Story by Josh Rubin for the Toronto Star on October 2, 2019
When Monica Bustelier noticed thousands of dollars missing from her bank account in late August, the owner of the Little Havana Cafe food truck figured it was just a technical glitch.
But the story behind the missing money turned out to be a remarkable one, full of twists and turns which eventually led back to a recent decision by the Trump administration and one of the world’s longest-running trade blockades — the American embargo on doing business with Cuba.
For Bustelier and her partner Joshua English, the realization came slowly. At their three-year-old food truck — actually a revamped vintage 1962 trailer — most customers pay via credit or debit, using the Square mobile payment system created by Twitter founder Jack Dorsey. Usually, money would show up in their account a few days after a customer would buy a rich, strong cafecito, or cafe con leche.
Then, in late August, the payments stopped coming. To date, Toronto-based Little Havana Cafe is out roughly $14,000.
“We kept getting the emails saying ‘Square has deposited $750 into your account.’ But then we’d go and look, and it wasn’t there,” said Bustelier, who was at first puzzled, then concerned.
They called Square, who told them to call their bank. Their bank said no deposit had been made.
“We went back to Square and they looked again, and said it was a problem with their payments processor. Then finally, they checked again, and said J.P. Morgan Chase couldn’t process it because the embargo was tightened in the last month or two, and we were selling Cuban coffee,” said Bustelier.
“Square’s been pretty supportive since they found out what the issue actually was. But they still said they had to close our account. They’re trying to help us get our money, but we still don’t know if or when that will happen,” said Bustelier.
Square spokesperson Leslie Jackson said the company has been in touch with Bustelier and English, and is trying to help them out.
“We are in contact with the owner of Little Havana Cafe and working with them toward a resolution,” said Jackson.
J.P. Morgan Chase, one of the biggest banks in the U.S., which also has operations in Canada, confirmed that the U.S. Helms-Burton Act — the current version of the U.S. trade embargo on Cuba — is the reason for the missing money.
“While we are acting as a vendor to a Canadian company, as a U.S. company we are legally bound by U.S. sanctions law. The unfortunate result, in this case, is that we are legally prohibited from completing the processing of these payment transactions,” said Mary Jane Rogers, J.P. Morgan Chase’s managing director of communications.
The thorniest part of the Act is the section saying companies can be sued for “trafficking” in property confiscated by the Cuban government. Since 1996, successive U.S. administrations had issued “temporary” suspensions of that section. But in May of this year, the administration of U.S. President Donald Trump let the suspension expire, meaning companies could be sued again.
But enforcing any U.S. lawsuit judgments in Canada would be tricky for another reason — in 1992, Canada updated the Foreign Extra-territorial Measures Act, and banned companies from complying with the U.S. embargo. It also allowed them to counter-sue in Canada for any losses in U.S. courts.
Toronto lawyer John Boscariol, head of the international trade group at McCarthy Tetrault, said the tension between the two pieces of legislation has never been settled in court.
“The governments have delegated this to companies, when really it should have been solved at the governmental level. For companies like Square, they’re caught between a rock and a hard place,” said Boscariol, adding that there’s been an uptick in questions from Canadian companies since the May change.
Worryingly, this could just be the beginning of a sticky situation that could ensnare other Canadian companies which sell Cuban goods. “We get three or four of these calls a week. Not all of them make the paper,” said Boscariol. “I expect more cases like this. Canadian companies just have to keep in mind that they … can’t refuse to do business with someone because of the U.S. embargo of Cuba.”
At first when Little Havana’s owners found out the real reason for the missing payments, they were stunned, said English. They hadn’t even realized that their money had been getting routed through a major U.S. bank.
“We’re a Canadian business, selling Cuban coffee bought in Canada to Canadian customers. It never entered our minds that this would be an issue,” said English.
As a technology company — but not a bank — Square uses financial institutions to actually take care of processing the payments and sending them into business owners’ bank accounts. In Canada, the company they use is J.P. Morgan Chase. (In other markets where Square operates, they use other banks.)
As they wait for their $14,000, Bustelier and English are also searching for another company to handle their credit and debit card payments. For anyone in their position, they’ve got one simple bit of advice.
“Do your research. Find out exactly where the money goes,” said English.
Josh Rubin is a Toronto-based business reporter. Follow him on Twitter: @starbeer