Citation: 2008 TCC 628
Date: 20081203
Dockets: 2008-462(EI)
2008-464(EI)
2008-466(EI)
BETWEEN:
KARL COICOU,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Archambault J.
[1]
Karl Coicou is
appealing from decisions made by the Minister of National Revenue
("the Minister") under the Employment Insurance Act
("the Act"). The Minister decided that Mr. Coicou was
not employed in insurable employment by the following three payors ("the
three payors") during the following relevant periods:
|
March 16, 2005, to August 27, 2005
|
Thermo Service Supérieur Inc.
|
|
February 1, 2006, to May 10, 2006
|
C.S.I. Mécanique du Bâtiment Inc.
|
|
July 4, 2006, to December 16, 2006
|
Chauffage Electroheat Inc.
|
[2]
The justification for
the Minister's decisions was his finding that Mr. Coicou did not hold insurable
employment under a contract of employment during the relevant periods because
the contracts were null in view of the fact that Mr. Coicou did not have a
work permit during those periods.
[3]
The Minister's decision
in Docket No. 2008-464(EI) (Thermo Service Supérieur Inc.) was based on
the following assumptions of fact:
(a) During the period
in issue, the Appellant worked for the Payor as a canvasser. (admitted)
(b) During that period, he accrued 608 hours
of work and earned a total of $10,223.39, as stated in the Record of Employment
issued by the Payor. (admitted)
(c) The Appellant is originally from Haiti. (admitted)
(d) He has been residing in Canada for
approximately 30 years. (admitted)
(e) The Appellant has a university education. (denied)
(f) He was admitted to Canada on humanitarian
grounds. (admitted)
(g) Upon his arrival in Canada, he requested
and obtained a work permit, which he renewed annually until 1991. (admitted)
(h) The Appellant did not renew his work
permit for the 16 years from 1991 to 2007. (admitted)
(i) The Appellant states that he did not
renew his work permit because his employers, including the Payor, did not ask to
see his work permit. (admitted)
(j) The Appellant did not apply for
employment insurance (EI) benefits during any of these years. (admitted)
(k) In 2006, he claimed EI benefits for the
first time. (admitted)
(l) The Appellant "forgot" that he
needed to have a work permit in order to be eligible for benefits. (denied)
(m) The Appellant thought that the amounts
withheld on account of EI and provincial and federal income tax were a
sufficient indicator of his eligibility for benefits. (admitted)
(n) During the period in issue, the Appellant
held no permit to work in Canada. (admitted)
(o) The Appellant had
access to information concerning the issuance of work permits and the means by
which to obtain them, and that information was available in a language in which
he is fluent, since he has a French‑language university education. (denied)
(p) The Appellant was familiar with the
procedures for renewing his work permit because he renewed it each year from
1988 to 1991. (denied)
(q) During all the years that he did not apply
for a renewal of his work permit, the permit cost $150 to $180 per year, and
the Appellant simply said that he did not have enough money for this type of
expenditure. (denied)
(r) The information obtained from Immigration
Canada in no way discloses that the Appellant is authorized to work in Canada
without a work permit. (no knowledge)
(s) Under the Civil Code of Québec, the
existence of a contract of employment is contingent on holding a valid work
permit. (question of law)
[4]
The assumptions of fact
in Mr. Coicou's other two appeals are substantially similar to those in Docket
No. 2008‑464(EI).
[5]
The only witnesses at
the hearing were Mr. Coicou and an officer from Citizenship and
Immigration Canada (CIC), formerly Immigration Canada. The CIC officer's
testimony provided a much clearer picture of the circumstances of Mr. Coicou's
presence in Canada. The officer stated that Mr. Coicou arrived in
Canada on August 2, 1977, under a one-year student visa. Mr. Coicou
says that he was 14 years old at the time. Being in Canada meant that he could
continue his secondary education. Mr. Coicou had come from New York to join
his parents, who had immigrated to Canada. His parents had been sponsored by
one of his brothers, who had immigrated to Canada and married a Canadian.
[6]
Mr. Coicou stayed
in Canada beyond the expiration of his student visa, thereby violating the Immigration
Act
("the Immigration Act, 1976"). Since Mr. Coicou was a
minor at the time, the Minister issued him a special permit authorizing him to
extend his stay in Canada. This permit was renewed twice, until
October 15, 1981.
[7]
According to the academic
record created by the Commission des écoles catholiques de Montréal, Mr. Coicou
completed his secondary studies at École secondaire professionnelle de
l'Ouest on January 22, 1982. His classes at the technical school included
sheet-metal mechanics, hydronics, electrotechnics, technical drawing and
mechanics (Exhibit A‑4).
[8]
Contrary to what is
stated in his EI benefit application dated March 28, 2007, (Exhibit A‑5),
Mr. Coicou is not a university graduate. He stopped studying when he
graduated from high school, and the first job that he got following his
graduation was with a company located near the Canadair plant in Ville
St-Laurent.
