Canada: I Was Sexually Assaulted. How Do I Start A Lawsuit For Sexual Abuse?

Last Updated: August 11 2012
Article by Elizabeth K.P. Grace

A civil lawsuit for compensation, which is also known as an "action", is typically started by way of a formal court document called a "Statement of Claim". This document is "issued" by the court, which stamps it and assigns a court file number to the action. A copy of the Statement of Claim is retained in the court's file, meaning the Statement of Claim is technically a public document. The rules of court require that a Statement of Claim, once issued by the court, be delivered or "served" on the opposing party or parties within a specific period of time, and that an Affidavit confirming it has been properly served is filed with the court. Once these steps happen, certain obligations on the parties to the action are triggered.

A Statement of Claim starts by naming the parties to the action – that is, the plaintiff(s) and the defendant(s). It then describes the "relief" the plaintiff is asking for. The relief claimed is usually monetary in nature. Sometimes non-monetary relief is claimed as well. A declaration by the court of unlawful conduct, or an order by the court that property be preserved or returned, are examples of non-monetary relief that can, in appropriate circumstances, be claimed. The Statement of Claim then goes on to describe the parties to the action and the essential facts on which the claim is based. In an action for damages based on sexual assault, this would include, at minimum, a description of the parties' relationship to one another at the time of the sexual abuse, what happened, when it happened and where it happened. The harms suffered as a result of the sexual abuse are also described. Lastly, the legal bases for the claim are usually stated.

It is important to remember that a Statement of Claim is only intended to set out the key elements of a claim, and need not and should not include every detail of what happened, or the evidence by which the claim will be proven. There are specific rules of court that address what needs to be included, and what is improper, in a Statement of Claim. As a result, it is prudent to consult a lawyer and have the lawyer prepare the Statement of Claim. A client should always carefully review the Statement of Claim, once drafted and before it has been issued by the court and served on the opposing party or parties, to make sure it contains an accurate summary of the facts because it will frame the issues going forward and is binding on the plaintiff(s), such that if there are significant mistakes in it, this can prove problematic. As a Statement of Claim often includes technical legal language, a client should not be shy about asking his or her lawyer what is meant by the wording in it, or why something has or has not been included in it.

After an action has been started by way of Statement of Claim, a plaintiff should expect a defendant to respond with a formal court document called a "Statement of Defence". The Statement of Defence is also served on the opposing party or parties and filed with the court and thus, is technically a public document as well. Again, there are rules of court and court decisions that address what belongs in a Statement of Defence. In it, a defendant admits and/or denies the allegations in the Statement of Claim and sets out, in summary form, the facts and legal bases that are relied on in the defence of the claim. Sometimes a plaintiff will serve and file what is called a "Reply" to the Statement of Defence.

The Statement of Claim, Statement of Defence and Reply are what are known as the "pleadings" in a civil lawsuit because, in them, the parties "plead" their case before the court. While there are additional kinds of pleadings that may be used in a court proceeding, the pleading most commonly used to claim compensation for sexual assault is a Statement of Claim.

This is general information only, and is not intended as legal advice. If you have been sexually assaulted or sexually abused, you are encouraged to contact a lawyer for advice specific to your situation.

www.lernerspersonalinjury.ca

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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