Canada: What Defences May Apply To A Sexual Assault Claim? – Part 2

Last Updated: November 7 2012
Article by Elizabeth K.P. Grace

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.

Limitations 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.

  1. 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.
  2. 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).
  3. 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.
  4. 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.
  5. 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.

Immunity Defences

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.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Elizabeth K.P. Grace
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.