[9]
On May 5, 1983, Mr. Coicou
was ordered to leave Canada; the special Minister's permit had been revoked or
had not been renewed. It appears that this decision by Immigration Canada was
related to some trouble that Mr. Coicou had with the law. Mr. Coicou was
convicted of theft under $200 on May 11, 1983. He was later
convicted of mischief causing damage to public property (January 11, 1984)
and theft under $200 (March 21, 1985). A few days later, on
March 24, 1985, his claim for refugee status was denied.
[10]
Mr. Coicou got
married in 1986 and apparently had one child that year and another child the
following year.
[11]
Although he no longer
had the requisite legal status to be in Canada, Mr. Coicou obtained work
permits during the 1980s and 1990s. The first permit was issued to him for the
period from August 9, 1988, to August 8, 1989, the second
was issued for August 9, 1989, to August 8, 1990, and the
third was issued for June 1, 1990, to May 31, 1991.
According to the CIC officer, CIC provides foreigners applying for work permits
with an information kit that reminds them that they must obtain a work permit
in order to work in Canada and tells them how to fill out an application.
[12]
On November 11, 1992, Mr. Coicou
submitted an application for permanent residence based on humanitarian
considerations.
The Government of Canada began by issuing an order exempting Mr. Coicou from
the requirement to hold a visa to stay in Canada, the requirement to hold a
passport, and the requirement to meet the usual selection criteria.
These requirements apply to foreign nationals who have been residing in
Canada for a long time, who have a family here, and who have held jobs showing
a certain degree of integration into Canadian society. However, because of
his criminal record, Mr. Coicou's permanent residence application could
not be accepted unless he got a pardon from the National Parole Board. Mr. Coicou
was to become eligible for such a pardon on December 25, 2000.
[13]
On May 29, 2001, Mr. Coicou
was asked to react to new information that CIC had obtained. According to that
information, Mr. Coicou was potentially an inadmissible person. On
February 11, 2002, Mr. Coicou applied for a work permit (Exhibit I-2).
On March 11, 2002, CIC received an application to change conditions of
stay, signed by Mr. Coicou, for the purpose of becoming a permanent resident.
His address, as stated on the application, was 5200 Dudemaine, Apartment 419,
Montréal, Quebec H4J 1N8 (though it should be noted that the J resembles a T).
In an interview held on June 19, 2002, in connection with his
February 2002 work permit application, an immigration officer recommended
that he apply for a pardon as soon as possible so that his application for
permanent residence could be finalized.
[14]
In a letter dated June 21,
2002, sent to 5200 Dudemaine Street, Apartment 419, Montréal, Quebec H4T
1N8, an immigration
counsellor notified Mr. Coicou that CIC had been unable to contact him
with respect to his work permit application of February 11, 2002, and
told him that, in view of the circumstances, she had to refuse that application
(Exhibit I‑2). She wrote that if he wanted such a permit, he would
have to reapply and enclose a payment of $150 for the document. Mr. Coicou
does not recall applying for such a permit. He does not recall having received
the letter dated June 21, 2002, either. In fact, he does not recall
whether he lived on Dudemaine Street at that time. Upon being shown the 2002
permit renewal application, Mr. Coicou said [TRANSLATION] "I do not
want to lie" and recognized his signature. He said: [TRANSLATION] "Truthfully,
I do not recall signing it." He also said: [TRANSLATION] "Truthfully, if
I had known that the payment of $150 would have entitled me to a work permit, I
would have paid it." In his request for a local police record check
dated March 13, 2007, Mr. Coicou identified one of the addresses
where he had lived in the course of the past five years as 5200 "du Domaine"
Street, Apt. 419. He wrote that he lived there from September 1997 to
September 2003 (Exhibit A‑7). It is very likely that Mr.
Coicou confused "Dudemaine" for "du Domaine" when he filled
out that form. Since the civic address and apartment number are correct, and
since he entered the street as "Dudemaine" in his March 2002
application to change the conditions of his stay, it is very likely that he was
living on Dudemaine Street in June 2002 when the immigration officer tried
to reach him. However, owing to the mistake with the postal code, there is no
way to be sure that the letter of June 21, 2002, was delivered to
him.
[15]
On December 2, 2004, CIC
reminded Mr. Coicou that he has had the option, since
December 25, 2000, to ask the National Parole Board for a pardon, and
it requested that he kindly provide CIC with evidence of the making of such a
request. On March 31, 2005, the immigration officer reminded Mr. Coicou that
he had not acted on the request for evidence that he had applied for a pardon,
reminded him that he had been convicted of several criminal offences from 1983 to
1997, and declared him inadmissible to Canada under paragraph 36(2)(a)
of the IRPA (see Exhibit I‑1).
