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.

Civil Standard of Proof vs. Criminal

In all civil cases, the burden of proof rests on a balance of probabilities. This means that the plaintiff must convince the judge that their allegations are more likely than not true. The standard of proof in civil cases is considerably lower than in criminal cases, where proof beyond a reasonable doubt is required. Proof beyond a reasonable doubt demands near certainty from the judge or trier of fact that the accusations against the accused are true. Consequently, it is conceivable to succeed in a civil lawsuit even if the defendant has been acquitted in a previous criminal trial for the same alleged offence.

Furthermore, a defendant in a civil lawsuit does not have the option to remain silent, as they might in a criminal trial. Instead, they are obligated to respond to the allegations stated in the plaintiff’s complaint. Failure to respond could lead to a default judgment being entered against them. In such a scenario, the court will assume the truthfulness of all the plaintiff’s allegations and rule in favor of the plaintiff.

What are Pleadings?

Pleadings mark the initial phase of a lawsuit and typically consist of a statement of claim, a statement of defence, and counterclaims. The statement of claim, submitted by the plaintiff, outlines the plaintiff’s grievances and the alleged damages incurred. In response, the statement of defence presents the defendant’s reply to the accusations raised in the statement of claim. Failure by a defendant to respond adequately to a statement of claim, either by providing a defence or denying each allegation, may result in the court issuing a default judgment against them. Additionally, a counterclaim can be initiated by the defendant, wherein they file a lawsuit against the plaintiff, asserting their own claims for damages.

The primary purpose of pleadings is to precisely define the issues under litigation and to notify the defendant of the specific accusations made against them, especially in cases of sexual assault. This process aids the court in discerning the truthfulness of the claims. In civil sexual assault cases, it is advisable to draft the statement of claim broadly, allowing room for extensive discovery. Consequently, defendants in such lawsuits may request additional details about the alleged assault through applications for particulars. These applications seek more specific information when the initial statement of claim is overly generalized. A broadly drafted statement of claim with minimal details can pose challenges for the defendant in formulating a proper response. In such instances, the defendant has the right to receive particulars about the claim to effectively prepare their reply.

If the defendant was previously convicted criminally of sexual assault, you can expect counsel for the plaintiff to include those details in the claim. Having a criminal conviction for sexual assault significantly weakens the defence because of the higher standard of proof required.

Is the Limitations Act a Defence?

The Limitations Act 2002 is a legislation that establishes specific timeframes within which civil lawsuits must be initiated. For instance, in many legal matters, individuals have a two-year window from the time the injury transpired to file a lawsuit. Prior to 2016, this regulation also extended to cases of sexual assault, requiring victims to file a lawsuit against their alleged attacker within two years of the assault or two years from the moment the victim comprehended the gravity of the incident.

In light of the #MeToo movement, significant changes were made to the Ontario Limitations Act 2002. The amendment eliminated the limitation period for sexual assault cases, enabling victims to file civil lawsuits against their alleged perpetrators regardless of the time that has elapsed since the incident occurred. This alteration has resulted in a notable increase in the number of civil sexual assault lawsuits being filed in Ontario.

Discovery in a Civil Sexual Assault Trial

Discovery is a crucial phase in legal proceedings during which opposing parties exchange all relevant documents related to the case. According to Rule 30.02 of the Rules of Civil Procedure, parties are obligated to disclose all documents pertinent to the issues in the case or claim. The term “documents” encompasses a wide range of materials, such as medical records, clinical notes from treating physicians, records from therapists, psychologists, and counselors, as well as criminal records, education records, employment records, and tax records, among others. This is the point where evidence of criminal charges or convictions will be brought up by the plaintiff.

In sexual assault trials, discovery often becomes contentious due to privilege concerns surrounding sensitive records like medical documents. Despite potential privileges, the general rule mandates the production of documents if they are pertinent to the trial issues. Establishing relevance is relatively straightforward in civil sexual assault cases due to the comprehensive nature of the plaintiff’s pleadings.

Furthermore, in constructing their defense, defendants frequently attempt to argue that any harm suffered by the plaintiff resulted from factors other than the defendant’s actions. Consequently, almost any aspect of the plaintiff’s life might be deemed relevant, allowing the defendant to attribute the damage to external factors. For instance, if the plaintiff claims to have developed a drinking or drug problem due to trauma inflicted by the accused, the defendant might contend that other elements in the plaintiff’s life contributed to their substance abuse. Since the defendant is responsible for compensating the plaintiff only for damage directly caused by the defendant, introducing other relevant factors from the plaintiff’s life might reduce the damages the defendant is obligated to pay if the court rules in favor of the plaintiff.