Sexual Misconduct

Ontario: the application of the s. 16(1)(h.1) exception

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.

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.