Former sex worker's victory in small claims court sets precedent, lawyer says

A former sex worker in Nova Scotia has successfully sued a client in small claims court for non-payment of services. She and her advocates hope the decision will change the legal landscape for sex work in Canada.

The case relates to an incident in January 2022 when Brogan, whom CBC News is only identifying by her first name because she is a survivor of human trafficking, spent an evening with a client.

Afterward, the client refused to pay the agreed-upon fee.

Brogan then turned to small claims court to recover the money — in what advocates believe is the first time such a case has come before the courts in Canada — and won a judgment that she was entitled to the unpaid amount, plus interest and costs.

"It kind of opens the doors and sets the tone," says Brogan, who is now working as a peer support worker. "Any steps towards having more rights and it be recognized as work — I think is a huge positive."

The decision, advocates say, could create a new avenue for sex workers to protect their rights.

"There were lots of people — friends, people I would talk to, other clients I would meet — so many people told me, 'you don't know what you're talking about,' or 'you're crazy to think that this could possibly happen,'" Brogan said. "I don't think the gravity of it all has hit me yet."

'All the hallmarks of an enforceable contract'

Brogan met the client in question, Bradley Samuelson, through a website called LeoList that's used by sex workers and their clients. After some discussion about rates and services, Brogan travelled to Samuelson's apartment, where she spent the evening.

The next day, Brogan tried to withdraw the $2,100 she was owed, using a bank card Samuelson had given her. But the PIN didn't work. While her repeated messages to Samuelson eventually yielded $300, she soon realized she wasn't going to be paid the remaining $1,800.

"There was offer, there was an acceptance of the offer, there was certainty of terms, so all the hallmarks of an enforceable contract were there," said Jessica Rose, Brogan's lawyer.

But the central question in the case was whether contracts for sex work are enforceable — a question that relates to the legislation governing sex work in Canada. 

The Protection of Communities and Exploited Persons Act, which passed in 2014, is supposed to protect people from the risks involved in sex work. It amended the Criminal Code to remove the criminal penalty for individuals who sell their own sexual services, and eliminated criminal charges for those who support sex workers, such as drivers or security personnel.

But aspects of that work remained criminalized, including the purchase of services.

In this case, the defendant argued that contracts for sexual services were not enforceable because you could not have a contract in which one party — in this case, the client — had to do something illegal.

Benefits of commercial law apply

But in his decision (which was released in April but has been under publication ban until now), adjudicator Darrel Pink concluded that because sex work is legal and the business arrangements supporting sex work are legal, it follows that the benefits of commercial law apply, including access to a civil claim — the same as any other service provider.

"Not allowing recovery would not be in the public interest and may bring the law into disrepute as it would preclude recovery for breach of contract for services that are perfectly legal for the provider of the services to perform," he wrote.

In the claim, advocates argued that there are a range of considerations courts can take into account when choosing to enforce a contract, and because the intent of the legislation is to protect sex workers from harm there is a legal avenue for contracts to be upheld.

Pink accepted that failing to enforce the contract would undermine public policy aimed at protecting sex workers.  

"Failure of the court to provide a remedy for a wrong or a breach of duty owed by a client would contribute to the very exploitation the legislation was designed to prevent," he wrote.

But Rose said the fact that the claim had to be brought at all shows the limits of the legislation as it's currently written.

"[The act] left such confusion about the economic rights of sex workers that we had to argue about it in court, instead of being able to just point to a specific provision in the legislation," said Rose.

"I think we've lost this piece around sex workers as just needing to have those basic benefits that other workers have. So I am hopeful that this case brings that general question around economic rights of sex workers more into the forefront."

'Payment is very, very challenging'

Advocates say this gap means theft of services is a significant problem. 

A sex worker who offers paid companionship services under the name Valerie, to protect herself against harassment, said non-payment is a "huge" issue, and that it's not unusual for people to procure services from sex workers without ever having the intention of paying.

"The law that stands today actually promotes non-payment. Because if you go there, and he pays you, he's done something illegal."

Valerie said the issue of non-payment is getting worse, in part because texting apps and other technology make it easier for clients to conceal their identities, requiring her to constantly be on high alert for clients who are at risk of not paying.

"To my mind, this job has to be fully legal, because you need to be able to enforce payments," she said. "Payment is very, very challenging in this job."

Jenn Clamen, national co-ordinator with the Canadian Alliance for Sex Work Law Reform, said the criminalization of sex work makes it challenging to improve working conditions. That's because sex work is presented as exploitation rather than a form of employment where labour abuses or theft of services can happen.

The Canadian Alliance for Sex Work Law Reform is mounting a constitutional challenge of the Protection of Communities and Exploited Persons Act, as part of a group of organizations that represent thousands of sex workers across the country. 

In 2021, the alliance sued the federal and Ontario provincial governments, arguing that the conditions of criminalization allow exploitation to flourish. That case had its first hearing in October 2022, and is awaiting a judgment. If successful, it could result in the law being struck down, paving the path to full decriminalization of sex work. 

Clamen said it's not surprising that Samuelson's defence in Brogan's case hinged on lack of contract, and said this situation is a good example of why the law needs to change.

"We just need to recognize that the conditions of criminalization really allow for exploitation of all sorts to flourish, and undermine a sex workers' human rights," she said.

Potential benefit for other sex workers

Emma Halpern, executive director of the Elizabeth Fry Society of Mainland Nova Scotia, supported Brogan's claim. She said she hopes Brogran's victory will be considered by policymakers as they contemplate a new regulatory regime for sex work in Canada.

But part of the immediate significance of the judgment, advocates say, is that it happened in a court that's relatively accessible; the law has been clarified that at the small-claims level, a contract for sexual services is enforceable.

That means that a sex worker who hasn't been paid by a client can now pursue that in small claims court without having to argue the law, so long as they have the supporting facts.

"Now they can bring this judgment and put it on the judges desk and say, 'here it is, there's precedent for it; I want my judgment,'" said Rose.

Halpern said she and Brogan have already discussed offering workshops for sex workers, laying out how they can use the small claims system to pursue payment. 

She also said Brogan should be recognized for bringing forward a case, despite the potential stigma, that could help set out a safer system for sex workers by addressing the financial vulnerabilities that contribute to exploitation.

"It's an issue that I've heard of in my work for many years. There is a vulnerability because of the nature of the work," she said. "So even just the decision itself is empowering others to feel like they can stand up for their rights. And Brogan should feel very proud because that is a change that she's been able to bring not just for herself, but for others."

As for Brogan — who received the money she was owed in the wake of the decision — she said she hopes that clarifying some of the rules around sex work will make it easier for sex workers to put in place additional forms of protection, like unions. 

"There are so many doors that are open, and what's legal and what's not legal really does look a little bit different after the decision, based on [sex work] being an actual form of employment," she said. "Nobody has really been able to do that before."