In Ontario, sexual assault related claims have no limitation period, and in this recent decision, the Ontario Court of Appeal approved of a plaintiff amending her claim to include a sexual assault claim, which thereafter acted as a shield to protect her other non-sexual assault tort claims.
In effect, the Ontario Court of Appeal allowed the plaintiff to use section 16 of the Limitations Act, 2002, S.O. 2002 c. 24, Sch. B., as a shield. Why did the plaintiffs need the shield?
WHY WAS THE SECTION 16 SHIELD NEEDED?
The Plaintiffs in this case sued a police officer and the government for various torts including negligence, intrusion upon seclusion, extortion/intimidation, misfeasance in public office, and intentional infliction of nervous shock. The problem for the Plaintiff, however, was that all of these claims could easily be struck out or dismissed because they were started beyond the two-year limitation period applicable to those tort claims.
WHAT IS THE SECTION 16 SHIELD?
Pursuant to section 16 of the Limitations Act, sexual assault claims have no limitation period. But the Limitations Act goes further such that there is no limitation period applicable to any claim that relates to the sexual misconduct as against the alleged perpetrator and/or a third party that is somehow connected to those acts.
The appellate court agreed with the lower court ruling that the facts pleaded in the Statement of Claim were indeed in relation to sexual misconduct, and that there was a sufficient connection between the alleged sexual misconduct and the alleged non-sexual torts to afford all of the claims the protection of section 16 of the Limitations Act.
The Appellate court was clearly not at all concerned with the Plaintiff’s after-the-fact use of the sexual assault claim to preserve all of the other non-sexual tort claims that were at risk of being statute barred: and rightly so. The facts are the facts, and if the plaintiff was sexually assaulted, they should get the protection. An initial pleading drafting error or oversight should not be paramount in the result.
Indeed, all of this procedural wrangling could have been avoided had the Plaintiff simply included the claim for sexual assault on first instance. What this case tells us is that if any litigant finds themselves in the same position, it may not be too late to correct things.
X.H. v. Cota, 2022 ONCA 274
https://www.canlii.org/en/on/onca/doc/2022/2022onca274/2022onca274.html