[16]
Although this new
declaration of inadmissibility was sent to him on March 31, 2005, there
were no enforcement measures because of Canada's moratorium on the expulsion of
Haitian nationals. The moratorium has been in effect since 2004.
[17]
To date, Mr. Coicou has
not filed a new application for permanent residence. However, he did apply for a
pardon on January 30, 2006 (Exhibit A‑7). He has not
yet obtained a decision from the National Parole Board. According to the CIC
officer, Mr. Coicou has no status that would enable him to live in Canada.
If he remains, it is due to the Canadian government's administrative
tolerance, which, in all likelihood, is due to the moratorium applicable to
people from Haiti.
[18]
Mr. Coicou applied for
EI benefits in 2006 because health problems prevented him from working. He
submitted a new application for a work permit and obtained one for the period
from June 1, 2007, to June 1, 2008.
[19]
In his testimony, Mr. Coicou
frequently repeated that he did not apply for a work permit during the relevant
periods because his potential employers, including the three payors, never
asked to see such a permit, and that if he had known that a permit was
necessary, he would have had no problem paying the $150. Mr. Coicou noted
that his income tax returns report all the income that he earned from the three
payors, and that he paid EI premiums.
[20]
The CIC officer also
confirmed that, in all likelihood, Mr. Coicou obtained his work permit
because such permits are issued almost automatically.
The parties' positions
The Respondent's position
[21]
Counsel for the
Minister made a clear and concise statement of the law governing the issues. She
noted that the relevant provision that must be interpreted here is paragraph 5(1)(a)
of the Act, which provides:
5(1) Subject to subsection (2), insurable
employment is
(a) employment in Canada by one or more
employers, under any express or implied contract of service or
apprenticeship, written or oral, whether the earnings of the employed person
are received from the employer or some other person and whether the earnings
are calculated by time or by the piece, or partly by time and partly by the
piece, or otherwise;
[Emphasis added.]
[22]
Since the Act does not
define the concept of a "contract of service", and since the concept
belongs to the field of property and civil rights, it must be analyzed from the
perspective of Quebec civil law because the contracts between Mr. Coicou
and the three payors were entered into in Quebec. Section 8.1 of the Interpretation Act
requires such an approach. It provides:
8.1 Both
the common law and the civil law are equally authoritative and recognized
sources of the law of property and civil rights in Canada and, unless otherwise
provided by law, if in interpreting an enactment it is necessary to refer to
a province’s rules, principles or concepts forming part of the law of
property and civil rights, reference must be made to the rules, principles
and concepts in force in the province at the time the enactment is being
applied.
[Emphasis added.]
[23]
Décary J.A. provided
the following analysis in 9041‑6868 Québec Inc. v. Canada
(Minister of National Revenue), 2005 FCA 334, [2005] F.C.J. No. 1720
(QL) (Tambeau), at paragraphs 5, 6 and 7:
5 Section 8.1 of the Interpretation
Act came into force on June 1, 2001. It codified the principle that
the private law of a province and a federal statute are complementary, which
had been recognized (see St-Hilaire, supra) but had not always been put
into practice. . . .
6 It is possible, and
in most cases even probable, that where contracts are similar they would be
characterized similarly, whether the civil law or common law rules are applied.
The exercise, however, is not a matter of comparative law, and the ultimate
objective is not to achieve a uniform result. On the contrary, the exercise, as
was in fact intended by the Parliament of Canada, is one of ensuring that the
approach taken by the court is the approach that applies in the applicable
system, and the ultimate objective is to preserve the integrity of each legal system.
On that point, what was said by Mr. Justice Mignault in Curly v. Latreille,
(1920) 60 S.C.R. 131, at page 177
applies as well now as it did then:
[TRANSLATION] It is sometimes
dangerous to go outside a legal system in search of precedents in another
system, based on the fact that the two systems contain similar rules, except,
of course, where one system has borrowed a rule from the other that was
previously foreign to it. Even when the rule is similar in the two systems,
it may be that it has not been understood or interpreted in the same way
in each of them, and because the legal interpretation — I am of course referring to
interpretation that is binding on us — is in fact part of the law that it
interprets, it may in fact happen that despite their apparent similarity, the
two rules are not at all identical.
I would therefore not base
the conclusions that I think must be adopted in this case on any precedent
taken from English law . . . (Emphasis added.)
7 In other words, it
is the Civil Code of Québec that determines what rules apply to a
contract entered into in Quebec. Those rules are found in, inter alia,
the provisions of the Code dealing with contracts in general (arts. 1377 C.C.Q.
et seq.) and the provisions dealing with the "contract of employment"
(arts. 2085 to 2097 C.C.Q.) and the "contract of enterprise or for
services" (arts. 2098 to 2129 C.C.Q.). Articles 1378, 1425, 1426,
2085, 2098 and 2099 C.C.Q. are of most relevance for the purposes of this case:
. . .
