Sex work is work. And selling sex isn’t a crime in Canada. But, if paying for the services of a sex worker is a crime, can sex workers turn to the courts when their bills go unpaid? A recent court case in Nova Scotia says sex workers can sue if a client fails to pay their agreed-upon rate for services rendered.
Sex work lawsuit in Sheehan v Samuelson
A Nova Scotian Sex Worker agreed with a client to provide companionship and sexual services at a rate of $300 per hour. After 7 hours, he paid her just $300 instead of the $2,100 owed. She then took the unusual step of suing her client.
In response, he argued that their agreement was an “illegal contract for sexual services” because purchasing sexual services continues to be a crime. In other words, he said that the court couldn’t uphold a contract to break the law.
The plaintiff disagreed. She argued that if selling sex is legal, then sex workers need to have legal recourse when clients don’t pay. In addition, she argued that it wasn’t equitable for the defendant to use her services without compensation. After all, she could have worked for another, paying client at that time!
The judge agreed. He considered the fact that the Supreme Court of Canada’s Bedford decision and, subsequently, Bill C-36, decriminalized the sale of sex in order to protect sex workers from exploitation and harm. He wrote:
“It follows if the work is legal and if the business arrangements supporting the work are legal, then normal commercial law benefits, afforded by civil law, should be available to sex workers. Arrangements between a sex worker and a client are contractual. The worker offers a service. The client agrees to pay for that service. The remuneration is payable by clients under the terms of that contract. It thus follows that to allow a sex worker to pursue a business and not to allow that worker, as a business enterprise, to have access to a civil claim in contract, in the event the client breaches the contract, is logically inconsistent. 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.” (emphasis added)
The judge held that not permitting sex workers to sue would contribute to their exploitation.
He also noted that sex workers, like other business owners, collect and remit HST, pay income tax, and can be legally responsible if they fail to pay these amounts to the government. He didn’t think it was fair for sex workers to be sued in relation to their work if they could not sue in relation to their work.
The court compared the defendant’s argument that a sex worker’s contract shouldn’t be enforceable to an employer’s argument that it shouldn’t have to pay an employee who lacked a work permit. The law does not make every “illegal” contract completely unenforceable. Instead, it looks at issues of fairness, power, and the goals of relevant legislation.
The client was ordered to pay the worker her outstanding fees plus interests and a portion of her legal fees.
Good news for sex workers
This is good news for sex workers. While it won’t always make business sense to sue a non-paying client, it is important to have the option. This decision serves as a warning to unscrupulous clients that sex workers have the same options as other service providers. However, the Defendant’s arguments –and the rarity of cases like this – remind us just how far there is to go before sex work is actually treated like other work.
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