Can a Sex Worker Sue in Small Claims Court for unpaid services?
Lessons from Sheehan v. Samuelson
By Julian Castillo Nunez
March 10, 2025
A striking case in the Small Claims Court of Nova Scotia recently caught my attention: Sheehan v. Samuelson, 2023 NSSM 27 (CanLII). This case is particularly intriguing as it delves into the enforceability of contracts involving the sale of sexual services under the framework of Bill C-36, the Protection of Communities and Exploited Persons Act. The decision raises important questions about the intersection of contract law, public policy, and the rights of sex workers.
The Legal Context of Bill C-36
At its core, Bill C-36 is grounded in an abolitionist philosophy regarding prostitution. The legislators' intent is clear: prostitution is viewed as a social harm that must be curtailed. The Technical Paper for Bill C-36 (Department of Justice Canada, 2014) explicitly states that its objective is "to reduce the demand for prostitution with a view to discouraging entry into it, deterring participation in it and ultimately abolishing it to the greatest extent possible" (p. 3).
Rather than treating sex work as legitimate labor, the law frames it as a form of exploitation that disproportionately affects women and girls. It asserts that prostitution is rooted in patriarchal structures that perpetuate gender inequality:
“Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. [...] Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls.” (Technical Paper for Bill C-36, p. 4)
Consequently, the law aims to shield sex workers from criminal prosecution for selling their own services while penalizing those who purchase such services or profit from the industry in any capacity. The rationale is that sex workers are victims who require protection, not punishment (Technical Paper for Bill C-36, p. 9).
Illegal Contracts
In Sheehan v. Samuelson, the adjudicator, Adjudicator Pink, ruled in favor of Sheehan, a sex worker, ordering Samuelson to pay the outstanding amount for services rendered. This decision was based on a flexible interpretation of the enforceability of an illegal contract. The reasoning aligned with the broader purpose of Bill C-36: denying sex workers access to justice in cases of non-payment would exacerbate their vulnerability and exploitation.
While Adjudicator Pink recognized the need to grant legitimacy to the claim, as we know, illegal contracts are unenforceable.
A part of the reasoning adopted in this case included reference to the application of a principled approach to recovery in tort, as it respects the implications of illegal conduct which has been considered by the Supreme Court of Canada in Hall v. Herbert [1993] SCR 159. Adjudicator Pink pointed out that at page 169 of this case, “Justice McLaughlin noted the duty of the courts to preserve the integrity of the legal system so that only in limited circumstances should recovery be barred in the face of illegality.”
Adjudicator Pink further reasoned that: “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.”
Facts such as those presented within this case therefore required considerations beyond strict contract law principles. Sex work itself is not legal. What is legal is that a sex worker can sell their own services without criminal liability. However, a transaction involving prostitution constitutes an offense (Technical Paper for Bill C-36, p. 5). The distinction is crucial. This contract could be reasoned as valid despite its apparent illegality not because sex work is lawful, but because denying legal recourse would contradict the law’s purpose and reinforce sex workers’ vulnerability.
In Sheehan v. Samuelson, Samuelson initially agreed to pay but later exploited the illegal nature of the transaction to evade his obligations.
Conclusion
Given this case, the short answer to the question of whether a sex worker can sue in small claims for unpaid services, appears to be a yes. There is that possibility. It’s important to note that this case is merely persuasive. It remains to be seen whether the Courts in Ontario will adopt a similar reasoning.
This case further serves as a crucial reminder that contract law should not operate in isolation. When dealing with legal claims involving marginalized individuals, a nuanced and socially informed approach can be adopted to achieve justice.
References:
• Sheehan v. Samuelson, 2023 NSSM 27 (CanLII)
• Whiten v. Pilot Insurance Co., 2002 SCC 18 (CanLII), [2002] 1 SCR 595
• Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130
• Department of Justice Canada. (2014). Technical Paper: Bill C-36 Protection of Communities and Exploited Persons Act.
Julian Castillo Nunez
Tel. 437-523-7527
Comentarios