[Emphasis
added.]
[24]
Thus, the question of whether
there was a contract of employment between Mr. Coicou and the three payors
must be decided under the provisions of the Civil Code of Québec ("the
Civil Code" or "C.C.Q.").
[25]
In the instant case,
the relevant provisions of the Civil Code are as follows:
9. In the exercise of civil
rights, derogations may be made from those rules of this Code which supplement
intention, but not from those of public order.
1413. A contract whose object
is prohibited by law or contrary to public order is null.
1417. A contract is absolutely
null where the condition of formation sanctioned by
its nullity is necessary for the protection of the general interest.
1418. The absolute nullity of a
contract may be invoked by any person having a present and actual interest in
doing so; it is invoked by the court of its own motion.
A contract that is absolutely null may not be confirmed.
1419. A contract is relatively
null where the condition of formation sanctioned by
its nullity is necessary for the protection of an individual interest,
such as where the consent of the parties or of one of them is vitiated.
1420. The relative nullity of a
contract may be invoked only by the person in whose interest it is established
or by the other contracting party, provided he is acting in good faith and
sustains serious injury therefrom; it may not be invoked by the court of its
own motion.
A contract that is relatively null may be confirmed.
1422. A contract that is null
is deemed never to have existed.
In such a case, each party is bound to restore to the other the
prestations he has received.
[Emphasis added.]
[26]
The relevant provisions
of the IRPA and the Regulations are as follows:
Act
2(1) The definitions
in this subsection apply in this Act.
"foreign
national" means a person who is not a Canadian citizen or a permanent
resident, and includes a stateless person.
2(2) Unless otherwise
indicated, references in this Act to "this Act" include regulations
made under it.
30(1) A
foreign national may not work or study in Canada unless authorized to do
so under this Act.
30(2) Every minor child in Canada, other
than a child of a temporary resident not authorized to work or study, is
authorized to study at the pre-school, primary or secondary level.
41. A person is inadmissible
for failing to comply with this Act
(a) in the case
of a foreign national, through an act or omission which contravenes,
directly or indirectly, a provision of this Act; and
(b) in the case
of a permanent resident, through failing to comply with subsection 27(2) or
section 28.
44(1) An
officer who is of the opinion that a permanent resident or a foreign
national who is in Canada is inadmissible may prepare a report
setting out the relevant facts, which report shall be transmitted to the
Minister.
44(2) If the Minister is of the
opinion that the report is well-founded, the Minister may refer the report to
the Immigration Division for an admissibility hearing, except in the case of a
permanent resident who is inadmissible solely on the grounds that they have
failed to comply with the residency obligation under section 28 and except, in
the circumstances prescribed by the regulations, in the case of a foreign
national. In those cases, the Minister may make a removal order.
44(3) An
officer or the Immigration Division may impose any conditions, including the
payment of a deposit or the posting of a guarantee for compliance with the
conditions, that the officer or the Division considers necessary on a permanent
resident or a foreign national who is the subject of a report, an admissibility
hearing or, being in Canada, a removal order.
45. The Immigration Division, at
the conclusion of an admissibility hearing, shall make one of the following
decisions:
(a) recognize the right to enter
Canada of a Canadian citizen within the meaning of the Citizenship Act,
a person registered as an Indian under the Indian Act or a permanent
resident;
(b) grant permanent resident
status or temporary resident status to a foreign national if it is satisfied
that the foreign national meets the requirements of this Act;
(c) authorize a permanent resident
or a foreign national, with or without conditions, to enter Canada for further
examination; or
(d) make the applicable removal
order against a foreign national who has not been authorized to enter
Canada, if it is not satisfied that the foreign national is not inadmissible,
or against a foreign national who has been authorized to enter Canada or a
permanent resident, if it is satisfied that the foreign national or the
permanent resident is inadmissible.
124(1) Every
person commits an offence who
(a) contravenes a provision
of this Act for which a penalty is not specifically provided or fails to
comply with a condition or obligation imposed under this Act;
(b) escapes or attempts to
escape from lawful custody or detention under this Act; or
(c) employs a foreign
national in a capacity in which the foreign national is not authorized under
this Act to be employed.
124(2) For the purposes of paragraph (1)(c), a person who fails to
exercise due diligence to determine whether employment is authorized under this
Act is deemed to know that it is not authorized.
124(3) A person referred to in subsection 148(1) shall not be found guilty
of an offence under paragraph (1)(a) if it is established that they exercised
all due diligence to prevent the commission of the offence.
125. A person who commits
an offence under subsection 124(1) is liable
(a) on
conviction on indictment, to a fine of not more than $50,000 or to imprisonment
for a term of not more than two years, or to both; or
(b) on summary
conviction, to a fine of not more than $10,000 or to imprisonment for a term of
not more than six months, or to both.
