People who graduate from designated learning institutions are often eligible to apply for post-graduation work permits (“PGWP“). However, not all schools are eligible.
In addition to other requirements, to be eligible, a student must have graduated from a:
- public post-secondary school, such as a college, trade/technical school or university, or CEGEP in Quebec; or
- private post-secondary school that operates under the same rules as public schools (currently applies only to certain private post-secondary institutions in Quebec); or
- private secondary or post-secondary school (in Quebec) that offers qualifying programs of 900 hours or longer, leading to a diplôme d’études professionnelles (DEP) or an attestation de spécialisation professionnelle (ASP); or
- Canadian private school that can legally award degrees under provincial law (for example, Bachelors, Masters or Doctorate degree) but only if the student was enrolled in a study programs leading to a degree as authorized by the province.
There have been recent media stories about international graduates suing designated learning institutions for misleading them into thinking that they would have been eligible for post-graduate work permits once they graduated.
The requirements to establish a claim in negligent misrepresentation are:
- There must be a duty of care based on a “special relationship” between the representor and the representee;
- The representation in question must be untrue, inaccurate, or misleading;
- The representor must have acted negligently in making said misrepresentation;
- The representee must have relied in a reasonable manner, on said negligent misrepresentation; and
- The reliance must have been detrimental to the representee in that damages resulted.
The Nova Scotia case of Clarke v. Nova Scotia College of Early Childhood Education is an example of what the results of negligent misrepresentation claims involving PGWPs may be, and could serve as a guide to future litigants.
There, Anna-Kay and Peta-Gay, two sisters from Jamaica, sued the Nova Scotia College of Early Childhood Education (“NSCECE”) because NSCECE misrepresented to them that they would be eligible for PGWPs after graduating. Each had paid tuition and related costs in excess of $18,000.00 to study at NSCECE. In addition to being told by a recruiter that they would be eligible for a PGWP, the NSCECE handbook stated the following:
Working after graduation
Upon graduation, many students are eligible to work in Canada under the postgraduate work permit program. The application is online and the fee is $155.
To be eligible you:
- Must have studied full-time and completed a program that was a minimum of eight months in length
- Must have completed and passed the program of study and received a notification that you are eligible to obtain your diploma or certificate.
- Must have a valid study permit when you apply for the work permit.
Generally a work permit is issued for a period no longer than the length of your program of study. For more information and to determine your eligibility to work in Canada after your graduate from NSCECE, please visit: cic.gc.ca/english/study/work-postgrad-who.asp
NSSCEC tried to argue in court that because their handbook told students to refer to the Immigration, Refugees and Citizenship Canada website, that the students knew or ought to have known that this was the definitive source of advice or information as to what the students could expect.
The Court disagreed, stating that:
I have a great deal of difficulty with that argument. The school itself knew, or ought to have known, whether it was the type of institution that met the government’s criteria for postgraduate work permits. It was its business to know such a thing, and it ought to have known that it did not have a designation that would fully satisfy the immigration authorities. The application in 2014 to achieve a designation, which designation was ultimately unhelpful, shows that the Defendant had some appreciation of the fact that it needed to work on having the appropriate status. I did not hear evidence about when, historically, the Defendant first became aware that its students, or some of them, had been granted postgraduate work permits, but at the point that it became so aware it should have asked itself how or why that could be. Perhaps it was anatural reaction not to look a gift horse in the mouth by questioning the government as to why its students were being so favoured, contrary to the explicit terms of the immigration policies. But I believe that the Defendant’s legal duty was to have a much better understanding, which could then be passed on to existing and potential students. Based on what it actually knew, or ought to have known by 2015, at the latest, a correct statement in the student handbook would have said something to this effect (my words):
“Nova Scotia College of Early Childhood Education is not a designated institution, or otherwise one of the types of educational institutions Immigration Canada recognizes for purposes of postgraduate work permits. Even so, it appears that some of our graduates are applying for and receiving such visas, for reasons which we don’t fully understand.
You should check with Immigration Canada or consult an immigration expert to see how you might be treated should you attend Nova Scotia College of Early Childhood Education and wish thereafter to work in Canada.”
Of course, such a statement would not have been an effective recruitment tool. However, it would have been the truth.
Anna was able to provide evidence that she had suffered a loss of income of $12,000.00. She was awarded this amount plus her tuition, although ultimately the amount that NSCEC was ordered to pay her was $25,000.00, which is the maximum that could be awarded in small claims course. Peta received only $10,000.00 because she was unable to prove certain damages (tuition) when the hearing was held.