With the recent high-profile acquittal of Jian Ghomeshi in respect of various sexual assault and related criminal charges, there has been significant media attention over the challenges faced by sexual assault survivors in advancing claims in the courts.
There is no question that sexual assault claims, in the absence of physical evidence, are difficult to prosecute in the criminal courts where the Crown must prove guilt “beyond a reasonable doubt”. This is contrasted with the “balance of probabilities” standard of proof that applies to civil claims, which requires that litigants prove their claims on a “more likely that not” standard, which is significantly lower than the standard that applies in criminal cases.
While it is not known whether the complainants in the Ghomeshi case intend to pursue civil charges, they retain the right to do so, despite Mr. Ghomeshi’s acquittal in the criminal court. A recent legislative change will reduce one potential barrier to their claims, which may have existed.
On March 9, 2016, the Ontario Limitations Act was amended to remove all limitation periods for civil claims “based on sexual assault”.
This is an important development as it is well accepted that sexual assault survivors may take many years to come forward with their claims for a variety of reasons, which may include misplaced guilt and shame, suppressed memory and a desire to not revisit horrendous acts that may have been perpetrated by friends and family members.
The Limitations Act places time limits by which litigants must bring forward their claims. The standard limitation period in Ontario is 2 years from the date that the cause of action arose (though this date can sometimes be extended depending on when the cause of action was “discovered”, in circumstances where the components of a cause of action are not immediately known). Significantly, once a limitation period expires, a litigant is forever barred from advancing their claim.
Prior to the recent amendments, under the current Ontario Limitations Act, which has been in force since January 1, 2004, there were some exceptions to limitation periods for sexual assault claims. These exceptions were dependent on the relationship between the perpetrator and the victim and were typically restricted to acts which took place within the context of relationships of trust and authority. Thus, the exceptions would not likely apply to random acts or claims advanced against employers where an act was committed by one of its employees.
The scope of these exceptions was both limited and not always entirely clear. This inevitably led to defendants relying on limitation period defenses, which in some cases brought an end to potentially meritorious claims and in other cases added additional stress to plaintiffs in pursuing their claims. The possibility of a limitation defense also forced cautious lawyers to encourage victims to bring forward their claims as soon as possible to avoid limitation type of defenses, even where exceptions might exist.
The change to the legislation makes it crystal clear that sexual assault victims can proceed with their civil claims on their own terms. Moreover, these changes apply retroactively meaning that they apply regardless of when the act occurred and even if a former limitation period had already expired.
Also, there has been an amendment to the Compensation for Victims of Crime Act (CVCA), which provides an alternative compensation framework for victims who may not advance civil claims. The CVCA has a process for victims of crime to advance claims to the Criminal Injuries Compensation Board (CIBC), which may award victims up to $25,000.00 under various headings of damages, including pain and suffering. Notably, a criminal conviction is not required in order to apply to the CICB. The CVCA has, like the Limitations Act, been amended such that there is no longer any limitation period with respect to applications to the CICB for claims of sexual violence.
The decision to proceed with a civil sexual assault claim is deeply personal and requires victims to consider many factors. Fortunately, victims will no longer need to make that decision against the backdrop of a ticking limitation period.