Our Ontario abuse lawyers offer victims of sexual assault and abuse skilled and respectful assistance and representation based on our long record of success in obtaining fair compensation for harms and losses caused by both historical and contemporary sexual abuse and assault.
I was sexually assaulted.
1. Do I have a claim?
Yes, if you were sexually assaulted, you have a claim. Sexual assault (also described as sexual abuse) is recognized as wrongful in many areas of the law, including our civil and criminal court systems. However, before actually proceeding with a claim, there are many things that need to be considered.
Relevant considerations include whether there are any defences that might be successfully raised against your claim. For example, where an adult claims compensation for sexual assault that occurred in childhood or adolescence, there may be a “limitation defence” that applies. This defence is based on a court determining that too much time passed before the claim was started, with the result that the right to sue for compensation has been lost. This can be a complicated area of the law and legal advice should be obtained. For more information on limitation periods in sexual assault cases, see my article “Assault Claims Subject to Distinct Limitations Provisions”. Where an adult claims compensation for sexual abuse that occurred in adulthood, an example of a defence that may be raised is “consent”, which if accepted, can defeat a claim.
There are also practical considerations that can be important. If you are suing for compensation in the civil courts, relevant questions include whether the person(s) you are suing are alive and their whereabouts known, and whether they have sufficient means to pay you compensation.
In summary, while having a valid claim is an important first step, there are many things that need to be considered before deciding whether or not to actually pursue a claim for compensation in our civil courts.
2. What kind of claim do I have?
Because sexual assault or sexual abuse is recognized as being wrongful in many areas of the law, there are a variety of different kinds of claims that can be brought, depending on what happened, when it happened and who was involved.
The civil justice system allows persons who have suffered a sexual assault to sue for “damages” (or compensation). There are a number of potential “causes of action” (claims recognized by our courts) which may be asserted. These include sexual assault, negligence, breach of fiduciary duty, and in the case of an employer, “vicarious liability” for the sexual misconduct of an employee.
Where a criminal offence has also been committed, an option may be to have criminal charges laid against the abuser. Most provinces and territories allow victims of crime to apply for publicly-funded compensation. In Ontario, such compensation is offered by the Criminal Injuries Compensation Board. Depending on the circumstances of the sexual abuse, there could be other avenues of recourse, aside from our civil and criminal courts, such as a human rights complaint (in Ontario, by way of an application to the Human Rights Tribunal of Ontario), filing a grievance in a unionized workplace or a complaint under a workplace harassment policy, and complaining to a professional regulatory body.
For more information on the kinds of claims available in the case of sexual assault or sexual abuse, please see my article “Legal Redress Options Available to Abuse Victims”.
3. Who can I sue?
You can, of course, sue the individual who sexually assaulted you. To do so, it is best (although not necessary in all cases) if this individual is still alive, his or her whereabouts known and he or she has sufficient assets to pay you compensation (bearing in mind that he or she may also have to pay a lawyer). Where other persons have allowed or encouraged the sexual abuse to happen, you may also sue them. This could include an individual like a parent or relative who turned a blind eye to the abuse, or worse still, helped it to happen. It could also include an organization or institution with which the abuser was associated or which employed the abuser. For example, a religious body that placed the abuser in a position of trust and authority over vulnerable individuals may be liable. Such organizations or institutions can be directly liable for doing or failing to do things that facilitated the abuse, or they may be indirectly liable based on “vicarious liability”, which is a no-fault principle of liability that can apply where employers have done nothing obvious or direct to cause the abuse to happen. One potential advantage to suing an organization or institution is that it may have insurance coverage, which can make recovery of compensation easier.
Elizabeth Grace is a partner at the Ontario law firm, Lerners LLP, and has specialized in sexual assault matters for almost two decades now.
This is general information only, and is not intended as legal advice. If you have been sexually assaulted or sexually abused, you are encouraged to contact a lawyer for advice specific to your situation.
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