Employees are entitled to human rights protections in the workplace. For example, under either federal or provincial legislation, employees have the right to employment free from discrimination and harassment, including of a sexual nature.
Most employees that work at private workplaces in Ontario receive these rights under the Ontario Human Rights Code. As we have mentioned, these rights can be enforced by applying to the Human Rights Tribunal of Ontario or filing a claim through the court system.
In addition and depending on the treatment involved, employees may have other independent civil claims. We recently looked at the possibility of claims concerning vicarious liability for sexual harassment and sexual assault. This article looks at another civil wrong that may apply in the employment context in Ontario – the tort of human trafficking.
What is human trafficking?
Human trafficking is an indictable offence under Canada’s Criminal Code. It occurs when a person:
“recruits, transports, transfers, receives, holds, conceals or harbours a person, or exercises control, direction or influence over the movements of a person, for the purpose of exploiting them or facilitating their exploitation.”
As seen from this passage, two elements need to be proved for a finding of guilt. Firstly, the person needs to have engaged in conduct, including exercising control, direction or influence over a person’s movements. Courts have decided that exercising influence means doing anything to affect the victim’s movements, even if they still have the free will to operate.
Secondly, there is a purpose element. The person must engage in the relevant conduct to exploit or facilitate their exploitation. Exploitation doesn’t need to be the outcome, but it needs to be the purpose.
Finally, the Code defines exploitation as causing a person to provide or offer labour or service by engaging in conduct that could reasonably be expected to cause the person to believe that their or another’s safety would be threatened if they failed to comply.
There is a statutory tort of human trafficking in Ontario
Ontario’s Prevention of and Remedies for Human Trafficking Act (Act) creates a civil claim for human trafficking victims.
It defines human trafficking by reference to the Criminal Code provisions and allows a victim to bring an action against a person that engaged in their trafficking. If the plaintiff establishes that they were a victim of human trafficking, the court can award a remedy, even without proof of damage. This includes awarding them monetary damages, including general, special, aggravated and punitive damages.
The tort applies to labour human trafficking
While human trafficking is often associated with the sex trade industry, it also applies to other instances of labour trafficking. This was confirmed during the second reading speech for the Bill when an MLA said:
“The bill … aims both to deter human trafficking of young people to the sex trade or to prostitution, but also to protect people who are being trafficked in what we call labour human trafficking, who are being trafficked into places where their rights will be violated and they won’t be paid and will be made to work for long hours without any protection. Migrant workers are particularly at risk in that context.”
Employee claimed that he had been subject to abuse
The recent decision of the Ontario Superior Court of Justice in Osmani v Universal Structural Restorations Ltd. was the first trial decision addressing the tort of human trafficking.
The Albanian plaintiff came to Canada and started working for the defendant company in December 2018. Shortly after, he obtained temporary foreign worker status.
He commenced proceedings against his employer and supervisor, arguing that he had been constructively dismissed, subject to discrimination and harassment, punched in the testicles leading to injury and trafficked.
Employee sought damages for the tort of human trafficking
Concerning the human trafficking claim, the plaintiff sought damages arguing that the company and his supervisor controlled his movements. He was required to give $1,000 to his supervisor for the work permit fee paid by the company.
The plaintiff also alleged that he received wages in cash lower than the agreed amount, worked in a toxic environment and could not expose the company out of fear of losing his work permit. Finally, he told the court that he was forced to renovate his supervisor’s house for free.
The company did not control his movements
Justice Di Luca found that the plaintiff was an employee whose pay and conditions were equivalent to his co-workers. His Honour decided that, apart from the usual direction provided by an employer, it was hard to see how the employer controlled the plaintiff’s movements.
The employee’s movements were directed by the supervisor but not for the purpose of exploitation
However, the supervisor was directly involved in obtaining the work permit, and his Honour said:
“I am prepared to find that in a context involving a Foreign Temporary Worker, the thought of being removed from Canada would be objectively sufficient to create a fear for one’s safety from a psychological perspective and perhaps also a physical perspective.”
Justice Di Luca agreed with the plaintiff that the “request” to help with the house renovations was a direction to perform labour. However, his Honour decided that the direction was not given for the purpose of exploiting the plaintiff. It was not accompanied by any explicit threat that failure to help would impact the permit or result in harm, and no such inference could be drawn from the supervisor’s comments in the lead-up to the direction. The supervisor viewed it as repayment for the supposed favour of getting the plaintiff the job and permit.
As a result, the human trafficking claim was dismissed. However, other parts of the claim succeeded, with the plaintiff awarded almost $300,000 in damages.
Contact Haynes Law Firm in Toronto for Advice on Human Rights in the Workplace
Haynes Law Firm represents both employees and employers in all types of human rights claims. We cut through the complexity to advise you or your organization on the best strategy for moving with your claim or defence. Our team has more than 25 years of experience representing clients in human rights claims and is ready to serve you in whatever forum required, from negotiation to proceedings in human rights tribunals or court. To discuss how the employment law team at Haynes Law Firm can assist you, please contact us online or call us at 416.593.2731.
