This case is the first time that an Ontario court had to consider a claim for damages for human trafficking in the labour context under the Prevention of and Remedies for Human Trafficking Act, 2017, S.O. 2017, C. 17 Sched 2 (“PRHTA”). The court ultimately struck down the claim by the worker for damages for the tort of human trafficking, but the court did go on to set out how the judgment may be used in future cases to address the tort of human trafficking in the labour context.
The plaintiff, Rezart Osmani (“Mr. Osmani”), worked for the defendant, Universal Structural Restorations Ltd. (“Universal”), as an “off the books” general labourer. Universal is a construction company. However, in February 2019, Mr. Osmani was able to get his Temporary Foreign Worker status under Canada’s Labour Market Impact Assessment (“LMIA”) program. The other defendant, Ludgero De-Almeida (“Mr. De-Almeida”) also worked for Universal and was Mr. Osmani’s direct supervisor.
Mr. De-Almeida was described as a harsh supervisor to Mr. Osmani. For instance, he would habitually engage in belittling pranks and derogatory name-calling. Further, Mr. De-Almeida significantly injured Mr. Osmani in December 2018. During a meeting with other employees of Universal, Mr. De-Almeida reacted to a comment made by Mr. Osmani by punching Mr. Osmani in the groin. Mr. Osmani, due to Mr. De-Almeida’s punch, was in immediate pain and had to go home because of the pain he was suffering in his groin. He did report the incident to Universal. However, almost nothing was done about the incident.
By April 2018, he was still suffering significant pain and swelling in his left testicle and, as such, Mr. Osmani decided to see a physician about his pain. As a result, he was referred to a urology specialist. Ultimately Mr. Osmani’s only option was to surgically remove his left testicle. The physical and mental impacts of this injury were significant as even after surgery and removal of the testicle, Mr. Osmani still felt pain and suffered significant mental and emotional difficulties.
In May 2019, Mr. Osmani had fallen from a ladder while at work. As a result of the fall, Mr. Osmani was in significant pain and could not get up. After several hours on the ground, Mr. Osmani had asked to go home, and he needed to be picked up and carried to a vehicle and then driven home. Mr. Osmani did not immediately report the incident to the WSIB as he did not want to “cause trouble” for Universal and was instructed not to approach the WSIB by Mr. De-Almeida. Mr. Osmani maintained that Universal had interfered with his claim to the WSIB. However, despite the actions of Mr. De-Almeida and Universal, Mr. Osmani eventually reported his injury to the WSIB and began receiving benefits in June 2019.
In February 2020, Mr. Osmani quit his job at Universal via a resignation letter. He claimed he could no longer tolerate what abuses he had suffered and was fearful about what would happen in the future.
In its decision, the court first set out that the tort of assault and battery as claimed by Mr. Osmani. This tort involves non-consensual physical contact beyond trivial contact that may be reasonably expected in the course of ordinary life. The intention to cause injury is not necessary but what is necessary is “contact plus something else.” Obviously, a strike to the groin satisfied the tort of battery and the court awarded Mr. Osmani general damages in the amount of $100,000 taking into account the sexual nature of the battery as an aggravating factor. The court also awarded punitive damages of $25,000 in relation to this tort. The court awarded Mr. Osmani $10,000 for assault and also found that Universal was vicariously liable for the harm done to Mr. Osmani by Mr. De-Almeida. However, the punitive damages were only against Mr. De-Almeida and not Universal as Universal did not engage in any specific reprehensible conduct in relation to the battery.
The court went on to discuss the tort of intentional infliction of mental suffering. The court reflected on Boucher v. Wal-Mart Canada Inc., 2014 ONCA 419, where the elements of this tort were set out as 1) conduct that is flagrant and outrageous, 2) calculated to produce harm and 3) results in a visible and provable illness. The court set out that while Mr. Osmani met the first element of this tort, that he failed to establish that Mr. De-Almeida subjectively intended to cause the type of harm that Mr. Osmani suffered from and, as such, the court dismissed the tort of intentional infliction of mental suffering.
Then court then took on the tort of human trafficking. Again, this is noteworthy as this is the first time that such a tort was addressed in a decision of an Ontario court. The court was clear that PRHTA also applies to human labour trafficking as well as sex trafficking and goes on to set out that employers that engage in labour trafficking are exploiting vulnerable people (like temporary foreign workers) and that these individuals will often not report abuse as they are fearful of what the employer may do and how this would affect their status in Canada. The judge set out that the tort will be found when an employer is exploiting a worker knowing that a reasonable person would feel threatened or scared that if they did not perform the labour or service that they would not be safe. However, the court dismissed Mr. Osmani’s claim for damages under the tort of human trafficking.
