failing to provide Ms. Dominguez and the Class Members with 40 hours of work per week as explicitly required by the Employment Contract and contracts of employment; 14

15 n. failing to take active measures to ensure that Ms. Dominguez and the Class Members be provided with 40 hours of work per week; 111. failing to pay the difference between Ms. Dominguez's and the Class Members' actual hours of work per week and the 40 hours per week that Ms. Dominguez and the Class Members were and are entitled to work under their contracts of employment; IV. failing to pay Ms. Dominguez and the Class Members Overtime; v. failing to take active measures to ensure that Overtime work of Ms. Dominguez and the Class Members was properly recorded and properly compensated; VL recouping from Ms. Dominguez and the Class Members through payroll deductions or any other means the Defendants' costs incurred in recruiting and retaining them which the Defendants were prohibited from doing under the Employment Contract and contracts of employment; vn. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known the Defendants were prohibited from receiving either expressly or implicitly under the Employment Contract and contracts of employment with the Class Members; vm. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known the Defendants were prohibited from receiving as this was contrary to HRSDC policy and guidelines that the Defendant cover all recruitment costs related to the hiring of Ms. Dominguez and the Class Members; IX. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known were not in keeping with the intentions of the Memorandum of Understanding between The Ministry of Economic Development of the Government of British Columbia and The Department of Labour and Employment of the Government of the Republic of the Philippines ("MOU"), and in particular section 6 of the MOU which sets out the following: 15

16 The Participants intend that Employers shall pay the costs related to hiring Workers. Employers and Sending Agencies must not request, charge or receive, directly or indirectly, any payment from a person seeking employment in British Columbia which contravenes the British Columbia Employment Standards Act. (emphasis added) x. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known were contrary to Section 1 0(1) of the Employment Standards Act, R.S.B.C. 1996, c. 113 ("Employment Standards Act") as follows: No charge for hiring or providing information 10 (1) A person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for (a) employing or obtaining employment for the person seeking employment, or (b) providing information about employers seeking employees. XL failing to take active measures to ensure that Ms. Dominguez and the Class Members were not required or permitted to pay Employment Fees; xu. failing to assume the cost of two-way air transportation for Ms. Dominguez and the Class Members as expressly set out in the Employment Contract and contracts for employment; xm. failing to adhere to HRSDC policy and guidelines for hiring foreign workers and pay the transportation costs for Ms. Dominguez and the Class Members to travel from their country to Canada and for the return trip back to their country; and x1v. failing to take active measures to ensure that the cost of twoway air transportation for Ms. Dominguez and the Class Members was paid for by the Defendants. 16

17 Breach Of The Defendants' Duty Of Good Faith & Fair Dealing 53. Ms. Dominguez is claiming that the Defendants owe a duty of good faith and fair dealing in their employment relationship with her and the Class Members as a feature of the contractual relationship and not an independent cause of action. 54. Ms. Dominguez and the Class Members are in a position of vulnerability in relation to the Defendants. As a result, the Defendants owe a duty to Ms. Dominguez and the Class Members to act in good faith and fair dealing which includes honouring its contractual and statutory obligations to them. 55. The Defendants have breached its duty of good faith and fair dealing by, among other things: 1. failing to provide Ms. Dominguez and the Class Members with 40 hours of work per week as explicitly required by the Employment Contract and contracts of employment; 11. failing to take active measures to ensure that Ms. Dominguez and the Class Members be provided with 40 hours of work per week; 111. failing to pay the difference between Ms. Dominguez's and the Class Members' actual hours of work per week and the 40 hours per week that Ms. Dominguez and the Class Members were and are entitled to work under their contracts of employment; IV. failing to pay Ms. Dominguez and the Class Members Overtime; v. failing to take active measures to ensure that Overtime work of Ms. Dominguez and the Class Members was properly recorded and properly compensated; v1. recouping from Ms. Dominguez and the Class Members through payroll deductions or any other means the Defendants' costs incurred in recruiting and retaining them which the Defendants were prohibited from doing under the Employment Contract and contracts of employment; v11. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzem which the Defendants knew or ought to have known the Defendants were prohibited from receiving either expressly or 17

18 implicitly under the Employment Contract and contracts of employment with the Class Members; viii. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known the Defendants were prohibited from receiving as this was contrary to HRSDC policy and guidelines that the Defendant cover all recruitment costs related to the hiring of Ms. Dominguez and the Class Members; ix. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known were not in keeping with the intentions ofs. 6 ofthe MOU. x. receiving Employment Fees from Ms. Dominguez and the Class Members paid to the Defendants' agents ICEA and/or Luzern which the Defendants knew or ought to have known were contrary to s.lo(l) of the Employment Standards Act; x1. failing to take active measures to ensure that Ms. Dominguez and the Class Members were not required or permitted to pay Employment Fees; xu. failing to assume the cost of two-way air transportation for Ms. Dominguez and the Class Members as expressly set out in the Employment Contract and contracts for employment; xiii. failing to adhere to HRSDC policy and guidelines for hiring foreign workers and pay the transportation costs for Ms. Dominguez and the Class Members to travel from their country to Canada and for the return trip back to their country; and x1v. failing to take active measures to ensure that the cost of twoway air transportation for Ms. Dominguez and the Class Members was paid for by the Defendants. The Defendants' Have Been Unjustly Enriched 56. In the alternative, the Defendants have been unjustly enriched as a result of the following: 18

