Page 7 - ELG1702 Feb Issue 444

February 2017 ELopinion Page 7

You can’t afford a fraud
t’s a new scam on us. A lan- have a defence: that the agent
guage travel agent sets up a was on ‘a frolic of his own’.
Ipartnership with a reputable This frolic, a legal term, refers
vocational college and then, to a situation where an agent
unbeknownst to the course Melanie Butler warns course providers to beware of dubious claims does something while not on the
provider, sets up another legal principal’s business, however it
entity using the college’s name, made about them by their own agents – as they may be liable may seem to the consumer. The
siphoning off the students and defence arose in a case in 1834
their fees. Yet this is exactly where a man was knocked down
what happened to three Cana- The likelihood of the Cana- by a cart belonging to a certain
dian colleges, as we report on dian authorities finding direct company and sued them. The
the front page. There are impor- involvement with fraud at the company argued successfully
tant lessons – not only to state English-speaking boards seems that the driver, who had used
colleges but to course provid- remote, which is not to say they the cart to go home for lunch,
ers in the international student cannot be held liable. Under was using the cart for his own
business anywhere in the Eng- Canadian law, as in all common purposes and was not on the
lish-speaking world. law jurisdictions, rules on agency employer’s business.
Countries which have com- agreements mean that the princi- How do courts establish if the
mon law have to follow the legal pal to the agreement, in this case agent is on a frolic? It depends
doctrine that the principal is the college, has vicarious liabil- on the jurisdiction (as for Can-
responsible for the results of its ity for the actions of its agents. ada, McCarthy doesn’t mention
agent’s behaviour – even if they In Canadian law this is clear. To the term frolic at all, though
did not authorise that behaviour. quote verbatim from the Cana- the doctrine may exist under
This means that in every Eng- dian legal website McCarthy. another name).
lish-speaking destination, except ca: ‘An employer is ALWAYS Roughly speaking, under
Malta and the Philippines, a VICARIOUSLY LIABLE for current English law the courts
course provider may be held wrongs committed by an agent look at three questions: was the
legally responsible for any of the in the scope of the agent’s actual, act incidental to and thus in the
errors, mis-selling or downright apparent or usual authority.’ scope of the agent’s authority,
scams of its agents. What does vicarious liability where and when did it take place
And there have been plenty of mean? ‘The instance in which a and did the contract provide the
scams. Especially, unfortunately, court will hold one party respon- agent with the opportunity to
in the vocational sector, where sible for the misconduct of perform the acts?
large number students, often another, even though the party So, what if an agent claims a
from less socially advantaged held liable for the misconduct Picture copyright: Chris Duggan well-known boarding school is
running a summer camp which
Imagine an agent sets up a scamming website is actually run by a private course
using the course provider’s name. Now imagine organiser on the boarding school’s
the website makes an offer to the consumer the website makes an offer to sue the course provider. nition of vicarious liability and premises? If the agent’s contract
Best Bett for tech families, can find themselves has not committed any wrong of the consumer that the provider student is to win depends on providers are less likely to hold to make the false claim, would the
provided him with the opportunity
Just how likely the scammed
courts decide the agent was on a
did not authorise, again easy to
responsibility. It’s tougher for
on substandard courses with- its own.’ establish using Google translate. which common law jurisdiction providers in Canada. It is tough frolic? We cannot find any prec-
out their promised work rights, And how can the college be Under common law the student the provider falls under. In the too in the UK, where – as in edents, but it is certainly better to
forced to support themselves liable if it didn’t authorise the who suffers from the scam may US there is a very narrow defi- Australia – providers do at least be safe than sorry. n
by working illegally. The Aus- agent’s behaviour? In Canadian
tralians cracked down in 2008, law there’s the idea of ‘apparent’
the UK in 2011 and in 2015 the responsibility, which has two
Irish closed the sector entirely to meanings.
non-EU students. Last year New First, a situation where ‘the
Zealand saw protests from stu- principal’s conduct leads a pru-
dents lured there by scammers dent person to suppose that the
and facing deportation. agent has been authorised to act
Now unscrupulous agents in the on behalf of the principal’. A stu-
vocational sector have come up dent in say, China, sees a website
with a new scam. Unusually, this registered in China and written
happened in Canada, which has in Chinese promising scholar-
the strongest regulatory system for ships at a named university in
agents, at least those incorporated the West available through a
as a legal entity in that country. certain authorised agency. If the
It involved two agencies recruit- student clicks directly through
ing from two different countries: from the Chinese agencies to the
Indian and Korea. university’s official website and
Also unusual is that it involved finds the agency’s name, they
vocational colleges in the state might suppose the agent has the
sector. Indeed it has resulted in college’s permission to run that
two of them, the English Mon- website and, in that belief, pay
treal School Board and Lester B. the agent money. If the agency
Pearson, being put under audit then pockets the money but no
by the education authorities and scholarship is forthcoming, as
investigated for corruption. Cor- long as the agency has an agree-
ruption in the private sector is not ment with the university, the
unheard of. Such cases are much university could be liable.
rarer in the state sector where Secondly, apparent authority
international students are only a exists when ‘the principal, inten-
small part of their enrolment. We tionally or carelessly, allows a
can remember only one proven third party to believe that the
immigration fraud case involv- agent has been authorised to act
ing staff from the state sector: the on his or her behalf’. Imagine an
Ielts test centre of Curtin Univer- agent sets up a scamming web-
sity in Perth, Australia, where a site using the course provider’s
centre administrator was found name, easy to seek out through
guilty of falsifying tests in 2011. a Google search. Now imagine

Get on the case – before it’s too late
It’s no good saying you hadn’t noticed what claims
agents are making in your name. Your institution
needs to be on the case.
If you don’t do so already, it’s time to start regularly
googling your college’s name in all the languages of
all the countries in which you do business!
Check the websites and publicity of all your author-
ised and contracted agents.
If you find anything objectionable, immediately con-
tact the agent or web hosts, or get on to the relevant
advertising standards or consumer rights watchdog.
Act fast so you have evidence that you contacted
what English law calls ‘the relevant authorities’ to
make an official complaint. This will in many jurisdic-
tions give you some protection from liability.

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