Finally, the court reviewed whether Mr. Osmani was constructively dismissed and entitled to reasonable notice despite his resignation. To remind our readers, constructive dismissal occurs when the employee’s fundamental terms of employment are changed unilaterally by the employer, if the employer evinces an intention to not be bound by fundamental terms or if the employee is subjected to some sort of illegal act such as harassment or a toxic work environment. In such instances, the employee is forced to leave their job without being directly fired or terminated by the employer. How the employee leaves the workplace is not crucial to the analysis of what is a constructive dismissal. What is crucial is that the employee’s employment will usually be impacted to the point where it would be unreasonable to stay or to accept the fundamental changes in their employment. Once the constructive dismissal occurs, the employee may treat the employment agreement to be at an end and is therefore entitled to damages in lieu of notice.
The court agreed that Mr. Osmani was constructively dismissed. The court held that Universal did not intend to be bound by the employment agreement as Universal had failed to respond to Mr. Osmani’s complaints about Mr. De-Almeida’s conduct, failed to properly attend to him from his fall and attempted to discourage him from pursuing a WSIB claim and once he returned to work, Universal placed Mr. Osmani back with Mr. De-Almeida. The court did not accept Mr. Osmani’s resignation letter as evidence that Mr. Osmani simply quit his employment. The court found that he was entitled to a four (4) month notice period given the Bardal factors less mitigation. The court also awarded Mr. Osmani unpaid wages.
The court went on to assess Mr. Osmani’s claim for moral damages. To remind our readers, moral damages (also called aggravated damages) may be claimed by a dismissed employee when the employer breaches their obligation of good faith and fair dealing in the manner of the dismissal. Please read our blog What Are Moral Damages? for more information about moral damages. The court held in this case that Mr. Osmani was entitled to moral damages in the amount of $75,000. Universal had done little to end Mr. De-Almeida’s abusive behaviour and conducted an insufficient investigation into the matter and failed to enforce workplace policies which were “designed to protect employees.” It also interfered with Mr. Osmani’s WSIB claim. All these issues had caused Mr. Osmani significant mental distress and loss of dignity and, as such, the court found that Mr. Osmani was owed moral damages.
The court also found that punitive damages were appropriate and awarded Mr. Osmani $25,000 in punitive damages. Again, to remind our readers, punitive damages are distinct from moral and aggravated damages. Punitive damages are meant to punish the party that has typically acted in a manner that is reprehensible and malicious. Further, the party must be able to show that the employer had committed an actionable independent wrong. The court held that the summary of Universal’s failing with respect to moral damages can be adopted with respect to punitive damages and that Universal engaged in sufficiently reprehensible conduct to warrant punitive damages.
Finally, the court also found that there were violations in Ontario’s Human Rights Code and held that those damages to be $50,000 against Universal. The court went on to note that at arriving at that figure, Mr. Osmani was a vulnerable employee whose stay in Canada was connected to his employment. He had to endure degrading behaviour by Mr. De-Almeida and Universal did very little to prevent this abuse and reprehensible behaviour by Mr. De-Almeida directed toward Mr. Osmani, which lasted for more than a year.
Employers can use this case as an example of what not to do. Firstly, an employer needs to actually act when an employee advises that they have been subjected to abusive behaviour. The employer needs to engage in a proper investigation of that matter and if abuse is found, the employer needs to protect the employee. If the employer fails to do so, then the employee may claim against them moral and punitive damages along with damages for humans rights and notice of termination.
It is also a good reminder that supervisors, managers, or bosses may also be held personally liable in certain contexts along with the employer. Supervisors, managers or bosses may be held liable personally for some or all of the claimed damages by an employee related to that supervisor’s bad behaviour.
Finally, it is now clear that the tort for human trafficking in the labour context is on the table in certain circumstances. Employers need to be careful about some employees that they may be employing in an especially vulnerable position, such as temporary foreign workers, where their stay in Canada is tied to their work. If these employees experience workplace harassment or abuse, they may claim this tort against their employer. It is essential that these employers ensure that their vulnerable employees in these contexts are protected so that they do not feel exploited or believe that their position or safety would be at issue if they fail to perform the work or labour for the employer.