Can a sex worker sue for breach of contract to recover unpaid fees from a client? The Small Claims Court of Nova Scotia has provided an answer in what is the first case in Canada where a person sued on a contract for sexual services. Here is a summary of Sheehan v. Samuelson, 2023 NSSM 27.
Facts
The contract dispute was between the Claimant, Sheehan, a 23-year-old sex worker and peer support counselor, and the Defendant, Samuelson, who was her client. Sheehan charged $2,100 for her services, but Samuelson only paid her $300 and refused to pay the remaining amount.
Samuelson had contacted Sheehan through the LeoList messaging platform, a website commonly used by sex workers and their clients. They agreed on an outcall service where Sheehan would go to Samuelson’s apartment for an hourly rate of $300, plus transportation costs.
Sheehan stayed with Samuelson until the morning, engaging in various sexual activities. After waking up, Samuelson gave Sheehan his bank card to withdraw the payment from an ATM, but it didn’t work. Samuelson then promised to unlock it and send her the payment through PayPal. Over the course of several exchanges, Sheehan expressed her concern about being ripped off and threatened to involve law enforcement if payment was not made within 12 hours. Samuelson eventually sent her $300 via PayPal. However, Sheehan did not receive any second payment.
The ultimate question for the court was whether there was a binding contract between the parties and, if so, what remedy is owed to Sheehan.
Law
The court acknowledged the well-established law that enforceable contracts require an offer, acceptance, and consideration. Using those criteria, an enforceable contract would clearly be made between Sheehan and Samuelson. Sheehan’s offer for services was accepted by Samuelson by promising to pay and arranging transportation. The consideration would be Samuelson’s promise to pay Sheehan’s hourly rate.
However, a complicating element of the contract is the common law concept of “illegality,” which states that a contract to commit a criminal offense is illegal and unenforceable. Samuelson argued that a contract for sex work would be void for illegality, relying on Section 286.1 of the Criminal Code of Canada, which states that it is an offense to “obtain for consideration…the sexual services of a person.”
As noted by the court, Section 286.1 was adopted as a response by Parliament to the Supreme Court of Canada’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72 (Bedford), which struck down then-existing provisions of the Criminal Code dealing with prostitution. The government’s adoption of Section 286.1 aimed to protect sex workers from exploitation while prohibiting clients from purchasing sexual services. The legislation aimed to minimize risks by removing criminal penalties for those who support sex workers in a non-exploitative manner, such as drivers and security personnel. Additionally, the Bedford court “started from the principle that selling sex for financial gain is not illegal” (Bedford, at para. 1).
The Decision
Adjudicator Pink determined that the contract between Sheehan and Samuelson should be enforceable based on the public policy considerations outlined in the Bedford decision and the Government of Canada’s explanation of Section 286.1.
The court emphasized that sex work itself is not illegal, and the legislative amendments in response to Bedford were enacted to protect sex workers from exploitation, including the commercial exploitation of those who refuse to pay for services that were willingly agreed upon. Moreover, other legislation, such as the Excise and Income Tax Acts, applies to sex workers, indicating their recognition as legitimate economic actors.
Ultimately for Adjudicator Pink, business arrangements between sex workers and clients are considered contractual, where the worker offers a service and the client agrees to pay for it. If the client breaches the contract, it is logically inconsistent to deny sex workers the ability to pursue civil claims in contract law. Denying them this right would not be in the public interest and would undermine the legitimacy of the law as it would prevent recovery for breaches of contract in a legal industry.
In this case, Samuelson voluntarily initiated contact with Sheehan and procured her services, agreeing to pay for them. Even after receiving the services, he expressed his intention to make the payment. Given these factors and the broader public policy goal of not contributing to the exploitation of sex workers, the court held that sex workers should have access to the civil courts to pursue their claims, even if the contract may be illegal for people like Samuelson.
Therefore, the contract between the parties, despite its potential illegality for Samuelson, was found to be enforceable. Sheehan has the ability to pursue a claim for breach.
Conclusion
There was a contract between the parties which was breached. The court ordered Samuelson to pay $1,800 (the difference between the value of Sheehan’s services—$2,100—and the $300 she already received), plus interest of 4% for 14 months.