1. PURSUING COMPENSATION FOR SEXUAL ABUSE SURVIVORS: CIVIL ACTIONS
PRESENTATION FOR
THE BARBARA SCHLIFER CLINIC
September 8, 2016
Loretta P. Merritt |

2. LIABILITY A) Use of a criminal conviction Evidence Act s. 22.1
Proof of conviction of crime (in absence of evidence to contrary) is proof crime committed
Practically conclusive on the issue of whether the assault or abuse was committed

3. LIABILITY B) What if there is no conviction?
There may still be civil liability
Beyond a reasonable doubt vs. balance of probabilities i.e. 51%
Different defences, e.g. Unreasonable delay
Other possible proof

4. LIABILITY C) Liability of Institutions
Two ways Institutions can be liable
1) Negligence
Hiring
Supervising
Responding to complaints
2) Vicarious Liability
Residential Schools
Training Schools
Churches

5. DAMAGES A) General Damages – Pain and Suffering
Cap approximately $350,000.00
Factors
age of Victim
relationship between victim and perpetrator
nature and extent of abuse
impact on victim
A few cases at or near the Cap
○ 2 over the cap

6. DAMAGES B) Past and Future Therapy C) Income Loss D) Punitive Damages
Missed time from work
Failed to achieve potential
Loss of earning capacity
D) Punitive Damages

7. DAMAGES E) Family Law Act Claims F) Enforcement of Judgment
s. 61 – Children, grandchildren, parents, grandparents, brothers and sisters can sue for pecuniary losses
JRS v. Glendenning – 4 brothers
Mom - $15,000.00
Dad - $ 5,000.00
F) Enforcement of Judgment
Individual defendants

8. LIMITATION PERIODS Bill 132
There is no limitation period for a lawsuit:
Based on a sexual assault;

9. LIMITATION PERIODS
Based on any other misconduct of a sexual nature if the plaintiff was a minor, the defendant had charge of the plaintiff or the defendant was in a position of trust or authority in relation to the plaintiff or plaintiff was financially, emotionally, physically or otherwise dependant on the defendant.

10. LIMITATION PERIODS
There is no limitation prior for a lawsuit based on assault (i.e. physical assault)
if the plaintiff was a minor, the parties had an intimate relationship, or the plaintiff was financially, emotionally, physically or otherwise dependent on the defendant.

11. LIMITATION PERIODS For cases where Bill 132 does not apply
(Old) New Limitations Act 2004
General rule for all civil cases is 2 years.
For sexual assault by person in relationship of trust/authority/dependency there is no limitation period.
There is no limitation period during any time when plaintiff is incapable of suing – including psychologically incapable.

12. LIMITATION PERIODS
Presumptions that plaintiffs are incapable in sexual assault cases and in cases where physical assault in context of trust relationship.
Presumption is rebutted – going to police, CICB, disclosures may trigger limitation period.
Discoverability Rule
Plaintiff must understand:
Defendant’s conduct was wrong
Plaintiff suffered harm, and
The causal connection

13. CONCURRANT CIVIL AND CRIMINAL PROCEEDINGS
Possible, not advisable
Best to have conviction first
Avoid cross-examination on financial motive
Less stress

14. LEGAL COSTS
Contingency Fees
Recovery of costs from defendant

15. PRIVACY ISSUES Generally Sexual Assault trials open to public
documents – public record
Sexual Assault
pseudonyms
injunctions
sealing court file
non-publication order

16. THE APOLOGY ACT
A sincere apology can make a huge difference and it is the right thing to do.
An apology is NOT a legal admission of guilt and has no impact on insurance coverage.
Exception for criminal trials.

17. THE APOLOGY ACT Six Provinces have apology legislation.
British Columbia, Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia
Yukon and Newfoundland have introduced this legislation and North West Territories is exploring the issue
Hopefully the new legislation will remove barriers to settlement discussions and promote healing and reconciliation.

18. “GAG ORDERS” or CONFIDENTIALITY AGREEMENTS
WHAT IS CONFIDENTIAL
Terms of Settlement
Fact of Settlement
Abuse
Exceptions - professional advisors (medical, therapy, lawyer, financial), family and “friends”
Exceptions – non-identifying information
Consequences of breach

19. STEPS IN A CIVIL CASE Information and record gathering
Exchange of Affidavit of Documents and Discoveries (perpetrator may be present)
Mediation
Pre-Trial
Trial
Timing

20. WHY SUE? The Money Standing up for one’s self Empowerment Being Heard
Being Acknowledged
Holding People to Account
Healing
Closure