Regulations
196. A
foreign national must not work in Canada unless authorized to do so by a
work permit or these Regulations.
209. A
work permit becomes invalid when it expires or when a removal order that is
made against the permit holder becomes enforceable.
[Emphasis added.]
[27]
Counsel for the
Respondent cited the decision of Judge Dumais of the Quebec Provincial Court in
Saravia v. 101482 Canada Inc., [1987] R.J.Q. 2658, where Mr. Saravia
claimed damages for unlawful dismissal by his employer. The alleged
employer brought a preliminary motion under article 75.1 of the Code of
Civil Procedure to dismiss the action in damages. The motion was allowed on
the ground that the employment contract was illegal. In coming to this
conclusion, Judge Dumais gave effect to the prohibition contained in the Immigration
Act, 1976, and, in particular, subsection 18(1) of the Immigration
Regulations, 1978, provisions which, during the relevant periods, were
substantially similar in scope to section 30 of the IRPA and section 196
of the Regulations thereunder. At page 2659, Judge Dumais wrote:
Furthermore, the actual Immigration
Act, 1976 does not clearly state that a contract of employment with an
illegal immigrant is in itself illegal: the penalty is a fine or imprisonment
(sec. 99 of the said Act).
But, contends attorney for Petitioner,
section 984 C.C. prevented the contract of employment of Respondent from being
legal, as it clearly was "contrary to public order" (sec. 990 C.C.
and 13 C.C.).
Of course, it is accepted by this Court
that the Immigration Act, 1976 is of "public order", and
cannot be modified by a contract between private parties, nor can it be
overlooked by the Court.
The Supreme Court of Canada found that
the Architects' Act of Quebec is a statute of public order, and voided a
contract made in breach of said Act:
Cette loi est non seulement une loi d'ordre
public, mais elle est aussi une loi prohibitive comportant une pénalité. Il n'est
pas nécessaire, je crois, de faire une longue dissertation pour démontrer qu'en
principe les lois de ce genre emportent nullité quoiqu'elle n'y soit pas
prononcée. [Translation:
The Act is not only one of public order, it is also a prohibitory statute
containing a penalty. I see no need for a lengthy dissertation to
demonstrate the principle that statutes of this kind result in nullity
even if nullity has not been ordered.]
…
I would in any event be of opinion that a
statute of the character here in question is one of public order importing
nullity in all contracts made in breach of it.
More recently, the
Honourable Louis Doiron, J.C.S., found illegal and null a contract of
employment contravening the decree under the Loi sur les relations du
travail dans l'industrie de la construction, stating with both doctrinal
and jurisprudential arguments:
La sanction s'attachant à la violation d'une
loi d'ordre public est la nullité absolue. [Translation: The sanction for violating a statute of
public order is absolute nullity.]
This Court cannot find otherwise: the Immigration
Act, 1976 is a statute of public order, and a contract, knowingly or
not, made in breach of one or many of its sections will be void and null. Such
is the sanction clearly written in sections 13 and 14 of our Civil Code.
[Emphasis added.]
[28]
In his reasons, Judge Dumais
referred not only to the provisions of the former Immigration Act, 1976,
but, also, to the provisions of the Civil Code of Lower Canada
("the former Code"). The rule stated in article 13 of the former Code
is essentially restated in article 9 of the new Civil Code, and the rules in
articles 984 and 990 can be found in articles 1413 and 1417 of the new Civil
Code.
[29]
Counsel for the
Respondent also cited my decision in Isidore v. Canada (Minister of National
Revenue - M.N.R.), [1997] T.C.J. No. 463 (QL), where
I came to the following conclusion at paragraph 15:
15 I therefore
conclude, as Judge Dumais did in Saravia, that the Immigration Act
is a statute of public order and that it is for the protection of the
general interest. It is aimed at regulating who may come into and remain
in Canada. In particular, Canadian citizens and permanent residents
(except in certain circumstances) have the right to come into and
remain in Canada. The objectives set out in s. 3 of the Immigration
Act make it clear that public order is one of the objectives sought by this
Act. I consider that s. 18 of the Immigration Regulations, 1978 gives
Canadian authorities one of the tools they must have in order to maintain
public order in Canada.
[Emphasis added.]
[30]
Deputy
Judge Charron, of this Court, rendered a decision similar to Saravia
in Mia v. Canada (Minister of National Revenue - M.N.R.),
[2001] T.C.J. No. 199 (QL).
