Ontario: the scope of the sexual assault/misconduct exceptions

Jane Doe v. Weinstein considers the scope of s. 16(h) and (h.1) of the Limitations Act, which provides that there is no limitation period in respect of a proceeding based on a sexual assault, and misconduct of a sexual nature:

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;

[…]

Same

(1.1) Clauses (1) (h), (h.1) and (h.2) apply to a proceeding whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period, subject to subsection (1.2). 2016, c. 2, Sched. 2, s. 4 (2).

[…]

Same

(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).

A defendant in Jane Doe argued that because the claims against her were not based on the sexual assaults themselves, they fell outside the scope of the s. 16(1)(h.1) exception.  The court rejected this argument:

[26]           With that context in mind, in my view the purpose of section 16 (1.3) is to ensure that, where a proceeding involves a claim for civil liability arising from or relating to a sexual assault, that proceeding cannot be barred by the Act. This encompasses proceedings against third parties (i.e. persons other than the perpetrator of the sexual assault) regardless of the nature of the claim, whether for breach of duty, vicarious liability or otherwise, provided that the connection with a sexual assault is established.

[27]           Viewed in this light, all of the claims against Schneeweiss fall within the umbrella of s. 16 (1.3). Although the claims against Schneeweiss are not for the sexual assaults themselves, they all involve civil liability for actions that relate directly to Weinstein’s sexual assaults on Doe. Schneeweiss is said to have facilitated the assaults, with knowledge, recklessness or indifference to the consequences for Doe. Thus all of the allegations against Schneeweiss in the Claim are “in relation to” Weinstein’s assaults and are not statute barred.

This is sensible and well-reasoned, and the construction of the provisions seems correct to me. I expect this will become a leading decision on the scope of the sexual misconduct exception,  Meanwhile, the context the court refers to is as follows:

[18]           The limitations issue raised by Schneeweiss turns on the proper interpretation of the phrase “in relation to the applicable act” in s. 16 (1.3). Are the claims against Schneeweiss claims “in relation to” the sexual assaults by Weinstein (in which case no limitations period would apply), or are they claims in relation to “other acts” (in which case they remain subject to the normal and ultimate limitation periods in the Act)?

[19]           Schneeweiss argues that the 2016 amendments to s. 16 are to be construed strictly because they create an exception to a general rule and have the effect of taking away an existing limitations defence which had already accrued to Schneeweiss. Schneeweiss argues that at least some of the claims against her, including claims for negligent failure to warn, negligent misrepresentation and negligent infliction of nervous shock, are not claims “in relation to sexual assault” since they are based on separate acts or breaches of duty by Schneeweiss.

[20]           The parties are agreed that the 2016 amendments to s. 16 have retroactive effect since s. 16 (1.1) expressly provides that the 2016 amendments apply to proceedings “whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period…”

[21]           Further, the parties are agreed, in accordance with the analysis of Lederer J. in Fox Estate v. Narine,[5] that s. 16 (1.3) encompasses proceedings against persons other than those who actually perpetrate sexual assaults. Lederer J. noted that s. 16 (1.3) references proceedings involving claims for negligence, breach of fiduciary duty or for vicarious liability. He reasoned that this must necessarily include proceedings involving third parties:

Neither party disputed the idea that this sub-clause 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.

[22]           In interpreting the scope of s. 16 (1.3), it is helpful to have reference to the context in which it was enacted as well as its legislative history. The preamble to Bill 132 (which added the new provisions to s. 16) notes that on March 6, 2015, the Government of Ontario announced “It’s Never Okay: An Action Plan to Stop Sexual Violence and Harassment” (the “Action Plan”). The preamble to Bill 132 further stated:

The Government will not tolerate sexual violence, sexual harassment or domestic violence. Protecting all Ontarians from their devastating impact is a top Government priority and is essential for the achievement of a fair and equitable society.

All Ontarians would benefit from living without the threat and experience of sexual violence, sexual harassment, domestic violence and other forms of abuse, and all Ontarians have a role to play in stopping them.

[23]           During the legislative debate on Bill 132, the Honourable Tracy MacCharles, the Minister Responsible for Women’s Issues, noted that s. 16 (1.3) had been added to the Bill in committee on the basis that the original draft “did not make it clear enough that there would be no limitation period for civil claims against institutional defendants.” The Minister indicated that she was “pleased that the committee passed amendments to make it absolutely clear that there will be no limitation period for civil claims against institutional claimants.” She further observed that “we believe that time should be on the side of the survivors, not the perpetrators. Survivors would be able to seek compensation regardless of when the crime occurred.”[6]

[24]           What this indicates, amongst other things, is that the amendments to the Limitations Act contained in Bill 132 are remedial, addressing broad systemic problems relating to sexual harassment and assault. Consistent with s. 64(1) of the Legislation Act, they “shall be interpreted as being remedial and be given such fair, large and liberal interpretation as best suits the attainment of its objects.”

[25]           I note that the wording of s. 16 (1.3) includes expansive language to the effect that the elimination of the limitations period for sexual assaults is “not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act”. The clear objective of this provision is to ensure that victims of sexual assault may pursue civil claims, not just against the perpetrators of the assaults but also against others who may be civilly liable in connection with the assaults, regardless of when the claim is commenced. Moreover, although Minister MacCharles referred in her remarks to claims against institutional defendants, the reference in s. 16 (1.3) to there being no limit “in any way with respect to the claims that may be made” indicates that claims may also be pursued against individuals who may be civilly liable in connection with a sexual assault.