19 1. receiving the benefit of not having to pay Ms. Dominguez and the Class Members their requisite 40 hours of work per week; 11. receiving the benefit of the unpaid Overtime hours worked by Ms. Dominguez and the Class Members; 111. recouping from Ms. Dominguez and the Class Members through payroll deductions or any other means the Defendants' costs incurred in recruiting and retaining them; IV. receiving the benefit of Ms. Dominguez and the Class Members paying the Employment Fees; and v. receiving the benefit of not having paid the cost of two-way air transportation for Ms. Dominguez and the Class Members. 57. The precise value of the benefits listed above are not known to Ms. Dominguez or the Class Members but are within, or should be within, the exclusive knowledge of the Defendants. 58. Ms. Dominguez and the Class Members have suffered and continue to suffer deprivation, in the form of lost wages corresponding to the difference between their actual hours of work per week and the 40 hours per week that they were and are entitled to work under their contracts of employment. 59. Ms. Dominguez and the Class Members have suffered and continue to suffer deprivation, in the form of lost wages corresponding to the unpaid Overtime hours they worked. 60. Ms. Dominguez and the Class Members have suffered deprivation from the Defendants' recouping from Ms. Dominguez and the Class Members through payroll deductions or any other means the Defendants' costs incuited in recruiting and retaining them. 61. Ms. Dominguez and the Class Members have suffered deprivation through the payment of Employment Fees. 62. Ms. Dominguez and the Class Members have suffered deprivation by paying their own cost of either one-way or two-way air transportation to Canada. 63. There is no juristic reason why the Defendants should be permitted to retain the benefit of: 1. the difference between Ms. Dominguez's and the Class Members' actual hours of work per week and the 40 hours per week that Ms. Dominguez and the Class Members were and are entitled to work under their contracts of employment; 19

20 n. the unpaid Overtime hours worked by Ms. Dominguez and the Class Members; 111. recouping from Ms. Dominguez and the Class Members through payroll deductions or any other means the Defendants' costs incurred in recruiting and retaining them; iv. Ms. Dominguez and the Class Members payment of Employment Fees; and v. not having paid the cost of two-way air transportation for Ms. Dominguez and the Class Members. Plaintiffs address for service: Charles Gordon Fiorillo Glavin Gordon 2695 Granville Street, Suite 510 Vancouver, B.C. V6H3H4 Christopher J. Foy Kestrel Workplace Legal Counsel LLP 2695 Granville Street, Suite 206 Vancouver, B.C. V6H3H4 Fax number address for service: Fax number address for service: address for service: address for service: Place oftrial: Vancouver, B.C. The address ofthe registry is: Law Courts, 800 Smithe Street, Vancouver, B.C., V6Z 2El Date: January 7, 2011 Signature of Signature of Lawyer for Plaintiff Charles Gordon ~;;:,- 7 Lawyer for Plaintiff Christopher J. Foy 20

21 Rule 7-1 (1) ofthe Supreme Court Civil Rules states: (1) Unless all parties of record consent or the court otherwise orders, each party of record to an action must, within 35 days after the end of the pleading period, (b) (a) (i) (ii) prepare a list of documents in Form 22 that lists all documents that are or have been in the party's possession or control and that could, if available, be used by any party at trial to prove or disprove a material fact, and all other documents to which the party intends to refer at trial, and serve the list on all parties of record. APPENDIX Part 1: CONCISE SUMMARY OF NATURE OF CLAIM: This is a class action involving the Defendants' mistreatment of their employees who came to Canada through the Temporary Foreign Worker Program. Part 2: THIS CLAIM ARISES FROM THE FOLLOWING: A dispute concerning: [X] an employment relationship Part 3: THIS CLAIM INVOLVES [X] a class action Part 4: Class Proceedings Act, R.S.B.C. 1996, c

22 No. Vancouver Registry BETWEEN: SUPREME COURT OF BRITISH COLUMBIA HERMINIA VERGARA DOMINGUEZ AND: PLAINTIFF NORTHLAND PROPERTIES CORPORATION doing business as DENNY'S RESTAURANTS, and DENCAN RESTAURANTS INC. DEFENDANTS NOTICE OF CIVIL CLAIM "Brought under the Class Proceedings Acf' Fiorillo Glavin Gordon 2695 Granville Street, Suite 510 Vancouver, BC V6H 3H4 Telephone: (604) Facsimile: (604) Kestrel Workplace Legal Counsel LLP 2695 Granville Street, Suite 206 Vancouver, BC V6H 3H4 Telephone: (604) Facsimile: (604)