At paragraphs 12, 13, 17 and 18, he wrote:
12 In the instant case, the
appellant knew or ought to have known that he needed a valid and
subsisting employment authorization to engage and continue in employment in
Canada. As in Polat v. M.N.R. (December 4, 1997, A-31-97
(F.C.A.) and March 17, 1998, 96-402(UI) (T.C.C.)), the appellant had already
obtained an employment authorization in the past. The fact that he obtained
an initial employment authorization is significant because it indicates that
he knew that when it expired he would have to obtain a new one before
engaging or continuing in employment. Moreover, he admitted that he neglected
to obtain another authorization during the period at issue.
13 In addition, the respondent
argued that, under Quebec civil law, the question of good faith or bad faith is
not relevant in determining whether a contract of employment
prohibited by statute is null in the context of unemployment insurance
proceedings. In Still, supra, the Federal Court of Appeal issued the
following caution: "we cannot lose sight of the fact that cases
originating from Quebec are to be decided under the illegality provisions found
within the Civil Code of Québec."
. . .
17 The Immigration Act is a statute
of public order that seeks to protect the general interest. It is aimed at
regulating who may come into and remain in Canada.
18 Thus, under the civil law in
force in Quebec, a contract of employment entered into, whether in good
faith or in bad faith, by a person who is not a Canadian citizen or permanent
resident and who does not have a valid employment authorization is null and
void (Saad v. M.N.R., July 9, 1997, 96‑1719(UI) (T.C.C.), and Kante
v. M.N.R., May 23, 1997, 94-1056(UI) and 95‑1153(UI) (T.C.C.)).
[Emphasis added.]
[31]
In the alternative,
assuming that the common law must prevail in the instant appeal, counsel for
the Respondent submits that Mr. Coicou was not in good faith because he
knew that he needed to obtain a work permit in order to be able to work, and he
did not obtain one. She cites the decision of Judge Mogan in Polat v. Canada
(Minister of National Revenue – M.N.R.), [1998] T.C.J. No. 316 (QL).
At paragraph 16 of his decision, Judge Mogan wrote:
16 In
conclusion, I find that the Appellant's circumstances are different from those
of Kathleen Still. She was not only acting in good faith but had a
document from Immigration Canada which encouraged her to believe that she
had the right to seek and take employment. The Appellant had no such
document. He was not engaged in employment in the first two years of his being
in Canada from the spring of 1992 until July 1994, subject to any employment he
might have had on his student authorization from August 1993 to February 1994. The
fact that he had that student authorization and any employment he might
have had thereunder ought to have alerted him to the fact that when the
authorization came to an end, he needed a further work permit before taking on
additional employment.
[Emphasis added.]
Mr. Coicou's position
[32]
Mr. Coicou placed
a great deal of emphasis on the fact that he would have obtained a work permit
if he had paid $150. Mr. Coicou is not in Canada clandestinely. CIC knew
that he was on Canadian soil. However, the only reason that he was not removed
from Canada was the moratorium that has been in place since 2004. Relying
on the common law approach adopted in Still, his counsel submits that
there could be no nullity under Mr. Coicou's circumstances. He also tried to
minimize the scope of the decision in Saravia, arguing that the decision
was on a motion to dismiss, prior to a hearing on the merits.
[33]
Counsel for the
Appellant submits as follows. Mr. Coicou's contract with the three payors was a
legal contract. The prohibition in section 196 of the Regulations is a
mere formality and the sanction must be regulatory. Public order is not at
stake where a $150 payment almost automatically yields a work permit. The
general interest is not being protected. In support of these submissions,
he cites Pierre‑Gabriel Jobin and Nathalie Vézina, Les Obligations,
6th ed. (Yvon Blais), particularly paragraph 168, which
addresses the issue of nullity as a sanction for violations of public order:
[TRANSLATION]
F. Sanctions for violations of public order
168 − Types of nullity −
In the classical scholarly writing and the old line of cases, the sanction for
a violation of public order by juridical act is absolute nullity.184
However, the law with respect to this question has evolved considerably. First
of all, if the law expressly forbids a certain contract from being entered
into, the contract will be null.185 But if the law merely
prohibits a certain activity or factual situation on pain of penal or
administrative sanction, the situation is less clear: in our opinion, a contract
that violates such a restriction should not be annulled when the
legislator's objective in enacting the provision in question does not
require it; it is better to opt for a less draconian sanction (such as a
reduction of price) or perhaps not to impose any contractual sanction (and to allow
the situation to be governed solely by the penal law).186
Consequently, the rule that prohibitory laws result in nullity187 is
now applied in a qualified and limited manner. This approach keeps the interference
with commerce and industry to the necessary minimum.
. . .
184. Such as articles 1411, 1413, 1417, 1783 (officers of
justice incapable of acquiring litigious rights) 1823 (universal gifts inter
vivos prohibited) and 1824 C.C.Q. (formalities for gifts inter
vivos).
185. Supra note 145. For example, see Pauzé v.
Gauvin, [1954] S.C.R. 16.
