The #MeToo and #TimesUp movement has brought long-awaited attention to a problem our society has buried for far too long. While it brings hope for the future, here are 10 things to keep in mind when looking at sexual assault cases from a civil lawsuit perspective:
1. On March 9, 2016, the Ontario Limitations Act was amended to remove all limitation periods for civil claims “based on sexual assault”. This means that the traditional 2 year limitation period that normally applies in the civil context does not apply for claims related to sexual assault.
2. The Compensation for Victims of Crime Act (CVCA) was also amended, removing all limitation periods for victims wishing to make applications to the Criminal Injuries Compensation Board (CICB).
3. The CICB provides an alternative pathway for victims who may not wish to pursue a civil action. A criminal conviction is not required in order for victims to apply. The CICB can award victims up to $25,000.00 under various headings of damages, including pain and suffering. You can sue civilly and claim from the CICB.
4. In a criminal case, the Crown must prove the case “beyond a reasonable doubt”. If there is some doubt raised as to the events that transpired, then the doubt is resolved in favor of the accused person. In a civil case, the Plaintiff must prove its case on “a balance of probabilities”. The question becomes, “on a balance, who is a jury more likely to believe?”, which is a lower test.
5. The Ontario Rules of Civil Procedure apply to civil suits and these rules require the victim to disclose personal details that otherwise are not required in a criminal case to prove the alleged damage. It also requires the Defendant to be examined under oath, which does not happen in a criminal case.
6. Victims of sexual assault often retain more control over how a civil case proceeds. In a criminal case, the decisions are largely out of the victims’ hands. In the civil system, a victim can decide how far they want to pursue the case, whether or not they want to accept a settlement, or decide to pursue their matter to trial.
7. The costs of pursuing a civil lawsuit need to be taken into consideration by potential Plaintiffs. If the victim takes its case to trial, and loses, it likely will be responsible for paying a large part of the Defendant’s legal costs.
8. If there is a risk that a Defendant is impecunious, a civil lawyer may require an initial monetary retainer in order to pursue the case. Insurance almost always will not cover a civil damage award although some umbrella policies may. A lawyer may also take on these cases on a strict contingency fee basis.
9. A civil settlement can often include a gag order, and be accompanied with terms that lets the Defendant pay a sum without an admission of liability. This may become a controversial issues since many victims want the assailant to admit the wrongness of their actions.
10. Victims of sexual assault in the workplace may be eligible for other types of assistance – such as short term and long term disability, should their injuries prevent them from returning to work. They may also be able to sue their employers depending on the circumstances of the work environment.
At Howie, Sacks and Henry, our personal injury lawyers have a well-earned reputation for helping clients who have experienced traumatic and distressing events. We have sued civilly and pursued claims with the CICB for victims of assault. When you have been assaulted, trust becomes an issue. Let us be your trusted advocates.
For more information on launching a sexual assault civil suit, including accessing long-term disability benefits, please contact personal injury lawyers Valerie Lord at 416-644-5849, email at email@example.com, or Michael Henry at firstname.lastname@example.org or 416-361-0889.