In Osmani v. Universal Structural Restorations Ltd., 2022 ONSC 6979, an Ontario court was the first to consider a claim for damages for the statutory tort of human trafficking under the Prevention of and Remedies for Human Trafficking Act (PRHTA).  Although this tort is often thought of in the context of sex trafficking, its application can also be considered in the context of labour human trafficking as it was in Osmani.  While in this case the court dismissed the employee’s claim, a successful claim may be made in the future in the labour context, most likely by a vulnerable employee, such as a Temporary Foreign Worker (TFW) who is dependent on a work permit tied to their employer, who was abused by their employer.   

Background

An Albanian man was first hired “off the books” as a labourer in Canada.  After he obtained TFW status, he continued to work for the same company.  The employee claimed that his supervisor and employer abused him by subjecting him to humiliating, degrading and embarrassing conduct, including derogatory and discriminatory language, profanity, threats related to his immigration status, physical abuse, and interference with his ability to obtain compensation from the Workplace Safety and Insurance Board (WSIB) following a work-related injury. Upon his return to work, the conditions were allegedly intolerable and he was constructively dismissed. 

In addition to several other claims for damages against his employer, the employee sought $100,000 in damages for the tort of human trafficking contrary to the PRHTA.  The court was satisfied that the employee established the majority of his claims and awarded him damages; however, it determined that the employee did not establish some claims, including his claim for the tort of human trafficking. 

The Tort of Human Trafficking in the Context of Labour Human Trafficking

In considering the employee’s claim for damages for the tort of human trafficking, the court referred to several background reports that explained that labour human trafficking is often experienced disproportionately by certain vulnerable populations, including TFWs who are dependent on work permits tied to their employer, and fear that if they report abuse their employer will retaliate by allowing their permit to expire, resulting in their loss of legal status. 

In its reasons, the court explained that pursuant to the PRHTA, the tort of human trafficking is established if it is found that a person exercised control, direction or influence over a complainant’s movements for the purpose of exploiting them or facilitating their exploitation, knowing that their actions would cause a reasonable person in the complainant’s position to believe that their safety would be threatened if they failed to provide labour or service.  In such an action, the court may, among other things, award general, special, aggravated and punitive damages to the complainant.  In doing so, the court must consider all of the circumstances of the case, including, any particular vulnerabilities of the complainant; all aspects of the defendant’s conduct; and the nature of any existing relationship between the complainant and the defendant.

Employee’s Argument

The employee argued that the employer directly, and vicariously through his supervisor, exploited his position of vulnerability as a TFW and, accordingly, he was the subject of “labour trafficking.”  In support of his argument against the employer directly, the employee noted that he was required to pay his work permit fee; received “cash” wages that were lower than the amount agreed upon; was required to pay back $2/hr for hours worked; was directed on how to deal with his WSIB claim; and was left to work in a toxic environment under an abusive supervisor.  The employee stated that he was afraid to expose the employer because he did not want to jeopardize his work permit, and was caught in the employer’s “clutch” with no path for complaint or redress.

The employee argued that the supervisor exercised control, direction or influence over his movements to exploit him or facilitate his exploitation by the employer, in relation to renovation work that he performed at the supervisor’s house.

Decision

The court dismissed the employee’s claims for damages for the tort of human trafficking.  In doing so, the court determined that this was not a case in which it could be inferred that the employer’s purpose in directing, controlling or influencing the employee’s movements was to exploit him; to the extent that the employer exerted control, influence or direction over the employee’s movement, it was in the context of a regular employer-employee relationship, even taking the employee’s TFW status into consideration.  In arriving at this conclusion, the court was influenced by the following findings:

• The employee was the employer’s “paid employee”;
• The employee’s remuneration and work conditions were the same as his co-workers’;
• The employee received only the usual direction that an employee receives from an employer;
• None of the employer’s acts that the employee called into question could reasonably be expected to cause a person in the employee’s position to believe that their safety would be threatened if they failed to provide labour or service for the employer.

The court found that because when asked to help with the renovations at the supervisor’s home, the employee felt like “he had no choice but to help given the nature of the relationship with [the supervisor]” and was concerned that the supervisor could “exert influence over his work permit, his employment…and consequently, his stay in Canada,” the supervisor’s “request” that the employee assist with renovations at his home amounted to a “direction” by the supervisor to the employee.

Although the court acknowledged that the supervisor acted inappropriately by taking advantage of his position as the employee’s immediate boss and obtaining free labour, it emphasized that his “direction was not coupled with any explicit comments or threats that if [the employee] failed to help with the renovations, it would impact his work permit or otherwise result in harm.”  Because the supervisor did not explicitly or implicitly send the message to the employee (or a reasonable person standing in the employee’s position) that the employee’s safety would be at risk unless he helped with the renovations, the court found that, in issuing the direction to the employee, the supervisor’s purpose was not to exploit him.

Although the court dismissed some of the employee’s causes of action, including his cause of action for the tort of human trafficking, the court found that he established a number of his claims, including for the torts of battery and assault, violations of the Human Rights Code, wrongful dismissal, and unpaid wages.  The court awarded damages accordingly. 

Bottom Line for Employers

Although the TFW in Osamni was unable to persuade the court that he had a claim for the statutory tort of human trafficking in the context of labour human trafficking under the PRHTA, employers should be aware that a successful claim may be made in the future by employees in vulnerable positions who experience their employers’ abuse, including TFWs who are dependent on work permits tied to their employer.  To avoid being required by a court to pay general, special, aggravated and punitive damages to an employee in a successful claim, employers should avoid exercising control, direction or influence over their movements for the purpose of exploiting them or facilitating their exploitation, knowing that their actions would cause a reasonable person in the employee’s position to believe that their safety would be threatened if they failed to provide a labour or service.