Overall a sensible approach: both the decision to include a statutory tort and the details – mainly recognising it as a tort per se and clarifying that account of profits accumulates to damages.

Few comments:

1. The UK Modern Slavery Act 2015 did not include a statutory tort despite attempts to introduce such a tort during the legislative process (‘Clause 34’). The Government’s position (as expressed by Lord Bates) was that there was no need for a new tort and that existing remedies (mainly the ability to claim aggravated damages) are sufficient.

2.  As list members are aware, new developments in England and Wales (mainly Gulati, which was discussed on the list) allow for damages that are based on the infringement itself as distinct from its consequences (such as emotional harm). This is, in my opinion, a tort per se, in all but name. The same approach was expressed, in the context of sex trafficking in a district court decision in Israel Plonit (K) v Jaack (whose result was upheld on appeal to the Supreme Court) that the damage ‘is ingrained in the defendant's actions themselves ‘ (my translation).

3. I have expressly argued in Sex Trafficking: A Private Law Response that damages and account of profits should accumulate since (and to the extent that) they remedy different wrongs and protect different interests. The High Court decision of AT v Dulghieru and Israeli case law, while inconclusive, support the accumulation thesis.

4. A question for Canadian colleagues: I don’t know whether victims or crime in Canada can receive compensation in the criminal process and what is the scope, if any, of criminal injuries compensation fund. Assuming that both exist, can we infer from S17(4) that the court will take into account only what was received in another civil proceeding, but not in criminal compensation?

5. Finally, a question for Ken: without being an expert on interpreting Ontario/Canada ‘per se’ language, it seems perfectly sensible that such language would not be limited to punitive damages. But practically does it matter at all? These offenses will seemingly allow punitive damages as a matter of course, through which all non pecuniary damages could be compensated (even if otherwise could not be awarded in the absence of proof) –no?

Best wishes,

Tsachi   

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

http://www.bristol.ac.uk/law/people/ken-a-oliphant/

@KenOliphant 

 

A top 5 UK university with leading employers (2015)

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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)

 

 

-- 
Professor Tsachi Keren-Paz
Research Director, School of Law
Keele University, Staffordshire, ST5 5BG, England
http://www.keele.ac.uk/law/staff/academicstaff/tsachikeren-paz/
SSRN author page: http://ssrn.com/author=348800 
Leverhulme Research Fellowship (2016-8): “Privacy law, gender justice and end users' liability: 'revenge porn' and beyond”
ESRC Seminar Series 2015-2017 ‘Liability v Innovation: Unpacking Key Connections’ https://liabilityinnovation.wordpress.com/
Office: CBC 2.015; Phone: 01782 734358
Email: t.keren-paz@keele.ac.uk