In Bao v. Welltrend United Consulting Inc., 2025 BCCA 3, unscrupulous immigration consultants forged a lawyer’s signature on 20 applications to Nova Scotia’s Economic Provincial Nominee Program (NSNP).
A Beijing-based immigration firm, the defendant Welltrend, made an agreement with Bao, a Canadian lawyer (not the author), for the lawyer to represent the firm’s clients in visa applications made to the federal government of Canada. Only Canadian-licensed lawyers and immigration consultants are permitted to represent clients on immigration applications for pay.
The claim ultimately succeeded based on the doctrine of unjust enrichment. Bao had also argued that Welltrend and its BC affiliate, president and two shareholders had forged his signature on Welltrend’s clients’ NSNP applications.
Trial Decision
The trial judge found that Welltrend breached an implied term of its contract with Bao to not forge his signature on any document, especially not provincial immigration documents, awarding Bao $400,000 in damages, representing the $20,000 commission that Welltrend collected on 20 successful NSNP applications with Bao’s forged signature. The Nova Scotia government awards $20,000 to a representative for each successful applicant that the representative referred to the NSNP. The trial judge ruled that Welltrend was alternatively liable for the tort of misappropriation of personality. The trial judge dismissed the claims for other causes of action, the claims against the BC affiliate and individual defendants, and declined to award punitive damages.
Court of Appeal
Bao appealed the decision, alleging that the trial judge erred in dismissing the conspiracy and fraud claims against the individual defendants, and in refusing to award punitive damages. The appeal court upheld the $400,000 award on other grounds.
Fraudulent Misrepresentation
The appeal court dismissed the fraud claim, agreeing with the trial judge’s findings that there was no evidence of two or more persons conspiring to forge Bao’s signature. Welltrend’s fraudulent representation, in forging Bao’s signature, was to Nova Scotia, not to Bao.
Breach of Implied Contractual Term
The appeal court overturned the trial judge’s finding of breach of contract, and used the opportunity to set out the principles which apply to implied contracts:
- The term is based on custom or usage.
- The term legally results from a particular class or kind of contract.
- The term must be necessary to give efficacy to the contract or was so obvious, based on the intention of the parties, that it goes without saying.
The appeal court found that the contract between Bao and Welltrend did not require an implied term forbidding the forgery of provincial immigration documents in order to function.
Unjust Enrichment
The elements of unjust enrichment are:
- The defendant was enriched.
- The plaintiff suffered a corresponding deprivation.
- There was no juristic reason for the enrichment and corresponding deprivation.
The appeal court found that there was causal connection between Welltrend’s enrichment from the forged signatures and Bao’s loss of commission payments. Welltrend’s forgeries deprived Bao of the opportunity to enter into an agreement with Welltrend to provide services related to Nova Scotia immigration documents and collect a share of the commission payments, so there was a deprivation. The appeal court upheld the $400,000 award at trial, relying not on contract but instead on the doctrine of unjust enrichment.
The trial judge had ruled that while Welltrend was unjustly enriched by the forged signatures, Bao did not suffer a corresponding deprivation. The judge reasoned that Bao had no agreement with Welltrend to be paid for services related to provincial immigration applications; therefore, Welltrend was not unjustly enriched in relation to Bao’s claim.
The appeal court, citing Moore v. Sweet, 2018 SCC 52, held that the framework for unjust enrichment “is a flexible one that allows courts to identify circumstances where justice and fairness require one party to restore a benefit to another”, and that the element of corresponding deprivation should be interpreted more broadly as:
- The enrichment in question does not have to be, and is not limited to, one directly conferred by the plaintiff to the defendant, such as by an agreement for services related to provincial immigration applications.
- The plaintiff must simply demonstrate that there is some causal connection between their loss and the defendant’s gain.
Misappropriation of Personality
The appeal court found that Bao did not plead misappropriation of personality or raise it at trial, and so could not succeed on that basis, regardless of the tort’s availability in BC.
Misappropriation of personality is a common law tort that is not formally defined in Canada, but typically involves a defendant wrongfully using a plaintiff’s celebrity or professional status for some financial benefit.
The appeal court pointed out that the trial judge relied on cases from Ontario and Alberta, where there is no statutory cause of action for breach of privacy. It found that in British Columbia, the wrongful appropriation of someone’s personality for financial gain is likely already covered by section 3 of the Privacy Act, RSBC 1996, c. 373.
Punitive Damages
The trial judge awarded Bao the full $400,000 value of the Nova Scotia commissions that Welltrend wrongfully collected, and did not award punitive damages. The appeal court opined that it would have been preferable for the court to award Bao general damages representing the “market value” of his share of the commissions had an agreement existed between him and Welltrend, along with an award of punitive damages, for a total of $400,000. However, as the defendants did not challenge the quantum, the appeal court did not interfere with it.
Conclusion
This decision is interesting in three ways. The Court of Appeal:
- overturned the trial judge’s finding in contract, but reversed the trial judge’s dismissal of the plaintiff’s unjust enrichment and punitive damages claims, arriving at the same damages award as at trial. It is important to plead all applicable causes of action – a claim that is denied by a court may be saved by an alternate cause of action.
- confirmed that unjust enrichment is a flexible and equitable doctrine. The defendant’s conduct in forging the plaintiff Bao’s signatures deprived him of the opportunity to establish and benefit from a contractual link with Welltrend and benefit from that contract. Welltrend was enriched at Bao’s expense.
- found that a statutory cause of action exists for wrongful appropriation of personality. Such a claim is covered by section 3 of the BC Privacy Act. However, the court did not close the door on the future availability of the common law tort of misappropriation of personality in BC.
Link to decision: https://www.canlii.org/en/bc/bcca/doc/2025/2025bcca3/2025bcca3.html
