The tort of human trafficking is not often the first thing to come to mind when considering possible claims made by employees against their employers. Instead, workplace discrimination or harassment allegations are more commonly discussed issues. Further, it is not typically the case that human trafficking is associated with employment outside of the sex trade context. However, Ontario has a statutory tort of human trafficking and an employee that has been trafficked can bring a claim seeking damages.
This article examines the recent decision of the Ontario Superior Court of Justice in Osmani v Universal Structural Restorations Ltd. This was the first case to consider a claim for damages for the tort of human trafficking under Ontario legislation. The claim was brought by an employee against his employer and supervisor.
A temporary foreign worker brought an action alleging various types of abuse
The employee moved to Canada and started working for the defendant “off the books” before obtaining temporary foreign worker status.
He started proceedings against his employer and supervisor after alleging a range of abusive treatment. Specifically, the plaintiff employee argued that his supervisor used discriminatory language, threatened him regarding his immigration status, deliberately injured him and interfered with his worker’s compensation claim.
The employee’s claims ranged from recovery of unpaid wages to human rights violations under the Ontario Human Rights Code to a range of civil wrongs, including intentional infliction of mental suffering, battery, assault and human trafficking.
The tort of human trafficking
Ontario’s Prevention of and Remedies for Human Trafficking Act 2017 (the “Act”) allows a victim of human trafficking to bring an action against any person who engaged in human trafficking.
If the person can show they have been trafficked, the court can award them damages or another appropriate remedy even without proof of damage. Under the Act, there does not need to be a criminal charge or conviction for human trafficking. However, the plaintiff must show that the defendant engaged in conduct that constitutes “human trafficking” under the Criminal Code (the “Code”).
What is the definition of human trafficking?
Under the Code, human trafficking constitutes an offence if a person:
- recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person; and
- does so for the purpose of exploiting them or facilitating their exploitation.
“Exploitation” is defined as causing a person to provide or offer labour or a service by engaging in conduct that could be reasonably expected to cause the person to believe that their or someone else’s safety would be threatened if they did not provide the labour or service.
Temporary foreign workers are susceptible to human trafficking
Research has identified that migrant workers with temporary immigration status are more likely to be exposed to abuse and trafficking in the workplace. However, these employees can face unique barriers to reporting such incidents. Many temporary foreign workers have work permits tied to one specific Canadian employer; therefore, workers may be disincentivized from reporting abuse as their employer could retaliate by letting the permit expire. When the choice is between losing status and returning home or continuing to work in exploitative conditions in Canada, workers often choose the latter. Other issues, including language barriers and a lack of understanding of their legal rights, can exacerbate the problem.
Plaintiff claimed that he was exploited by his employer and supervisor
The plaintiff argued that he was a victim of labour human trafficking, in a vulnerable position as a temporary foreign worker and exploited by his employer and supervisor.
The plaintiff was required to pay the fee for his work permit, he received cash wages that were lower than the agreed upon amount, he was directed on how to deal with the worker’s compensation claim and he was subjected to a toxic work environment with an abusive supervisor. He testified that he feared losing his work permit and that he renovated his supervisor’s house for free.
In response, the supervisor argued that there was no purpose of exploitation and that the plaintiff was simply repaying him for the favour of getting him the job and work permit.
Supervisor directed the movements of the plaintiff
The Court quickly dismissed the human trafficking claim against the employer because the employer did not control, direct or influence the plaintiff’s movements. As the judge said:
“[The plaintiff] was a paid employee at USRL. His pay was on par with the pay his co-workers received. His work conditions were also on par with his co-workers. Apart from the usual direction that an employee receives from an employer, it is hard to see how [the plaintiff’s] movements were controlled, directed or influenced by USRL.”
However, the judge noted that the plaintiff was concerned that his supervisor could exert influence over his work permit and employment. In this context, the request to help renovate the supervisor’s home amounted to a direction to perform labour.
But the supervisor’s conduct was not for the purpose of exploitation
For the human trafficking claim to succeed, the supervisor’s conduct needed to be done to exploit the employee. The judge found that this was not the case as there had been no explicit threats made to the employee that his permit would be impacted if he failed to help with the renovations. Further, the Court was unable to find any threatening inferences based on comments made in the lead-up to the request.
As a result, the human trafficking claim was dismissed. However, the plaintiff proved several of his other claims, resulting in a substantial damages award.
Contact the Lawyers at Grosman Gale Fletcher Hopkins LLP in Toronto for Representation in Human Rights Claims
Human rights claims are not restricted to discrimination and harassment complaints before administrative tribunals. Employees potentially have a range of civil remedies so it is important to obtain advice from an experienced employment lawyer. Grosman Gale Fletcher Hopkins LLP also helps employers reduce the risk of claims being brought following the termination process and provides robust defence to allegations of human rights violations. Contact us online or call our office at 416.364.9599 to schedule a consultation.
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