Lawyers for Victims of Sexual Assault

The #MeToo and #TimesUp movements have garnered significant attention to the issue of sexual assault, which has been ignored for too long. From a civil lawsuit perspective, it is important to consider several key points. In 2016, the Ontario Limitations Act was amended to remove all limitation periods for civil claims based on sexual assault, allowing such claims to be filed at any time after date the sexual assault occurred.

In criminal cases, the Crown must prove guilt beyond a reasonable doubt, whereas civil cases require proof on a balance of probabilities, which is a lower standard. Civil suits under the Ontario Rules of Civil Procedure require victims to disclose personal details and compel defendants to testify under oath, unlike in criminal proceedings. This distinction arises because, in criminal proceedings, the case is the Crown against the perpetrator, while in civil suits, it is the victim themselves directly against their perpetrator.

Victims have more control over civil cases, deciding whether to settle or proceed to trial, unlike in criminal cases where the prosecutor controls the process. However, potential plaintiffs must consider the costs of civil lawsuits, including the possibility of paying the defendant’s legal fees if they lose.

In Ontario law, financially unstable defendants may need to provide an initial retainer because insurance generally does not cover civil damage awards. Some lawyers, however, might accept cases on a contingency fee basis. Civil settlements in Ontario frequently contain gag orders and clauses denying liability, which can be contentious since many victims desire acknowledgment of the wrongdoing by the perpetrator. Gag orders, in particular, prevent the parties involved from discussing the terms of the settlement or the details of the case publicly. While these orders aim to protect the privacy of the parties and maintain confidentiality, they can be seen as silencing the victims and preventing public awareness of the misconduct. This lack of transparency can hinder other potential victims from coming forward and may allow the perpetrator to avoid full accountability. Additionally, in Ontario, sexual assault victims in the workplace might qualify for short and long-term disability benefits and may consider suing their employers, depending on the specific circumstances.

As a victim/survivor of sexual assault, what options do I have for taking legal action?

If you are a victim of sexual assault in Ontario and are considering taking legal action, there are a number of options available to you. First, you can report the assault to the police. The police will investigate and, if there is sufficient evidence, lay criminal charges against the perpetrator. The Crown Attorney will then prosecute the case on your behalf, aiming to secure a conviction and appropriate sentencing for the offender.

In addition to criminal charges, you can file a civil lawsuit against the perpetrator. This allows you to seek compensation for damages such as pain and suffering, loss of income, and medical expenses. In some instances, you may also be able to sue institutions or organizations if they were negligent in preventing the assault.

Ontario offers several victim services to support survivors throughout this difficult process. The Victim/Witness Assistance Program (VWAP) provides information, assistance, and support to victims and witnesses of crime during the criminal court process. The Victim Crisis Assistance Ontario (VCAO) provides immediate, on-site support, including emotional support, practical assistance, and referrals to community services. Additionally, Sexual Assault/Rape Crisis Centres offer counselling, support groups, and other services tailored for survivors of sexual assault.

If the assault happened in a context involving discrimination, such as at work or school, you might file a complaint with the Human Rights Tribunal of Ontario (HRTO). The HRTO can order remedies, including compensation for injury to dignity, feelings, and self-respect.

To navigate this process, it is important to take specific steps. First, seek medical attention to ensure your health and well-being. If you choose, report the assault to the police and preserve any evidence, such as clothing, messages, or other relevant items. Contact a lawyer for legal advice to understand your options better. Additionally, reach out to victim services for emotional and practical support.

Common Sexual Assault Defences used by Lawyers

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What is the VQRP+?

The Criminal Injuries Compensation Board (CICB) in Ontario was eliminated as of September 30, 2019. This decision may reflect how the government is deprioritizing the challenges faced by survivors. Government assistance is crucial in enabling these victims to seek necessary support.