 

 

 

Ontario: Amendments to the Limitations Act

Bill 132, which abolishes the limitation period for sexual assault, received royal assent on March 8.  These are the amendments it made to the Limitations Act:

SCHEDULE 2
LIMITATIONS ACT, 2002

  1. Subsection 7 (4) [incapable persons] of the Limitations Act, 2002 is repealed.
  2. Section 10 [assaults and sexual assaults] of the Act is repealed.
  3. Subsection 15 (5) [ultimate limitation period] of the Act is amended by striking out “Subject to section 10” at the beginning.
  4. (1)  Clause 16 (1) (h) [no limitation period for proceedings arising from sexual assault in certain circumstances] of the Act is repealed and the following substituted:

(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;

   (2)  Section 16 of the Act is amended by adding the following subsections:

Same

(1.1)  Clauses (1) (h), (h.1) and (h.2) apply to a proceeding whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period, subject to subsection (1.2).

Same

(1.2)  Subsection (1.1) applies to a proceeding that was commenced before the day subsection 4 (2) of Schedule 2 to theSexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 came into force, unless the proceeding,

(a)  was dismissed by a court and no further appeal is available; or

(b)  was settled by the parties and the settlement is legally binding.

Same

(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.

  1. (1)  Subsection 24 (2) [transition provisions] of the Act is amended by adding “Subject to subsection (2.1)” at the beginning.

   (2)  Section 24 of the Act is amended by adding the following subsection:

Exception

(2.1)  This section does not apply to a claim in respect of which clause 16 (1) (h), (h.1) or (h.2) applies.

   (3)  Subsection 24 (7) of the Act is repealed.

Commencement

  1. This Schedule comes into force on the day the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 receives Royal Assent.

 

We previously wrote about some of the potential issues arising from these amendments.

Ontario: Possible removal of limitation periods for sexual assault

Ontario is moving to abolish the limitation period for civil claims based on sexual assault and, in certain cases, non-sexual assault.

Tracy MacCharles, the Minister Responsible for Women’s Issues, introduced Bill 132, Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) for first reading on October 27, 2015.  It was accepted for further debate.

The act would repeal all existing provisions in the Limitations Act relating to sexual assault (primarily section 10), and add the following to section 16, which lists proceedings that have no limitation period:

Clause 16 (1) (h) of the Act is repealed and the following substituted:

  (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 a person who committed, contributed to, consented to or acquiesced in 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 a person who committed, contributed to, consented to or acquiesced in 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;

What’s most interesting, at least at this preliminary stage, is section 16(1)(h)(2).  The category of people in an intimate relationship that involves financial, emotional, physical, or other dependence is very broad.  Unless “dependence” is given a narrow meaning, it’s a category that could in theory include every romantic relationship.

You can follow the bill’s progress here.

 The Toronto Star published an article describing what the government intends the legislation to accomplish.

 

Ontario: no new limitation arguments on appeal

Whiteman v. Iamkhong is a reminder from the Court of Appeal that a party may not raise a new limitations argument on appeal.

The plaintiff appealed from the summary dismissal of his action based on the expiry of the limitation period.  On appeal, he argued that sections 10(1) and 16(1)(h) of the Limitations Act nullified the limitations defence, but he hadn’t pleaded this law or raised it during the summary judgment motion.  The Court refused the appeal:

[4]         Instead, the appellant raises for the first time the argument that his action against the respondents is not statute-barred because of the operation of ss. 10 and 16(1)(h) of the Limitations Act. Section 10(1) tolls the running of the limitation period in respect of a claim based on assault or sexual assault during “any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.”  Section 16(1)(h) states that there is no limitation period in respect of a proceeding “arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise.”

 

[5]         Notwithstanding several amendments to his pleading, the appellant did not plead ss. 10 and 16(1)(h) of the Limitations Act, nor did he raise those sections during the argument of the summary judgment motion.

 

[…]

 

[7]         The appellant’s argument that he was incapable of commencing the proceeding within the meaning of s. 10 of the Limitations Act is foreclosed by the motion judge’s finding that he had sufficient facts upon which to base a claim by March of 2004, or at the latest, when he filed his application for compensation with the Criminal Injuries Compensation Board in July 12, 2004.  This finding was reasonable on the evidence before the motion judge.

 

[8]          In our view, it would be contrary to the interests of justice to entertain the appellant’s argument for the first time on appeal respecting the possible application of s. 16(1)(h) of the Limitations Act.  On a motion for summary judgment, a responding party must put its best foot forward or risk losing the motion.  The possible application of s. 16(1)(h) to the appellant’s cause of action would require a consideration of evidence as to whether Ms. Iamkhong was in a position of trust in relation to the appellant at the time of the assault which infected him.  We are not satisfied that all the facts necessary to address these points are before this court as fully as if the issue had been raised on the summary judgment motion.  Further, there is no suggestion by the appellant that the evidence relevant to these points only became known to him after the summary judgment motion had been argued and decided.