Canada: Law Makes Civil Sex Assault Litigation Easier

Last Updated: March 30 2016
Article by Elizabeth K.P. Grace

Previously published in Law Times - March 14, 2016.

Civil sexual assault litiga­tion will be less cum­bersome and costly to plaintiffs now the Ontario gov­ernment's has passed Bill 132, lawyers say.

The bill, which received Royal Assent March 8, means victims of sexual assault can launch a lawsuit any time after an alleged abuse, without having to prove they de­serve an extension of the usual two-year limitation.

The old system had complex exceptions to the general two-year limitation period for civil cases. It created a "rather com­plicated scheme" where lawyers had to look at a number of dif­ferent combined legal and fac­tual issues before clients could be heard, says Loretta Merritt, who practises plaintiff-side civil sexual assault litigation at Tor­kin Manes LLP.

In the past, if plaintiffs want­ed bring a case to civil court af­ter the ordinary two-year dead­line, they had to, for example, establish they didn't have the psychological capacity to come to court earlier than they did. They also had to show they only recently discovered the harm that was done to them and un­derstood the cause of that harm to be the alleged sexual assault. Sometimes, plaintiffs would have to call expert evidence to establish those facts.

"What it means is additional work throughout the file. When you first meet with clients, you have to ask all these questions and get all this information," Merritt says, adding lawyers also had to get records from therapists and scour those files.

"You have to spend time at the front end when you meet the client, you have to spend time when you're pleading, you have to spend time when you're do­ing the documentary disclosure, [and] a lot of time is spent on it on examinations for discovery," Merritt says. "A lot of work is de­voted to this issue."

Bill 132, officially the Sexual Violence and Harassment Ac­tion Plan Act (Supporting Survi­vors and Challenging Sexual Vi­olence and Harassment), means lawyers representing plaintiffs will no longer be bogged down with this work.

"If we simply acknowledge that there should not be limita­tion periods in sexual abuse cas­es, then all that work goes by the wayside and you can get to the merit," Merritt told Law Times, before the bill passed.

Elizabeth Grace, a partner at Lerners LLP, said the bill broad­ens the "no limitation rule" to other forms of sexual miscon­duct. The old system didn't catch abuse over the Internet, such as children being lured to expose themselves or cyberbullying of a sexual nature, Grace says. The new legislation also includes domestic violence under its um­brella.

"I think these [changes] put Ontario at the forefront of the issue along with Manitoba and British Columbia," Grace said. "It's certainly going to help ac­cess to justice for victims; it's going to contribute to less costly litigation, less risky litigation."

Grace said when the bill is implemented, there may be more litigation in this area be­cause there may be victims who haven't come forward because they believe it's too late.

"I keep hoping we're going to see the litigation in this area decline as we've had advances like vicarious liability and we get more conscious of the harm that's caused . . . but I haven't seen that happen," Grace said. "There are still historical cases coming forward and I must say contemporary cases. I think this [bill] will remove a barrier and result in more litigation."

To be sure, Merritt says law­yers are not seeing a lot of civil sexual assault cases being dis­missed because they're statute-barred. But the additional work around the limitation period makes litigating these cases dif­ficult and costly, she says.

"Another other side is there may be individuals out there — plaintiffs, abuse survivors — who have some notion that it's too long ago and there might be some obstacle that they cannot overcome," Merritt says.

"It's very easy for me to tell the world generally that there's no time limit. It's very hard for me to explain limitation period to people."

During Jian Ghomeshi's re­cent sexual assault criminal trial, several observers mused over the idea that the civil court may be a better alternative for alleged victims of sexual assault to have their day in court. If the limita­tions requirements are removed on the civil side, as they are in the criminal justice system, there may be more argument in favour of choosing the civil court, Mer­ritt says.

"I think there have always been significant advantages to civil as opposed to a criminal case . . . the lower burden of proof being the obvious one," Merritt says. "In the civil case, it's not just about getting money. It's about standing up for one­self. It's about holding people to account, it's about healing, justice, closure, [and] empower­ment."

The survivor in a civil case works closely with a lawyer "whose only job is to advance their interest in the way that they instruct," which is not the case in criminal court, Merritt adds.

But Grace cautions against seeing civil courts as "the pana­cea," adding she's dealt with cli­ents who said they found civil the process more grueling, in­trusive, and difficult than the criminal side of their case. In civil courts, all of the plaintiffs' sexual past and history become relevant in the way they may not be in criminal courts, Grace says. "We shouldn't be too quick to think civil is the panacea; what's relevant in a civil case is much broader than a criminal case."

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.