Improved access and limitation period removal should be part of reform

It’s time for Ontario to re-establish itself as a Canadian leader in the advancement of the rights of sexual violence and harassment victims with a goal of creating an environment that’s more safe, fair and understanding for current and future generations, Toronto lawyer Elizabeth Grace recently told the province’s Select Committee on Sexual Violence and Harassment.

Grace — whose practice at Lerners LLP focuses in part on civil claims arising out of sexual abuse – appeared before the committee with a senior colleague from another law firm who also works in the same area to make a presentation on legislative amendments they believe need to be made in the area of sexual abuse.

The committee was established as part of Premier Kathleen Wynne’s sex assault and harassment action plan called “It’s Never Okay.” The $41-million plan pledges to fund sexual assault support services, public-awareness campaigns, and kick-off a pilot project to offer victims of sexual violence free legal advice.

Wynne has promised legislation after further consultation to amend existing workplace-harassment law, remove statutory limitation periods for civil sexual assaults and change tenancy law to allow victims of domestic violence or sexual assault to break leases with less than 60 days notice.

The select committee has been mandated to consider advice and recommendations from stakeholders with respect to the prevention of sexual violence and harassment and to improving the response to Ontarians who have experienced sexual violence and harassment.

Grace, who appeared before the committee in her personal capacity with her colleague, says the opportunity to add her voice to the conversation on reform, while it required a substantial investment of personal time, was rewarding.

In their submission to the committee, Grace and her colleague write that, over the past 25 years that they have been practicing in the sexual abuse area, they have witnessed a positive, if gradual, evolution of the public’s and the judiciary’s understanding of the insidious nature of sexual violence and the profound harms it causes. The Ontario government’s leadership through legislative reform and policy initiatives has been “a critical stimulus” to this evolution, says the submission.

“To continue with the objective of ultimately eradicating tolerance for, and misunderstanding of, sexual violence and harassment, the time is right for the Ontario Government now to re-establish its position as a leader in Canada in the advancement of the rights of victims with a view to making a safer, fairer and more understanding environment for our current and future generations,” the submission continues.

The proposed reforms outlined in the submission authored by Grace and her colleagueare as follows:

– Amend the Ontario Victims’ Bill of Rights, 1995 and Ontario Regulation 456/96 under this statute to facilitate a greater ease of access to the criminal and civil justice systems and enhance accountability from legally responsible parties, to:

• Articulate and make explicit directives in the statute and regulation to give meaning to the principles stated in the preamble and listed in subsection 2(1) of the statute;
• Eliminate the personal injury “cap” for non-pecuniary damages awards arising from sexual assault;
• Increase the level of recovery for legal costs to victims who are successful on motions and at trial from substantial indemnity to full indemnity costs;
• Modernize the language in the statute from the outdated phrase “solicitor and client” costs to “substantial indemnity,” or, preferably, “full indemnity” costs;
• Explicitly extend the existing mandatory legal costs recovery provision in the statute to apply to all defendants who may be legally responsible for the harms caused by sexual assault; and
• Extend the jurisdiction, currently vested in a judge, to the “court” (a term that encompasses judges and masters) for consistency and clarity in relation to costs awards made in motions heard in civil proceedings arising from sexual assault across the province.

– Amend the relevant limitation period provisions of the Ontario Limitations Act, 2002 to:

• Remove the availability of a limitation period defence from all proceedings arising from misconduct of a sexual nature (thereby extending the current limitation period exemption, which is only for sexual assault committed in the restricted circumstances of a power-dependency relationship);
• Make explicit that there is no limitation period defence available to any person who is legally responsible for the sexual assault/harms (i.e., not just to the person who committed the sexual assault);
• Extend the current transitional provisions, which currently revive all expired sexual assault claims against the direct perpetrators of sexual assaults, to similarly revive claims against all those legally responsible for the sexual assault/harms, regardless of whether the latter persons had “knowledge” of the sexual assault as it was ongoing; and
• Simplify the language to eliminate ongoing and costly court challenges aimed at securing the “correct” interpretation of the existing sexual assault Limitation Act provisions.

– Amend the Ontario Trustee Act to clarify that the fixed two-year limitation period (from the date of death) within which to bring civil claims is only applicable to the estates of deceased persons, and not available to be relied upon by others legally responsible for the sexual assault/harms.

– Amend Ontario Regulation 222/98 and Ontario Regulation 134/98 under the Ontario Disability Support Program Act, 1997 and the Ontario Works Act, 1997, respectively, to:

• Create an exemption to the calculation of “assets” and “income” so as to exclude sums received by recipients that represent awards granted by the Criminal Injuries Compensation Board for sexual assault;
• Create an exemption to “assets” and “income” calculations to exclude sums received by recipients as compensation for non-pecuniary general damages and expenses, excluding loss of income, arising out of a civil court proceeding relating to sexual assault;
• Further, or in the alternative to the preceding recommendation, increase the current limit to exempt proceeds from civil court proceedings from $100,000 to $150,000 (Ontario Disability Support Program) and from $25,000 to $50,000 (Ontario Works), together with an automatic inflationary increase to be fixed every five years; and
• Vest the same discretion in the Director of Ontario Works, as is currently vested in the Director of the Ontario Disability Support Program, to expand the exemption for compensation arising from civil court proceedings to exceed in certain circumstances the limits fixed by Ontario Regulation 134/98.

This article originally appeared on AdvocateDaily.com