This is the second of a two-part series on defences to claims for compensation based on sexual assault.
This second part deals with what I call “technical-legal” defences. These are defences that operate irrespective of whether sexual abuse is proven to have occurred. Where these types of defences apply, they generally operate as complete defences – in other words, they serve to defeat the claim being asserted, whether or not the abuse occurred. As such, they can be powerful defences.
Where there are multiple defendants in an action, it is important to remember that technical-legal defences may only be available to be asserted by some of the defendants. Also, they may only succeed for some of the defendants, but not others who may still be liable.
The practicalities of the situation at hand can be important as to whether or not one of these defences is successful. In cases where wrongs have occurred, courts may be reluctant to find a technical-legal defence applies and will often strictly interpret the defence in order to limit the scope of its application and ensure victims of wrongs are not deprived of a remedy.
The two types of technical-legal defences that I will consider here are: (1) limitations defences, and (2) immunity defences.
A limitation defence is based on the argument that the plaintiff waited too long before pursuing a claim for compensation. A “limitation period” is a fixed period of time (e.g., a specific number of years) set out by a statute within which a civil lawsuit for damages must be started. A limitation defence is the technical-legal defence one sees most commonly asserted in an action based on sexual assault, especially one where events took place a long time ago.
Limitations defences are a complicated area of the law. The rules for their application are not only reflected in many different statutes across Canada and within the provinces and territories, but also the wording in these statutes has been the subject of extensive consideration and decision-making by the courts.
Additionally, in the specific area of sexual abuse, there have been recent legislative reforms across Canada. These reforms reflect society’s recognition that sexual abuse is often committed in situations where there is a power imbalance (e.g., child/adult) and it usually causes the victim to feel shame and guilt. Also, it often takes the victim a long time to come forward and claim compensation for his or her resulting harms.
Because of the importance of the specific statutory wording that applies in each case, as well as the variations in such wording, it is only possible to speak in general terms here about how limitations defences operate and how they may be defeated. The key general considerations to bear in mind are the following.
The location(s) of, and context(s) in which, the sexual abuse occurred are critical to determining which statutory limitation provision(s) apply or applies.
There will usually be a fixed time period (e.g., 2 years is common) after which it will be deemed, at law, to be “too late” to sue (but note that, in some cases, law-making bodies have completely dispensed with limitation periods in sexual abuse claims; for example, Ontario’s Limitations Act provides for “no” limitation period for sexual assaults committed in certain defined circumstances).
The date when “the clock” starts to run for the purpose of a limitation period is critical. While it may be on the happening of an easily identifiable event (e.g., the date of death if an estate is being sued), in a sexual abuse case it is rarely the date of the assault itself that will trigger the running of a limitation period. Rather, it is usually when a victim can be said to have “reasonably discovered” that he or she has a claim that the limitation period will begin to run.
The test for how an abuse victim is deemed to have “discovered” that he or she has a claim is multi-factoral, but generally includes consideration of when the victim knew in a meaningful sense that the wrong he or she experienced has caused him or her to suffer injury and harm. Whether, when, to whom and in what circumstances a victim has disclosed the sexual abuse, and whether the victim has received counselling or therapy in relation to the abuse, will usually be highly relevant.
In the case of persons who are under age or under a disability, including a temporary disability, these individuals may be deemed “incapable” of asserting a claim for compensation, and this can postpone when a limitation period starts to run, or interrupt the running of a limitation period.
If the court finds a limitation period defence applies – i.e., a plaintiff waited too long - this will operate to “bar” or stop the plaintiff’s claim. There are many examples in the sexual abuse context of limitations defences succeeding, but also numerous instances where they have failed. As such, this is an area where it is particularly important that both those thinking of asserting claims for compensation, as well as those resisting such claims, should obtain legal advice.
Governments and public agencies, such as school boards, police forces, children’s aid societies, etc., have historically enjoyed varying degrees of “immunity from suit”, meaning they are, in certain circumstances, insulated from being successfully sued. Immunity from suit is an area that, like limitations defences, is often heavily dependent on the wording of statutes and requires careful consideration and legal advice.
While the specific wording of any applicable statue must always be closely examined, there are many provincial and federal statutes that provide for immunity where a public official was carrying out a public duty authorized by statute and did so in good faith. An immunity defence will almost certainly not help the person accused of sexual assault, even if that person was acting in an official capacity at the time (e.g., as a police officer), because sexual assault is neither authorized nor permitted by statute, nor is it something that would ever be regarded as being done in “good faith”. However, a good faith immunity defence may assist an organizational defendant or its staff or personnel who have been sued on the basis they were negligent in not preventing or stopping the sexual abuse.
Because courts do not like to leave victims of wrongdoing without any remedy whatsoever, they generally give narrow interpretations to immunity provisions in statutes. Nonetheless, there are occasions when immunity defences can and have been successfully asserted by defendants in cases involving allegations of sexual assault.
For more information on technical-legal defences, including limitations and immunity defences, please see Chapter 6, “Technical-Legal Defences” in the book I co-authored entitled Civil Liability for Sexual Abuse and Violence in Canada (Toronto: Butterworths, 2000). For a discussion of how Ontario’s Limitations Act, which came into effect in 2004, reflects the trend towards more lenient limitations rules in sexual abuse cases, the reader is encouraged to read my article, “How distinct limitations apply to assault claims” published in the February 4, 2011 edition of The Lawyers Weekly.
Elizabeth Grace is a partner at the Ontario law firm, Lerners LLP, and has specialized in sexual assault matters for almost two decades now. Elizabeth heads a team in the Toronto office of Lerners LLP composed of lawyers and paralegals who share her interest in abuse-related legal matters. See her professional biography for more information about Elizabeth and her work in the area of civil liability for sexual abuse, or email her at firstname.lastname@example.org