Human trafficking: Canadian court confirms statutory tort applies to temporary foreign workers

George Waggott
George Waggott Professional Corp, Toronto, Ontario
george@georgewaggott.com

One of the challenges associated with having an enforceable system of international human rights protections is that the scope of ‘rule of law’ remedies is not always widely recognised or accepted. For potential claims in Ontario, Canada, there is some useful clarity as a result of a recent decision of the Ontario Superior Court of Justice involving a temporary foreign worker. As a result of this ruling, there is now some prospect that statutory claims may be available in human trafficking cases, including those involving labour brokers where the worker can establish exploitation.

The decision in Osmani v Universal Structural Restoration Ltd 2022 ONSC 6979 involved a civil court claim filed on behalf of Rezart Osmani, an Albanian man who came to Canada in December 2018 with a desire to work hard and provide for his family. In his lawsuit, which he filed after his employment ended in February 2020, Osmani claimed that he had been subjected to repeated abuse and suffered permanent injuries as a result of being assaulted by his supervisor. His claim against the employer included a request for damages due to being a victim of human trafficking, all based on the allegation that Osmani had been exploited in part because of his status as a foreign worker.

The Court’s decision is believed to be the first ruling which considers the Ontario Prevention of and Remedies for Human Trafficking Act 2017 (PRHTA), a provincial statute which allows claimants to seek various remedies in the courts in human trafficking cases. In particular, the PRHTA establishes a statutory tort – which can be pursued in Ontario’s civil courts – of human trafficking. This type of claim is not restricted to prostitution or sex trade cases and can also be pursued by individuals such as Osmani who claim that they were victims of labour trafficking.

The process for filing a PRHTA claim is that any victim of human trafficking may bring a civil claim in the Ontario courts against any person who is alleged to have engaged in human trafficking. In any such action or claim, which may be included as part of a claim for other matters, the court may award a number of remedies, including: (1) awarding damages to the victim; (2) ordering the defendant to account to the victim for any profits which have accrued as a result of the human trafficking; and (3) issuing an injunction with such conditions as the court determines. In this civil court process, while proof of actual damages does not need to be proven, there is a requirement for the relevant court to make findings of fact based on the balance of probabilities standard. In other words, the evidentiary process is comparable to what would apply to Canadian civil law cases, and any PRHTA claim for human trafficking does not need to be proven to the criminal standard of beyond reasonable doubt.

One interesting focus of the Court’s decision in Osmani was the review of the potential for liability when labourers who are dependent on a work permit tied to their employer are then subjected to workplace abuse. Based on the specifics of Osmani’s case, his statutory claim under the PRHTA was dismissed. This was despite the fact that he was able to present clear evidence of abuse, which included a physical assault and related permanent injuries. The Court’s reasoning in his case does, however, clearly suggest that vulnerable workers may have recourse under the PRHTA in future cases, including those where undue influence or coercion connected to worker status can be proven. In other words, the specific requirement of exploitation based on his foreign worker status was not present in Osmani’s case, so he could not prove that he was subjected to human trafficking. He did, however, succeed in being awarded other significant damages (in excess of CAD 250,000) based on being assaulted and violations of his human rights.

When Osmani first came to Canada in December 2018, he was initially hired to work ‘off the books’ for the defendant employer, Universal Structural Restoration. By early 2019, he had obtained approval to work in Canada as a Temporary Foreign Worker, which meant that his continued right to remain in Canada at that point was tied to the specific employment which he had at Universal.

In his court claim, Osmani set out a long list of allegations about how the employer and his colleagues mistreated him. These claims, which were mainly substantiated, included being subjected to battery and assault (proven physical abuse by a supervisor, which required surgery and resulted in a long-term injury), derogatory and discriminatory language (which was found to be discriminatory and in breach of the Ontario Human Rights Code), and other alleged mistreatment such as being required to work for free at his supervisor’s home. The Court found, however, that there was not sufficient evidence to support a claim that Osmani had been subjected to threats tied to his immigration status, meaning that he was not able to succeed on his specific case for remedies with respect to human trafficking.

Osmani’s counsel had sought CAD 100,000 in damages based on the Ontario statutory tort of human trafficking pursuant to the PRHTA. Part of the basis for this claim was that the employer had obtained free labour from Osmani, who claimed that he feared that his immigration status may be impacted if he did not agree to work for free at a manager’s home as had been requested by the employer. What was not present, however, was any action by the defendant employer which could be considered exploitation. The supervisor or other representatives of the employer did not, for example, threaten Osmani with potential immigration or employment consequences if he failed to perform the requested work.

The Court’s analysis of the tort of human trafficking began by referring to the purposes of the PRHTA, which is to deter or eliminate the human trafficking of people into environments where their rights will be violated. In this regard, the Court noted that migrant workers are particularly at risk in this context. To establish a claim, the Court emphasised that, consistent with the provisions in the legislation, actual damage does not necessarily need to be proven. Indeed, the PRHTA expressly says that an action may be pursued ‘without proof of damages’.

To succeed with an Ontario statutory claim for human trafficking, however, a court will be required to find on the balance of probabilities that the claimant was a victim of exploitation. This assessment requires the court to find that there was a reasonable belief that the person would be subject to a threat to their safety if they failed to provide the labour or service, that is to say, there must be sufficient facts present to infer that the worker actually felt threatened or exploited by the employer.  

In Osmani’s case, while he did provide free labour to his supervisor, there were no related comments or threats about what might occur if he refused to do this work. There was thus no basis to find that he was exploited within the meaning of the PRHTA – while he was ‘mistreated’ by his employer (and substantial damages were awarded in the case for the misconduct, including what he did establish in the form of assault and discrimination), he had no reasonable basis to claim that his work permit and position with the employer were in jeopardy. In other words, there is a distinction between mistreatment on certain other legal grounds and the concept of ‘exploitation’ which is required to be awarded remedies under the PRHTA for the statutory tort of human trafficking.

Outlook for employers: Human trafficking claims may emerge

A legal breakthrough can often emerge from a case where the specific argument fails but the guiding principles are highlighted. That may well be the case for Canadian Temporary Foreign Workers or other workers, whose representatives may now look more closely at the prospect of filing claims under the Ontario statutory tort of human trafficking under the PRHTA. Employers will need to be very cautious about the prospect that vulnerable workers may proceed in the future with claims tied to the principles of exploitation, which does not require proof of actual damage, as outlined in the Osmani decision and the related Ontario legislation. The risk that an employee may feel threatened is genuine and must be properly managed. In particular, employment and any related work permits cannot be conditional upon workers being forced to perform work which exploits them, meaning their safety cannot be unreasonably placed at risk. With the statutory tort of human trafficking available, this result will almost invariably include a close review of whether or not organisations and their actions are objectively reasonable or constitute exploitation. One hopes that this may reduce or eliminate the types of abuse and mistreatment which the legislation was adopted to address.