The former sex worker’s victory in small claims court sets a 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 lawyers 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 identifies only by her first name because she is a human trafficking survivor, spent an evening with a client.

Afterwards, the customer refused to pay the agreed fee.

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

“It sort of opens doors and sets the tone,” says Brogan, who now works as a peer supporter. “I find every step to get more rights and be recognized as work very positive.”

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

“There were a lot of people – friends, people I’d talk to, other clients I’d meet – so many people would say to me, ‘you don’t know what you’re talking about,’ or ‘you’re crazy to think this would could possibly happen,” Brogan said. “I don’t think the seriousness of all this has reached me yet.”

‘All the features of an enforceable contract’

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

The next day, Brogan attempted to withdraw the $2,100 she owed using a bank card Samuelson had given her. But the PIN didn’t work. Although her repeated messages to Samuelson eventually netted $300, she soon realized she wouldn’t get the remaining $1,800.

“There was an offer, there was an acceptance of the offer, there was certainty about the terms, so all the hallmarks of an enforceable contract were there,” said Jessica Rose, Brogan’s attorney.

But the central issue in the case was whether sex work contracts are enforceable — a question that pertains to the laws governing sex work in Canada.

The Law on the Protection of Communities and Exploited Persons, passed in 2014, aims to protect people from the risks of sex work. It amended the penal code to decriminalize sex work and abolished 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 sexual services contracts were unenforceable because you couldn’t have a contract that required one party—in this case, the client—to do something illegal.

Trade law benefits apply

But in his decision (released in April but hitherto under publication ban), juror Darrel Pink concluded that because sex work is legal and the business arrangements that support sex work are legal, it follows that the benefits of commercial law apply, including access to a civil claim — just like any other service provider.

“Not allowing recovery would not be in the public interest and may discredit the law as it would prevent recovery for breach of contract for services that are perfectly legal for the provider of the services to perform he wrote.

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

Pink accepted that failure to comply with the contract would undermine public policies protecting sex workers.

“The failure of the court to remedy a customer error or breach of duty would add to the very exploitation that the legislation was designed to prevent,” he wrote.

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

“[The act] created such confusion about sex workers’ economic rights that we had to discuss them in court, rather than just point to a specific provision in the law,” Rose said.

“I think we lost this piece about sex workers because we just need those basic benefits that other workers have. So I’m hopeful that this case brings that general question about sex workers’ economic rights more to the forefront.”

‘Paying is very, very challenging’

Proponents say this gap means service theft is a major problem.

A sex worker who offers paid companionship services under the name Valerie to protect herself from harassment said payment default is a “huge” problem and it’s not uncommon for people to take services from sex workers without ever intending to pay. .

“The law in effect today actually promotes non-payment. Because if you go there and he pays you, he’s done something illegal.”

Valerie said the problem of non-payment is getting worse, in part because texting apps and other technology make it easier for customers to hide their identities, forcing her to be on constant alert for customers who are at risk of not paying.

“In my opinion, this job should be completely legal because you have to be able to enforce payments,” she said. “Payment is very, very challenging in this job.”

Jenn Clamen, national coordinator of 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 exploitative rather than a form of employment that can involve abuse of labor or theft of services.

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

In 2021, the alliance sued Ontario’s federal and provincial governments, arguing that the terms of criminalization allow exploitation to flourish. That case had its first hearing in October 2022 and is awaiting a ruling. If successful, this could lead to the law being scrapped, paving the way for full decriminalization of sex work.

Clamen said it is not surprising that Samuelson’s defense in Brogan’s case hinged on the lack of contract, saying 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 all forms of exploitation and undermine the human rights of sex workers,” she said.

Potential benefit to 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 taken into consideration by policymakers as they consider a new regulatory regime for sex work in Canada.

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

That means a sex worker who wasn’t paid by a client can now challenge that in small claims court without having to defend the law, as long as they have the supporting facts.

“Now they can file this verdict and put it on the jury’s desk and say, ‘Here it is, there’s a precedent for it; I want my verdict,'” Rose said.

Halpern said she and Brogan have already discussed offering sex workers workshops, outlining how to use the small claims system to pursue payment.

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

“It’s a problem I’ve been hearing about in my job for years. There’s a vulnerability because of the nature of the job,” she said. “So just the decision itself makes others feel like they can stand up for their rights. And Brogan should be very proud, because that’s a change she’s been able to bring not only to herself, but to others as well.”

As for Brogan, who received the money owed to her in the wake of the decision, she said she hopes clarifying some rules around sex work will make it easier for sex workers to implement additional forms of protection, such as unions.

“There are so many doors that are open, and what’s legal and what’s not legal really looks a little bit different after the decision, based on [sex work] be a real form of work,” she said. “Nobody’s really been able to do that before.”