Temporary foreign worker awarded $300,000 for workplace abuse, but denied tort of labour trafficking

Osmani argued that the employer USRL directly, and vicariously through his supervisor, exploited his position of vulnerability as a TFW and therefore subjected him to “labour trafficking.”

Although most think of the tort of trafficking as sex trafficking, it also applies to human labour trafficking, according to the PRHTA.

Justice Joseph Di Luca referred to several background reports that explained that human labour 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.

“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,” says Fasken DuMoulin LLP lawyer Gillian Round. “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.”

Osmani’s lawyer, Filomena Kandola, said in an email that the case is not yet closed, as there is still the question of costs to be decided. Justice Di Luca wrote that as Osmani was mainly successful in this action, with awards of almost $300,000, he is “presumptively entitled to his costs.” But both parties can make written costs submissions. Kandola is hopeful the judge will release a costs award in mid-to-late February. She also said there is still the possibility that either party may appeal the decision.

Osmani, born in Albania, came to Canada in 2017 and was hired “off the books” as a labourer for USRL in 2018. This was after meeting De-Almeida, who helped him find employment. After he obtained TFW status in 2019, Osmani continued to work for the company, but he quit at the end of February 2020.

Osmani claimed interference with his ability to obtain compensation from the Workplace Safety and Insurance Board (WSIB) following a work-related injury after falling from a ladder. Upon returning to work, he claimed the conditions were intolerable and that he was constructively dismissed.

Fear of exposing supervisor, employer for fear of retribution

The plaintiff testified at trial that he quit because “there was no place” for him at the company. “He could no longer take how he was being treated and was worried about what might happen to him next,” Justice Di Luca wrote in his decision. “The dynamic had soured. He [Osmani] had been punched in the testicle and then [on another occasion] left on the ground for hours after falling from a ladder.” In cross-examination, Osmani agreed that despite these feelings, he never complained in writing about his treatment at the hands of De-Almeida for fear of retribution.

In support of his human trafficking argument, Osmani claimed he was forced to pay his work permit fee; received cash wages that were lower than the amount agreed upon; was required to pay back $2 per hour for hours worked; was directed on how to deal with his WSIB claim; and quit a “toxic environment under an abusive supervisor.” The plaintiff also alleged exploitation when he did renovation work at the supervisor’s house without being paid.

Osmani stated 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.

He also argued that the supervisor exercised control, direction, and influence over his movements to facilitate his exploitation concerning renovation work performed for free at the supervisor’s house.

Judge awards almost $300,000 in damages

Justice Di Luca ruled in favour of Osmani in several claims for damages against his employer, including constructive dismissal due to acts that poisoned his workplace and made him perform duties beyond his capabilities upon his return to work after a work-related injury.

The court was satisfied that the employee established most of his claims and held the supervisor and the company liable. (You can read more on our sister publication HR Reporter) Osmani was awarded general and aggravated damages of $100,000, jointly, and severally, between the defendants for the tort of battery and punitive damages of $25,000 against De-Almeida alone.

Osmani was also awarded general damages of $10,000 for the tort of assault, jointly and severally between the defendants, and $50,000 in damages against USRL for violations of the Human Rights Code.

For wrongful dismissal, Justice Di Luca awarded damages of $4,364, equal to four months’ wages, less applicable mitigation, aggravated damages of $75,000, and punitive damages of $25,000. The judge also awarded unpaid wages of $5,794.

However, Justice Di Luca denied Osmani’s claim for $100,000 in damages for the tort of human trafficking under the Prevention of and Remedies for Human Trafficking Act.

Claim of human labour trafficking denied

In his reasons, Justice Di Luca wrote that the tort of human trafficking is established if a person exercised control, direction, or influence over a complainant’s movements to exploit them or facilitate their exploitation, knowing that their actions would cause a reasonable person in the complainant’s position fear for their safety if they failed to provide labour or service.

Justice Di Luca ruled that he was satisfied Osmani’s movements “were controlled, directed or influenced,” and that any “request” to assist with renovations at the supervisor’s home “amounts to a direction” by the supervisor for Osmani to perform labour at his home. But the “key issue” in considering the tort of human trafficking in a labour context is whether the supervisor was exploiting Osmani “as that term is understood in the Criminal Code.” His reasons for denying the human trafficking tort included the following:

• Osmani was a paid employee of the employer;
• His 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; and
• None of the employer’s actions could reasonably cause a in person Osmani's position to fear their safety if they failed to provide labour or services for the employer.

Justice Di Luca wrote: “When I consider the effect of the broader pattern of comments by Mr. De-Almeida . . . I am not prepared to find that they support an inference that Mr. De-Almeida’s purpose in making the direction was exploitative.” The judge also accepted testimony that De-Almeida viewed the renovation work done by Osmani for no pay as “a favour that was owed to him.” It was not an instance where the supervisor “explicitly or implicitly sent the message to Mr. Osmani . . . that his safety would be at risk unless he helped out with the renovations.”

However, the judged ruled that not acting with an exploitative purpose “does not mean that he [De-Almeida] acted appropriately.” On the contrary, he “took advantage of his position as Osmani’s immediate boss.” According to Osmani, he obtained free labour that was worth approximately $16,500. Even assuming Osmani acted out of a desire to repay a favour, De-Almeida “came out far ahead.”

Legislators envisioned the PRHTA to apply to instances of labour trafficking, not just sex trafficking, Justice Di Luca said. This point “was made clear” when the Ontario legislature debated the PRHTA, he wrote, noting that former Ontario Liberal MPP Nathalie Des Rosiers said at the time the law “aims both to deter human trafficking of young people to the sex trade or prostitution [and] protect people who are being trafficked in what we call labour human trafficking.”

Des Rosiers said migrant workers and temporary foreign workers are particularly at risk in this understanding of trafficking, as they may have been “lured by promises of big payouts” and then put in “dire circumstances where their right to health and safety is being breached as well as their right to get paid for the work that they have done.” These workers can also be “shipped around so that they are unable to escape the trafficker’s grasp.”

Takeaway for employers

Rhonda Levy, a lawyer with Littler Mendelson P.C., says that although Osmani was unable to persuade the court that he had a claim for the statutory tort of human trafficking in the context of human labour 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.

She added: “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.”