The Ontario government replaced the CICB with the Victim Quick Response Program+ (VQRP+), an administrative process intended to provide quicker and more streamlined support to victims of crime. Unlike the CICB, which involved adjudicated hearings, the VQRP+ handles applications without the need for a tribunal.

Under the VQRP+, victims can receive financial assistance for expenses related to the crime, such as emergency expenses, funeral costs, and other immediate financial needs. However, the new program has limitations, including caps on certain types of compensation, which might be less comprehensive than the former CICB system.

New Changes to Sexual Assault Laws in 2024

Recent Cases

Zando v. Ali, 2018 ONCA 680

The Ontario Court of Appeal heard an appeal concerning the determination of damages for sexual assault in the case of Zando v. Ali. In order to recover damages for a sexual assault that happened on June 22, 1999, Dr. Syed N. Ali, the appellant, was sued by Dr. Iram Kareemi Zando, the respondent. At Sarnia General Hospital, the two parties worked as doctors and colleagues. Dr. Zando said that Dr. Ali had sexually abused her at home, which caused unfavourable reactions and harassment at work. The lawsuit against Dr. Ali went forward, while the lawsuits against the other defendants were resolved out of court.

Dr. Zando was granted $175,000 in general damages and $25,000 in punitive damages, in addition to pre-judgment interest and expenses, after the trial court ruled in her favour. In his appeal, Dr. Ali only contested the decision to provide punitive damages and the determination of non-pecuniary damages.

The Court of Appeal dismissed the appeal and maintained the trial judge’s ruling. The judge dismissed the appellant’s claims that the respondent’s psychological problems were not appropriately attributed to her and that the damages were excessive. The trial judge had properly taken into account the non-pecuniary damages considerations outlined in Blackwater v. Plint, the Court of Appeal stated, including the details of the assault and its effects on Dr. Zando.

Additionally, the appellant contended that it was improper for the trial judge to grant punitive penalties without taking into account whether the non-pecuniary damages would have been adequate to accomplish the objectives of denunciation and deterrent. The trial judge made her decision based on the morally repugnant nature of the appellant’s actions and the lack of criminal penalty, according to the Court of Appeal, which found no error.

The Court of Appeal concluded by upholding the trial judge’s damages verdict, highlighting the reasonableness of the payment in light of the seriousness of the sexual assault and the requirement for punitive measures. The respondent was granted costs and the appeal was

Lambert et al v. Lambert 2022 ONSC 6432

Here, the judge granted partial summary judgement against the defendant on the issue of liability because of his previous guilty plea to indecent assault charges against the plaintiffs. Despite the typical reluctance to grant partial summary judgment, the Court of Appeal indicated that in civil sexual assault claims where the defendant has pleaded guilty, partial summary judgement is almost always appropriate.

The defendant had pleaded guilty in 2004 to three counts of indecent assault that occurred between 1967 and 1975. In his defence, the 84-year-old defendant, residing in a long-term care home and suffering from dementia, denied liability for the plaintiffs’ damages. The plaintiffs argued that his guilty plea and criminal convictions constituted an irrefutable basis for civil liability under section 22.1 of the Evidence Act, RSO 1990, c. E23, and claimed that allowing the defendant to deny liability would be an abuse of process.

The Court emphasized that a prior criminal conviction serves as proof of the essential facts of the offence in a civil action, which the defendant cannot contest. The Evidence Act supports this by treating the criminal conviction as evidence of the offence’s facts, thus eliminating the need to prove these facts again in civil court. The doctrine of abuse of process prevents the convicted person from relitigating these facts.

Partial summary judgment was found to be an acceptable solution in this case since the defendant’s guilty plea was a clear-cut admission, and no evidence suggested the plea was involuntary. The Court found that it would be an abuse of process to allow the defendant to contradict his guilty plea in the civil proceedings.

The ruling distinguished the issue of liability from the issue of damages, providing early clarity for both parties. This case shows that when partial summary judgment is warranted, particularly in civil sexual assault claims with prior criminal convictions or guilty pleas.

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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.