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Defend Civil Sexual Assault Claims

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 civils 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.

Common Sexual Assault Defences used by Lawyers

Donich Law - International Child Pornography Investigations we have Defended

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.

New Changes to Sexual Assault Laws in 2024

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.

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Frequently Asked Questions

Common Evidence used in Civil Sexual Assault Cases

Medical or Clinical Records

In civil sexual assault cases, medical records hold significant importance. Clinical records from treating physicians serve as crucial trial evidence. Additionally, therapists’ or counselors’ records help establish the extent of the plaintiff’s injuries. Despite the general privilege surrounding medical records, they are usually admissible in civil sexual assault trials if they are relevant to the case. Defendants might need to request these documents via a court motion, which often becomes a contentious aspect of the trial due to the sensitivity of private medical information.

Character Evidence

Character evidence, often testimonial, sheds light on the personal traits of the individuals involved, typically the plaintiff or defendant. In sexual assault cases, the defendant’s character is frequently under scrutiny, especially if the defense denies the allegations by claiming the defendant is “not the type” to commit such offences.

Criminal Conviction

When individuals face both criminal charges and civil lawsuits for sexual assault, these proceedings usually occur simultaneously due to existing limitation periods. A criminal conviction can serve as strong evidence in the civil case. However, it alone is insufficient to secure a judgment for the plaintiff. The plaintiff must prove at the civil trial that the damage or injury resulted from the accused’s alleged assault, regardless of the criminal outcome.

Prior Testimony

Victims of alleged sexual assault can pursue civil lawsuits regardless of criminal charges. In cases where criminal charges and court proceedings have taken place, both parties can use testimony from the criminal case in the civil proceedings, with certain conditions met, including the opportunity for cross-examination and consistent parties/representatives in both proceedings.

Hearsay Evidence

In sexual assault cases, plaintiffs often lack independent evidence to prove their claims. Hearsay evidence, statements made by individuals outside of the legal proceeding, becomes essential. Courts assess the necessity and reliability of hearsay evidence on a case-by-case basis. Factors considered include corroborating evidence, absence of fabrication motive, and absence of alternative ways to present the evidence. Plaintiffs must demonstrate these factors to the court for hearsay evidence to be admissible.

What are some Defences to Sexual Assault in Civil Cases?

Denial of the Allegations

One of the most common defences to civil lawsuits regarding sexual assault allegations is a total denial of the veracity of the allegations. If the allegations made against the defendant are untrue, the most basic defence is to deny these allegations to the court. If this defence strategy is chosen, the defendant will likely be required to provide some evidence to prove that they did not commit the offence. Unlike in criminal matters, a defendant in a civil lawsuit must reply to the allegations made against them. Failure to do so may result in a default judgement in favour of the plaintiff. As such, if the defendant’s trial strategy is to deny the incident occurred at all, they must provide some evidence to the court to bolster their version of events. For example, the defendant may provide the court with an alibi to prove they were in another location at the time of the alleged incident and thus could not have committed the assault.


Another common defence in civil sexual assault trials is consent. This defence consists of the defendant admitting that sexual contact of some sort occurred, but that it was consensual and thus not a sexual assault. For such a defence to succeed, the defendant must provide the court with sufficient evidence to convince the trier of fact that the consent was genuine. The court will not find that genuine consent occurred in cases where the plaintiff sought out the specific acceptance of the defendant or looked up to the defendant in some way. On the other hand, courts have decided in favour of the defence where the defence of consent has been utilized and where the defendant can show that the plaintiff had an opportunity to prevent the assault and failed to do so.

What are Damages?

Damages are generally the monetary compensation sought by the plaintiff for the injury caused as a result of the actions of the defendant. From the outset of the lawsuit, the plaintiff will have indicated to the court the exact amount of damages they are seeking. Once the case has completed, the court will determine whether to award all or part of the damages requested by the plaintiff. There are different types of damages that can be requested by the plaintiff including; general damages for pain and suffering, damages for the costs of future care, damages for the cost of future lost wages, aggravated damages which include intangible injuries, special damages such as out-of-pocket expenses, past lost wages and punitive damages which the court imposes to punish the defendant for offensive conduct.

General Damages

When determining how much damages to award the court will take into consideration virtually all relevant factors. When determining the fair assessment for general damages the court will examine the harm that resulted from the abuse, the duration the abuse (one occasion or multiple occasions), factors relating to the victim including their age at the time of the assault and any other factors that the court deems relevant such as the plaintiffs ability to work or loss of enjoyment of life. In some situations an expert witness may be necessary to provide the court with evidence to show the injury suffered by the plaintiff. A defendant is only legally responsible to compensate the plaintiff for the damage they caused and need not place the plaintiff in a better position than they were prior to the assault. As such, the process of determining the damages to award can be a complicated process.

Punitive Damages

Aside from the compensatory damages granted by the court to cover direct losses incurred by the plaintiff due to the assault (such as lost wages and medical expenses), punitive damages might also be awarded. These damages are granted in cases where the defendant has committed an act that deeply disturbs the moral conscience of the court. Furthermore, punitive damages can be given if the defendant’s behavior was callous, arrogant, or violated the ordinary standards of morality. Generally, punitive damages are not awarded if the defendant has already been criminally convicted based on the same set of facts. However, if the defendant held a position of trust or authority over the plaintiff, this rule does not apply. In such cases, the court has the discretion to award punitive damages, irrespective of whether the defendant was criminally convicted for the sexual assault. Defence counsel is often fighting various forms of damages which will be used by the court to assess the overall harm to the complainant. It is possible to defeat certain forms of damages and not others.

Can you be sued by Former Employees?

In specific situations, yes, employers might bear vicarious liability for sexual assaults committed by their employees. These institutions can also include school boards, churches or other governing bodies.

Typically, the employer’s business entity is named as the defendant. Whether or not an employer will be deemed vicariously liable is determined by the courts on a case-by-case basis. To establish liability, the courts first review relevant precedents. They examine past cases with similar fact patterns and, if found, use these precedents to guide their decision. If no comparable past case exists, the courts consider broader public policy factors. These include: (1) the scope and authority of the employer’s enterprise, (2) the relationship between the risk of employee misconduct and the employer’s activities, and (3) the connection between the defendant employer, the employee, and the employee’s actions. The court evaluates these factors to make a decision regarding the employer’s liability.

What is Historical Sexual Assault?

Following the 2016 amendments to the Ontario Limitations Act 2002, there has been a significant surge in historical sexual assault lawsuits. It has become increasingly common for survivors of sexual assault, especially those who were unsuccessful in criminal proceedings against the accused, to pursue compensation through civil lawsuits. Public support and increasing awareness about sexual misconduct has also led to an increase in claims. However, like many claims, not all are legitimate or necessarily as aggravating as stated in the pleadings. Each case must be litigated based on its own facts.

In such legal actions, various allegations can be raised. Typical claims encompass sexual assault, intentional infliction of mental suffering, and sexual battery. Within a civil context, sexual assault denotes deliberate actions by the accused that create an apprehension of imminent sexual contact. Intentional infliction of mental suffering arises when the defendant’s behavior is outrageous and intended to harm the plaintiff or knowingly causes harm. Sexual battery, a legal remedy for sexual misconduct, mirrors civil battery but involves sexual physical contact. Notably, in a civil sexual battery case, the plaintiff isn’t required to prove injury resulting from the contact; instead, they need only establish that the defendant intentionally engaged in sexual touching.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.