186. In this regard, see Girard v. Véronneau, [1979] R.P.
237; [1980] C.A. 534; case comment by T. Rousseau‑Houle, (1981) 41 R.
du B. 134; Belgo‑Fisher (Canada) Inc. v. Lindsay, [1988]
R.J.Q. 1231 (C.A.); Pomerleau v. 2319‑8419 Québec Inc.,
[1989] R.J.Q. 137 (S.C.); Robert Vigneux et Fils Inc. v. Therrien,
[1994] R.D.I. 616 (C.S.); Dolomex Inc. v. Dercon Construction Canada Inc.,
[2002] R.D.I. 183, REJB 2002‑29590 (C.A.); Dépanneur Kildare Enr. v.
Elge Financialease Inc., J.E. 98‑2085, REJB 1998‑08539
(C.A.); Roch Lessard Inc. v. Immobilière S.H.Q., [2003] R.J.Q. 3119,
REJB 2003‑48960 (S.C.). P.‑G. Jobin, "Les effets du droit
pénal ou administratif sur le contrat : où s'arrêtera l'ordre
public ?" (1985) 45 R. du B. 655.
187. Interpretation Act, R.S.Q., c. I‑16, section 41.3.
[34]
Counsel for Mr. Coicou
further submits that work was not the object of the contract. He submits that section
196 of the Regulations seeks to subject employment to the obtaining of a work
permit — an administrative modality. In his
submission, the rule set out in article 1413 C.C.Q. is intended for clear-cut
cases, such as where the object of the contract is contraband or homicide.
Analysis
[35]
I agree with the
statement of law provided by counsel for the Respondent.
[36]
In my opinion, Mr. Coicou
is wrong in seeking to apply the approach adopted by the common law courts and,
in particular, the approach adopted by the Federal Court of Appeal in Still,
to the facts of the instant appeals.
[37]
In Still,
Robertson J.A. wrote, at paragraph 45: ". . . I
believe that the Federal Court should strive to promote consistency in
decision making with respect to entitlement to unemployment insurance
benefits." (Emphasis added.) In my opinion, the principle of consistency
that was applied in 1997 is no longer valid in view of the coming into force of
section 8.1 of the Interpretation Act in June 2001, and I
should add that this was recognized by Décary J.A. in Tambeau. However,
the following remarks by Robertson J.A. at paragraph 44 of the decision in
Still are in keeping with the intent of section 8.1 of the Interpretation
Act: "Given the bijuridical nature of the Federal Court, we
cannot lose sight of the fact that cases originating from Quebec are to be
decided under the illegality provisions found within the Civil Code of
Québec."
[38]
Moreover, the important
differences between common law and Quebec civil law show that Mignault J. was
correct when he stated that it is dangerous to go outside a legal system in
search of precedents in another system (Curly, quoted in Tambeau and
reproduced above). One such difference can be seen from the following comments
made by Robertson J.A. in Still, at paragraph 46:
46 Professor Waddams suggests that where
a statute prohibits the formation of a contract the courts should be free to
decide the consequences (at page 372). I agree. If legislatures do not
wish to spell out in detail the contractual consequences flowing from a breach
of a statutory prohibition, and are content to impose only a penalty or
administrative sanction, then it is entirely within a court's jurisdiction
to determine, in effect, whether other sanctions should be imposed. As
the doctrine of illegality is not a creature of statute, but of judicial
creation, it is incumbent on the present judiciary to ensure that its
premises accord with contemporary values. . . .
[Emphasis added.]
[39]
In Quebec, unlike the
common law provinces, the primary source of law is the Civil Code; elsewhere in
Canada, the common law, developed by the courts, is the primary source of law. In Quebec, the
National Assembly has spelled out "the contractual consequences flowing
from a breach of a statutory prohibition". Thus, contrary to the practice
in the other, common law, provinces, a court that is applying a Quebec statute
cannot adopt a doctrine of illegality that is different from the one adopted by
the Quebec legislator.
[40]
Under article 1413 C.C.Q,
a contract whose object is prohibited by law or contrary to public order is
null. In the treatise Les Obligations, supra, the authors, at page
391, paragraph 368, define the object of a contract as [TRANSLATION] "the main
legal transaction that the parties were thinking about, and on which their
minds met." In the instant case, it is clear that the object of the
contracts between Mr. Coicou and the three payors was the provision of
work under the control of a person in exchange for remuneration — in other words, "work in Canada".
[41]
Section 30 of the IRPA
and section 196 of the Regulations state that a foreign national must not
work in Canada unless authorized to do so by a work permit or by the
Regulations. Thus, the object of the agreement between Mr. Coicou and the three
payors is prohibited by law, and, as was held in the decisions cited by counsel
for the Respondent, it must also be considered contrary to public order.
