frequently asked questions

Sexual Abuse Claims

Should I Sue?

As the statistics show, very few cases of sexual assault are reported to the police. Whether or not criminal charges have been brought against the abuser, a survivor of sexual assault is entitled to sue their attacker and anyone who may have been in a position to stop or prevent the abuse. Many survivors find that bringing a civil lawsuit forms part of a constructive healing process. They find it empowering; it allows them to take control over their future. It can be a means to obtain funds for therapy, education, or other improvements in their lives.

Unlike criminal proceedings, where a survivor is merely a witness for the crown and has no control over the process, in a civil case the survivor/plaintiff has a great deal of control over how the case is conducted. It is important to seek legal advice from a lawyer who has experience with such cases.

Who Can I Sue?

Not only can the perpetrator be sued, but a survivor of sexual assault may be able to sue defendants other than the perpetrator. For example, an employer may be found to be liable for the acts of its employees by, for example, failing to investigate earlier complaints or check the perpetrator's references. In some cases, the employer may be automatically liable for the wrongful acts of its employees. The court considers the strength of the link between the opportunity created by the employment and the wrongful act. Often law suits could be brought against churches, Children's Aid Societies, teachers and school boards, Big Brothers, Scouts Canada (Boy Scouts), Ontario training schools, and other institutions.

Have I Left It Too Late?

As of now there are no more time limits for suing for sexual assault, domestic violence or child abuse.

On March 9, 2016, Bill 132 Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) 2015 received Royal Assent which is the last step in making it a law.

The Limitations Act

Bill 132 amends the Limitations Act 2002 to provide that there are no limitation periods for cases “based on a sexual assault”. There will also be no limitation periods for cases 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 if there is an authority, dependence or trust relationship. Bill 132 also eliminates limitation periods for cases based on physical assault if, “at the time of the assault, the person with the claim was a minor or if the parties had an intimate relationship or there is a relationship of dependence. Bill 132 provides that these changes are retroactive and apply whenever the acts occurred and regardless of the expiry of any previous limitation period, unless the case is over because it was settled or finally determined by the Court.

Will We Win the Case?

Sexual assault can be difficult to prove. There are no guarantees of winning a civil lawsuit. There are usually no witnesses. The alleged offender may claim that the survivor actually consented to the sexual assault, deny that the abuse occurred, blame the survivor, or rationalize their own conduct. These factors often compound the anxiety of going to court and telling the world what happened.

Before having a survivor of sexual assault go through this process, a lawyer will first decide if there is a realistic chance of winning the case. The lawyer must be able to prove on a balance of probability (i.e., more likely yes than no) that the assault occurred and that damage was suffered. There is no true consent if it is obtained by threats, intimidation, or through breach of trust.

Evidence is an important part of winning a case. Although there may be no eyewitness proof of a sexual assault, there can be other corroborating evidence. Perhaps the survivor told a friend, family member or health care professional of the assaults. In some instances, there may be evidence in the form of letters or diaries that the survivor kept during the abuse. The alleged offender may have a history of abuse, relevant medical or psychological history, or a tendency to violence. If the offender has been criminally convicted, this will help the survivor's case.

In reality the vast majority of civil cases do not end up in a trial. Rather they are settled out of court. The amount of the settlement depends on the strength of the case and the damages which the survivor has suffered.

Is It Worth It? Only the survivor of sexual assault can decide whether bringing a lawsuit will be worthwhile, weighing the likelihood of a successful outcome against the difficulties of going through the court process. The advice of a lawyer experienced in these cases will help the survivor make the decision, especially if there is a strong case (such as prior criminal conviction), damages are significant, and a potential defendant has financial means. The lawyer can advise the client of his or her legal rights and remedies and explain how lawsuits work. The lawyer will also assess the likelihood of success and the range of any potential damages to be awarded. The lawyer can represent the client in litigation, arbitration or mediation, and conduct settlement negotiations on the client’s behalf. Do I Have Any Right to Privacy?

Survivors are often concerned about the extent to which their privacy will be invaded in a civil lawsuit, where many documents filed with the Court identify the parties by name and are a matter of public record. However, in sexual assault cases, the Courts will usually allow the survivor to be identified by initials only. Civil trials are usually open to the public but are rarely attended by anyone other than the parties involved and witnesses to the case.

In a civil case, the survivor is asking the Court to award compensation for the damages suffered as a result of the abuse, so a full inquiry into the effects of the abuse is warranted. Survivors who sue in civil court will usually be required to produce medical and other records relevant to the case. Before deciding to start a civil case, survivors should discuss these disclosure requirements with their lawyers so that there are no surprises.