In T.L. v. Ottawa Police Services et al., the Superior Court found that a plaintiff’s action could not shelter within the s. 16(1)(h.1) exception to the application of the limitation period because the defendant did not owe her a private law duty. It contains a useful summary of the application of s. 16(1)(h)(1.3):
[6] However, the plaintiff submits this is a proceeding based on a sexual assault and accordingly she is entitled to rely on section 16 of the Limitations Act, which provides there is no limitation period for such claims. Sec. 16 provides:
No limitation period
16 (1) There is no limitation period in respect of,
…
(h) a proceeding based on a sexual assault;
(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the misconduct:
(i) the other person had charge of the person with the claim,
(ii) the other person was in a position of trust or authority in relation to the person with the claim,
(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;
(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:
(i) they had an intimate relationship,
(ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;
(1.3) For greater certainty, clauses (1) (h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability. 2016, c. 2, Sched. 2, s. 4 (2).
[7] The OPS submits that the claim against them is not the type of claim enumerated in section 16 of the Limitations Act for which there is no limitation period, more specifically, the claim as against the OPS is not a claim of sexual assault as it relates to them (subparagraph (h)) nor is it a claim involving sexual misconduct with a minor as the Ottawa Police are not “the person who committed the misconduct” (subparagraph (h.1).
[8] The Plaintiff seeks a much broader interpretation of section 16. The plaintiff’s submission is this is “a proceeding based on a sexual assault” within the literal meaning of sec. 16(1)(h). It is also said that upon reviewing subsections (h.1) and (h.2), and particularly subparagraph 1(1.3), it can be seen that the investigating officer, the defendant Keith Patrick, falls within those provisions which are not limited to the actual perpetrator of the sexual assault.
[9] In my view sub-paragraph (1.3) clarifies that section 16 of the Limitations Act is not limited to proceedings against only the perpetrator of the sexual assault. The reference to vicarious liability makes this clear. A perpetrator can not be vicariously liable for his own conduct. The no limitation provision in section 16 is intended to include actions against third parties. The question to be answered is whether the non-perpetrator defendant was vicariously liable for the acts of the perpetrator who committed the sexual assault or owed a fiduciary duty to the victim or a duty of care in tort.
[10] Section 16 of the Limitations Act was considered in the case of Fox v. Narine, 2016 ONSC 6499 in which a resident of the defendant, which operated a shelter for battered women, was sexually assaulted by a person who gained unlawful entry to the premises. The resident subsequently died in circumstances unrelated to this event, but her estate pursued an action against the defendant for negligence in failing to provide adequate security in the residence. The plaintiff’s estate began the action more than two years after the event, creating limitation issues under both the Limitations Act and the Trustee Act. The Court held that the estate was entitled to rely on the ‘no limitation’ provision in section 16 of the Limitations Act in its negligence claim against the defendant. Justice Lederer stated at para. 8:
Neither party disputed the idea that this sub-clause [s.16(1.3)] was pointed at parties other than the perpetrator. A sexual assault is a criminal act. It cannot reasonably be proposed that before a person who carries out such an act can be civilly liable, he or she must have been negligent, in a fiduciary relationship with the victim, or owed the victim a duty. A perpetrator is directly involved and so cannot be vicariously liable for his or her own acts. It is when a third party stands in such a relationship to the victim that s. 16(1)(h) is extended such that there is no limitation period that applies. Thus, the question is whether the defendant, … was vicariously liable for the acts of the person who committed the assault, was in a fiduciary relationship with the victim…, or owed her a duty of care or any other duty.
[11] To summarize on the Limitations issue, I hold that the plaintiff would be entitled to rely on the no limitation provision in sec. 16 of the Limitations Act, if she is able to establish that she was owed a common law duty of care by the defendant Cst. Patrick in the circumstances of this case, that is to say, in the investigation he carried out. With respect to the OPS, it would be vicariously liable for any breaches of duty committed by Cst. Patrick or other actionable conduct on his part. It is therefore first necessary to determine the other issue on this motion, which is whether the law recognizes a common law duty of care owed to the plaintiff with respect to the criminal investigation carried out in relation to her sexual assault complaint.
[27] In the present case, the plaintiff asserts a claim against the investigating officer for negligence in the investigation of her sexual assault complaint and against the OPS for failing to ensure the officer carried out his duties under the Police Services Act. It is pleaded that this resulted in a delay in the prosecution of the perpetrator (the defendant Lance), which caused the plaintiff mental distress and contributed to serious personal problems which arose during her adolescent years. For the foregoing reasons I find the investigating officer and the OPS did not owe the plaintiff a private law duty of care in this investigation. It follows that it is clear and obvious the plaintiff’s claim can not succeed and it is also statute barred as the plaintiff is not, in the absence of a legally recognized duty, entitled to rely on sec. 16 of the Limitations Act.