[42]
The statutory rules
concerning the nullity of contracts differ depending on whether the nullity is absolute
or relative. A contract that is relatively null may be confirmed, as stated in
the second paragraph of article 1420 C.C.Q. Moreover, the first paragraph of
that article states that such nullity may be invoked only by the person in
whose interest it is established or by the other contracting party, provided he
is acting in good faith and sustains serious injury therefrom. It may not be
invoked by the court of its own motion.
[43]
However, if a contract is
absolutely null, article 1418 C.C.Q. states that it cannot be confirmed. Such
nullity may be invoked by any person having a present and actual interest. Moreover,
"it is invoked by the court of its own motion." As stated in articles
1417 and 1419, the sanction of absolute nullity is necessary for the protection
of the general interest, whereas relative nullity is necessary for the
protection of an individual interest.
[44]
In order to decide
whether the sanction of absolute nullity or relative nullity must be applied in
the instant case, we must determine whether the sanction is necessary to
protect individual interests or the general interest. The prohibition
contained in section 30 of the IRPA and section 196 of the
Regulations does not seek to protect individual interests. Indeed, one cannot
see how the requirement of a work permit protects a worker or his or her
employer. Rather, it is detrimental to the worker, because it requires the
worker to obtain a work permit in order to be able to work, and to incur costs,
amounting in this instance to $150. Canadian citizens and permanent residents
are not subject to such constraints. Thus, in fact, the IRPA seeks to
protect the general interest, notably by regulating the presence of foreigners
on Canadian soil, as can be seen from paragraphs 3(1)(h) and 3(2)(g)
of the legislation. The purpose of those paragraphs is to protect the health of
Canadians and to guarantee their safety in immigration and refugee matters. In
my opinion, the following remarks by Gonthier J. in Fortin v. Chrétien,
[2001] S.C.R. 500, at paragraph 23, are very much relevant
here: "In view of the imperatives associated with protection of the
public to which the Act respecting the Barreau du Québec
responds . . . the provisions of that Act relating to the
performance of exclusive acts could only have been enacted for the purpose
of protecting the general interest." (Emphasis added.) Where a
condition of contract formation is necessary to protect the general interest,
the sanction is absolute nullity. Thus, all the conditions for the application
of articles 1413, 1417 and 1418 C.C.Q. are met in the instant case.
Work by foreign nationals in Canada is both prohibited by law and contrary
to public order unless a worker has obtained a work permit. The sanction
in such a case is absolute nullity, because it is necessary for the protection
of the general interest, and absolute nullity can be invoked by any person who
has a present and actual interest. In my opinion, the Respondent has such an
interest here. Moreover, the court must invoke this nullity of its own motion.
Consequently, the contract between Mr. Coicou and each of the three payors
is deemed never to have existed, as stated in article 1422 C.C.Q.
[45]
Although this sanction might
appear excessive or disproportionate in relation to the consequences of
working in Canada without a work permit (which Mr. Coicou could easily
have obtained) it is not within the courts' power to amend the Civil Code in
order to adopt a scheme of sanctions different from the one enacted by the
legislator. It is clear that the courts in common law provinces have the
necessary latitude to adopt fairer sanctions, for there, contrary to the
situation in Quebec, the doctrine of illegality is a creature of the
judiciary, not a creature of the legislator. Since the provisions of the Civil
Code clearly set out the consequences that stem from the absence of one of the
essential conditions for the existence of a contract, that is to say, an object
that is neither prohibited by law nor contrary to public order, this Court has
no choice but to find that the sanction decided by the legislator, namely the
nullity of the contract, must apply.
[46]
In any event, even if
the doctrine of illegality adopted by the common law provinces, notably in Still,
had been applicable here, I would not have hesitated to find that Mr. Coicou
cannot benefit from the good faith exception to the nullity of contracts,
developed as part of this doctrine. Here, contrary to the situation in Still, Mr.
Coicou is not a foreign national who believed, in good faith, that he could
work in Canada without a work permit. He was very much aware that a work permit
was required in order to work in Canada. He has been living here for roughly
30 years. He violated our immigration legislation by failing to obtain an
extension of his student visa in the early 1980's. From 1988 to 1991, he
obtained and renewed Canadian work permits several times.
[47]
As the CIC officer
noted, his Department provides work permit applicants with an information kit
which states the reason that foreign nationals require a work permit. Mr. Coicou
even submitted a new application for a work permit in 2002. Even if the letter
of June 21, 2002, could not be delivered to Mr. Coicou, it discusses an
interview that took place on June 19, 2002. Mr. Coicou was
negligent in his belief that he could get by without a work permit because the
three employers were not asking him for his work permit.
[48]
For all these reasons,
Mr. Coicou's appeal is dismissed.
Signed at Ottawa, Canada, this 3rd day of December
2008.
"Pierre Archambault"
Translation
certified true
on this 13th day
of January 2009.
Brian McCordick,
Translator
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