This is indeed interesting, for a host of reasons. To speak to Ken’s question first, the “per se” language in s 16(2) is like that used in the handful
of provincial acts in Canada that create a statutory tort for invasion of privacy. For example, British Columbia’s
Privacy Act begins by saying that “It is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the
privacy of another.” It seems to me that this language would speak not only to Ken’s point about punitive damages, but to the other relief contemplated in the bill, such as an accounting or an injunction. And, yes, I would think emotional harm should fall
under the compass of the legislation.
But there are two other things about this bill that interest me even more. The first is the emphasis on preventing harm, as reflected in the bill’s
title and the extensive sections on restraining orders. It is refreshing to see attempts at using statutory law in a preventive or proactive way, and not just to create rights, duties and offences. The second area of interest, and one peculiar to a federal
state like Canada, is the dance that this provincial legislation will have to do around the federal criminal law that touches on the same areas. Child pornography, for example, is very much the subject of federal criminal law, and though the term appears nowhere
in this bill, it was obviously very much on the drafters’ minds.
John Kleefeld
Associate Professor, College of Law
2017 Teaching Fellow, Gwenna Moss Centre for Teaching Effectiveness
University of Saskatchewan
15 Campus Drive
Saskatoon SK S7N 5A6
tel: (+1) 306.966.1039
email: john.kleefeld@usask.ca
skype: johnkleefeld
twitter: @johnkleefeld
web:
http://law.usask.ca/find-people/faculty/kleefeld-john.php
mission:
http://www.usask.ca/leadershipteam/documents/president/MissionVisionValues.pdf
Read my article, co-authored with former student Kate Rattray, on editing Wikipedia for law school credit:
http://ssrn.com/abstract=2729241.
And my tribute to Lord Atkin, “The Donoghue Diaries”:
https://ssrn.com/abstract=2470647.
Also, “Concurrent Fault at 90,” my book chapter in Quill & Friel’s
Damages and Compensation Culture: http://www.bloomsbury.com/au/damages-and-compensation-culture-9781849467971.
From:
Ken Oliphant <Ken.Oliphant@bristol.ac.uk>
Date: Tuesday, February 28, 2017 at 6:36 AM
To: Jason W Neyers <jneyers@uwo.ca>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>
Subject: Re: ODG: Tort of Human Trafficking
A very interesting development. Thanks both for bringing this to our attention.
One question: what losses is it envisaged that the trafficker might have to compensate? Would these extend to purely emotional harm?
Clause 16(2) ("The action may be brought without proof of damage") might I suppose provide a basis for the award of compensatory damages for such harm, but it could be there simply to provide a basis for the punitive damages mentioned in
cl 17(1)(a)
Ken
Ken Oliphant
Professor of Tort Law and LLM Programme Director
University of Bristol Law School
Wills Memorial Building
Queens Road
Bristol BS8 1RJ
Tel: +44 (0)117 954 5347
@KenOliphant
A top 5 UK university with leading employers (2015)
A top 5 UK university for research (2014 REF)
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On 27 February 2017 at 19:38, Jason W Neyers <jneyers@uwo.ca> wrote:
Dear Colleagues:
I post on behalf of Professor Ernerst Weinrib:
Participants in the Obligations Discussion Group might be interested in Bill 96, just introduced into the Ontario legislature last week. The bill creates a statutory tort for human trafficking.
Here's the news release: https://news.ontario.ca/owd/en/2017/02/strengthening-ontarios-human-trafficking-laws.html
Here's the bill:
http://www.ontla.on.ca/web/bills/bills_detail.do?locale=en&Intranet=&BillID=4513#Sched217
From the bill's explanatory note: Part III establishes a tort of human trafficking. A civil action may be brought by a victim of human trafficking against any person who engaged in the human trafficking, and no proof of damage is required. Section 17 sets out powers of the court and specific considerations respecting damages and other compensation in such an action.
Best wishes,
Ernest J. Weinrib
University Professor and
Cecil A. Wright Professor of Law
University of Toronto
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
