Civil Sexual Assault Defence Lawyers in Toronto

It is not uncommon for survivors of sexual assault to pursue both criminal and civil charges against their alleged perpetrators. In civil lawsuits related to sexual assault, complainants typically seek monetary damages for the injuries resulting from the alleged incident. Civil trials have a lower burden of proof compared to criminal trials, allowing plaintiffs who were unsuccessful in criminal court to potentially secure a favorable judgment in civil proceedings.

To establish a case of sexual assault in a civil lawsuit, the plaintiff must convince the judge that their allegations are more likely true than not, adhering to the “balance of probabilities” standard. Our Firm has experience defending historical civil sexual abuse claims, some of which involve substantial damages, often brought forth by family members or individuals accusing professionals in positions of trust.

In the Firm’s, AO v. WT, it defended a claim against a retired teacher for several million dollars, for an incident alleged to have occurred in the 1980s, nearly three decades after the event took place. The complainant allegedly had a sexual relationship with her teacher at the time. Even though the encounter may have been “consensual” there are special rules that prohibited consenting adults from engaging in sexual acts.

Additionally, we have discreetly resolved civil actions concerning sexual misconduct between employees in positions of power within large organizations in the Firm’s File No. 35*****2. These allegations, sometimes dating back decades, are often raised against high-ranking executives seeking financial compensation by victims. When faced with demands for substantial payments, a common strategy involves leveraging the potential publicity associated with a statement of claim. The Firm was able to successfully avoid a public lawsuit and resolve the matter between the parties.

Not all civil sexual assault files are advanced in civil court. Some are brought to the Human Rights Tribunal. There are a number of tactical reasons for this, mostly that there are very low cost consequences for the complainant. These proceedings can also move faster but damages can be capped at a lower threshold. In 2019 in the Firm’s NM v. TS, it defended a prominent business owner in Northern Ontario. It was alleged he was having a sexual relationship with a subordinate employee. Although legally inappropriate, the Firm was able to establish through forensic evidence that the relationship was consensual, and not sexual abuse. Over a period of several years, the complainant changed lawyers 3 times. The Firm was eventually able to resolve the matter without any finding of fact, misconduct or financial penalty.

To meet the standard of proof in civil sexual assault cases, plaintiffs and defendants typically present various types of evidence. This may include medical or clinical records, character references, findings of guilt in criminal trials, prior testimonies from criminal proceedings, and statements from other witnesses. Our Firm successfully secured the withdrawal of historical sexual assault charges dating back to 1985 in the case of R. v. A.E. [2019] in Perth, Ontario. After over a year of litigation, it was revealed that the allegations had been fabricated following a family dispute related to an inheritance. These investigations often involve rigorous police interrogations to compensate for the absence of physical evidence and eyewitnesses.

The Firm was also able to strategically settle a civil sexual assault claim after the accused previously plead guilty with another law Firm. The accused plead guilty to sexual interference for allegedly touching a niece in the family 10 years prior. The accused received a plea deal and was not told by his lawyer that he could later be sued. Right after the accused entered his plea, the plaintiffs lawyer took the transcripts and proceeded with an immediate civil claim. This is a difficult position for our Firm to be in because there is already overwhelming evidence of sexual abuse. The Firm inherited a file with a tactical disadvantage. However, between the 3 lawyers staffed on the file at the Firm, it was able to resolve the matter very favorable by exploiting procedural delays in its File No. 24****1. The Firm also discovered interference from the father of the complainant which was used by the defence. Both the client and complainant were happy in the end that the matter was resolved.

Are School Boards Liable for the Sexual Misconduct of Teachers?

In some cases, yes. A school board can be sued by a student or former student who was sexually abused by a teacher the board employed. In Ontario, case law on this matter has been undecided, with some complainants being successful in their lawsuits against school boards, and others unsuccessful. As of 2024, the Supreme Court of Canada has not come to a decision regarding the vicarious liability of school boards. While complainants have begun to gain traction with this type of suit, the path to success is a difficult one.

When suing a school board for sexual abuse carried out by an employee of the board, the student will argue that the school board owed the student a duty of care, and that the school board breached that duty of care by being negligent.

To successfully sue a school board for sexual abuse carried out by an employee of the board, including a teacher or principal, there are three conditions that must be satisfied. To prove the school board was negligent, a student must prove that:

• The school board failed to uphold the duty of care to supervise students and keep them safe while under the board’s care.
• The student suffered a loss or damages as a result of the board’s negligence.
• The damages or loss suffered by the student were directly caused by the board’s failure to uphold their duty of care.

Where the student can sufficiently prove all three of these elements, their lawsuit is likely to be successful. Once the court has determined that the board is liable, they will then determine the amount of damages that the board must pay.

What is Duty of Care?

When a student or former student sues a school board for breach of duty of care, they are essentially arguing that the school board owed them a duty of care and breached that duty of care by allowing the sexual abuse to occur.

Schools have a responsibility to supervise students in their care in a vigilant and prudent manner, to establish and maintain a uniform set of rules and principles to govern both students and employees at the school, to teach these rules to employees and students, and to supervise and manage teachers and other individuals the board employs.

Where a school is made aware of an issue with one of their employees, especially one involving sexual misconduct, the school has a duty to take action to investigate the matter. If evidence is uncovered that suggests the accused teacher is guilty of the allegations, the school has a positive duty to protect not only its own students, but students everywhere.

A school who discovers a teacher has engaged in sexual misconduct involving a student has a duty to report the matter to the Ontario College of Teachers who have the ability to suspend or revoke the teacher’s license. Depending on the nature of the abuse, the board may also have a duty to report the matter to law enforcement.

What is Vicarious Liability?

Vicarious liability involves placing the liability for one individual or institutions actions on to another individual or institution. For example, a school board may be held vicariously liable for the actions of the teachers it employs if those teachers engage in sexual abuse of a student. This means both the teacher and the school board may be sued and held liable for the actions of the teacher.

In Ontario, courts have held school boards vicariously liable for the actions of their employees. A school board may be held vicariously liable for the actions of their employees where they were aware there was an issue with the employee and failed to take action. Similarly, a school board may be held vicariously liable for failing to adequately protect a student who is sexually abused by a teacher.

In a 2020 Ontario Superior Court of Justice case, C.O. v. Williamson and Trillium Lakelands District School Board, the court found the school board vicariously liable for a sexual assault committed by one of the board’s teachers. The victim of the assault reported the matter to school administrators at the time it occurred but asked them to keep the incident a secret from her parents and the police. While the board asked the teacher to resign, he was permitted to remain at the school for three months following the report, to finish out the school year. The court found that the school board had breached its duty to the complainant first by failing to protect her once they had disclosed the abuse, and second by failing to remove the teacher right away and to offer emotional support services and resources to the complainant following her disclosure about the assault.