In Osmani v. Universal Structural Restorations Ltd., an Ontario court dismissed a claim that an employer engaged in the tort of human trafficking in respect of a temporary foreign worker.
The Plaintiff was born in Albania. He arrived in Canada in 2017 and started working for his employer in December 2018. He was initially hired “off the books” as a labourer but ultimately secured Temporary Foreign Worker status in February 2019.
The Plaintiff claimed that he was subjected to humiliating, degrading and embarrassing conduct by his direct supervisor throughout his employment, including:
- derogatory and discriminatory language about his background and nationality;
- threats related to his immigration status;
- interference with his ability to obtain compensation from the Workplace Safety and Insurance Board (WSIB); and
- being physically assaulted in front of co-workers (including being punched in the testicle which ultimately led to surgical removal).
Among other claims, the Plaintiff sought damages against his employer in the amount of $100,000 for the tort of human trafficking contrary to the Prevention of and Remedies for Human Trafficking Act, 2017 (the Act).
The Tort of Human Trafficking
Under the Act, a victim of human trafficking can bring an action against any person (which includes a company or employer) who engaged in human trafficking. Human trafficking is defined as a person exercising control, direction or influence over the movements of a person for the purpose of exploiting them or facilitating their exploitation. Exploitation occurs when the conduct in question could reasonably be expected to cause the person to believe that their physical or psychological safety would be threatened if they failed to provide the requested labour or services.
If a court finds that human trafficking occurred, it can award damages to the victim, including general, special, aggravated and punitive damages.
The Plaintiff claimed that his employer directly, and vicariously through his supervisor, exploited his position of vulnerability as a temporary foreign worker. In short, he argued that he was the subject of labour trafficking.
In support of his argument, the Plaintiff stated that he:
- was required to pay the fee associated with his work permit;
- received cash wages that were lower than the agreed upon amount;
- was required to pay back $2/hour for hours worked;
- was directed on how to deal with his WSIB claim;
- was left to work in a toxic environment under the supervision of an abusive supervisor; and
- feared exposing his employer as he did not want to jeopardize his work permit.
The court dismissed the human trafficking claim against the employer. In particular, it noted:
- the Plaintiff was a paid employee of the employer;
- the Plaintiff’s pay and work conditions were on par with his co-workers;
- apart from the usual direction that an employee receives from an employer, the Plaintiff’s movements were not controlled, directed or influenced by his employer;
- there was no evidence that the employer intended to exploit or facilitate the exploitation of the Plaintiff; and
- none of the employer’s actions could reasonably be expected to cause a person in the Plaintiff’s position to believe their safety would be threatened if they failed to provide labour or services for the employer.
Notwithstanding that the human trafficking claim was dismissed, the employer was required to pay significant damages to the Plaintiff for other causes of action, including constructive dismissal, violations of Ontario’s Human Rights Code, and the torts of battery and assault.
Takeaways for Employers
The decision is an important reminder to Ontario employers that the statutory tort of human trafficking applies to instances of labour trafficking and is available to employees. While an Ontario employer has not yet been found to have engaged in the tort of human trafficking, the decision reflects the increased focus and attention on labour standards and conditions for more vulnerable employees, including low wage workers with temporary immigration status.
If you have any questions about this decision, please contact the author or your regular Fasken lawyer.