Canada: Government Eliminates Limitation Periods On "Sexual Violence"

On May 4 new legislation came into force to amend the Limitations Act, RSA 2000, c L-12 ("Limitations Act"). Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence ("Bill 2"), removed the two-year limitation period on the following types of claims:

• Sexual assault
• Sexual misconduct involving a minor, intimate relationship or dependent
• Non-sexual assault involving a minor, intimate relationship or dependent

Alberta is not alone in passing legislation that ends limitation periods on sexual violence. Ontario, for example, recently passed Bill 132, Sexual Violence and Harassment Action Plan Act, which means that there are no more time limits for suing for sexual assault, domestic violence, or child abuse in Ontario.

Of particular interest to employers and corporate entities is section 3.1(1)(b)(iii) of the revised Limitations Act:

This language allows employees who were victims of "misconduct of a sexual nature" to pursue civil claims without being barred by a limitation period. In other words, an individual employer who engaged in "sexual misconduct" against an employee could potentially have a claim filed against them decades after the initial incident of sexual misconduct. In some cases, corporations are liable for the actions of their employees so this also matters to some corporate employers.

Retroactive Application

It is especially important to note that the provisions of the Bill apply retroactively, meaning that claims that arise from incidents that predate the changes to the Limitations Act are not barred. This means that individuals and employers in Alberta are now open to sexual misconduct claims that could have arisen decades ago. This does not mean they will succeed because the passage of time will always make proof difficult but proof in some cases will be accepted.  

Sexual Harassment

"Sexual violence" and "sexual misconduct" are broad and general labels and the Minister made it clear that she wanted the proposed changes to be construed as broadly as possible. During the discussion of Bill 2 during the Committee of the Whole, the Minister stated, "We were very clear in selecting incredibly broad and inclusive language. This, in fact, puts Alberta, which was behind every other province in the country, out in front so that we have the most inclusive language of any province..." (Hansard, March 22, 2017). The Minister stated during the discussion of the Bill: "...I'll just speak very briefly to the term 'sexual misconduct'...These behaviours would include but are not limited to sexual exploitation, sexual harassment, stalking, indecent exposure, voyeurism, or distributing sexually explicit photographs or videos without an individual's consent". During the Third Reading of the Bill, the Minister again reaffirmed that sexual harassment would fall under the meaning of sexual misconduct (April 19, 2017 at p. 678). There can therefore be no question that the Minister's intention was for the legislation to encompass sexual harassment claims.

However, this may not be possible. The "illegality" of "sexual harassment" is a product of human rights legislation which is not covered by the Limitations Act and has its own form of limitation periods for filing complaints. It seems doubtful that Bill 2 will apply to the Alberta Human Rights Act and it has generally been understood that it was only under human rights legislation that a victim could receive a remedy for sexual harassment (short of a tort claim). Sexual harassment is not yet an established tort on its own. Bill 2 cannot likely create a civil claim so it is at best unclear whether Bill 2 has any impact on claims of sexual harassment which is conduct short of assault, battery, or other established torts.

Conclusion

How will Bill 2 affect employers? It may expose them to unanticipated liability for past actions of their employees. There is little they can do about that now but they can certainly make sure that any future incidents are discouraged and are actively investigated and dealt with when they occur. With this greater potential liability, sexual violence/harassment policies should probably also receive a review. 

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