September 2015

SEXUAL ASSAULT

Sexual Abuse and Limitation Periods in Ontario Defence Strategies in Publication Agreement No. 40037155 Sexual Assault Claims | The Litigator Attacks on Memory Making a

September 2015 Lasting Difference FEATURE

Defence Strategies in Sexual Assault Claims: WHAT WAS OLDis NEW AGAIN BY SUSAN VELLA AND MICHAEL WILCHESKY

Targeting the Plaintiff and his or her family

30 The Litigator | SEPTEMBER 2015 SEPTEMBER 2015 || The Litigator 31 I. Introduction II. Claims Against Parents for sexual abuse) in allowing their child to In representing victims/survivors of Contribution and Indemnity participate in that activity. various forms of sexual abuse and We are seeing, with alarming frequency, Such a tactic often provokes an misconduct over the past 25 years, we claims for contribution and indemnity emotional response in the plaintiff have observed that, as in other areas brought by against the who, understandably, feels responsible of litigation, what was old is new again parents (or the legal guardians) of the for having caused her/his parents to in terms of defence strategies. Most victim of sexual abuse.3 These claims are be dragged into the litigation, with the prominent of the new “old” defence being asserted by way of counterclaim, associated stress and cost of now having tactics which have resurfaced, albeit where the parents have asserted Family to defend themselves, when the plaintiff perhaps with more vigour, are: Act4 claims, third-party claims, had no intention of blaming her/his (a) targeting the plaintiff’s family where the parents are not parties to the parents. This tactic also risks isolating members, most notably parents main action, and sometimes even by the plaintiff from her/his support or legal guardians, to “share” the way of an action that is separate and network. blame, independent from the victim’s action (b) targeting the plaintiff through for damages arising out of sexual abuse. Circumscribing the Claim claims or counterclaims, The latter will often occur where the One strategy to avoid the risk of having and main action has already progressed a plaintiff’s parents dragged into the (c) targeting the plaintiff through a beyond examinations for discovery litigation is to circumscribe the claim contributory negligence claim. and is ready for mediation. The timing and limit it to only those damages solely of issuing independent actions raises caused by the named defendants. This The defence strategies explored in concerns about whether a purpose of strategy was used successfully in Taylor this article may reflect the defence the contribution and indemnity action v. Canada (Minister of Health),5 which ’s response to the difficulty faced in is to try and encourage victims to was a class action arising out of the defending “non-offending” defendants settle so as to spare their parents from surgical implantation of a jaw device. such as institutions, particularly where protracted litigation. In Taylor, the of Appeal held that vicarious liability is a viable theory. Typically, these contribution and where a plaintiff’s claim is restricted to The increasingly narrow scope of the indemnity claims will be asserted by the named ’s several liability, application of defences based on an institutional or corporate defendants (or that defendant has no basis upon which alleged expiry of a limitation period to more properly, their insurers), and not to seek contribution or indemnity from bar claims arising out of sexual abuse, the direct sexual offender. another person since contribution rights as prescribed by the Limitations Act, At the heart of this defence theory only arise where a defendant is required 2002,1 has further restricted the ability is the assertion that the victims’ to pay more than its proportionate share of the defence bar to shield institutional parents should not have entrusted their of a plaintiff’s damages. The Court of defendants from liability.2 This new children to the care of persons whom Appeal also confirmed that a court is reality may have caused defence a credible institution (e.g. religious, entitled to apportion fault against non- to search for ways in which to discourage educational, health care or residential parties at in order to specify the plaintiffs from pursuing their claims to facilities) authorized to be placed in several liability of the defendants in the trial, or otherwise reduce their clients’ charge of those children for particular action. exposure to damages. purposes. In some cases, the only This approach was recently followed This article will explore each of alleged bases for this type of claim are in Johnston v. Sheila Morrison Schools.6 these defence strategies, identify some the boilerplate allegations that parents In Johnston, the plaintiffs sought of the issues plaintiff’s counsel must be allowed their child to participate in an damages for sexual abuse suffered at the alert to when confronted with one or activity operated or sanctioned by the hands of their teacher. The school board more of these strategies in an action, institutional defendant and the parents sought to commence third party claims and make some proposals for resisting knew, or ought to have known, the against the parents of the plaintiffs. them. inherent danger (materializing in the The Divisional Court (overturning

32 The Litigator | SEPTEMBER 2015 the motions court) denied leave to and properly informed, the plaintiff’s • whether the issue is substantive or commence the third party claims on the should be able to represent procedural; basis that the plaintiffs had restricted both the plaintiff and her/his parents • the temporal relationship between their claims for damages to those without any serious risk of removal. the matters; amounts solely attributable to the school That said, sometimes conflicts arise • the significance of the issue to the board’s several liability. unexpectedly and, should that occur, immediate and long-term interests of However, in our view, this counter the plaintiff’s lawyer may well have to be the clients involved; and strategy should not be the first recourse, removed as counsel of record for all of • the clients’ reasonable expectations in absent of actual negligence the parties. retaining the lawyer for the particular on the part of the parents. Rather, matter or representation.9 the better course of action may be to Conflict of Interest Rules recommend that the plaintiff maintain What follows is a short primer on the her/his full claim for damages and allow principles and procedures which a the defendants to attempt to prove that lawyer should consider when faced the parents were negligent. This type with a request to represent the parents of a case might be suitable for a of a client, when the parents have been trial since the sensibilities of blaming served with a claim seeking contribution the parents for having entrusted the and indemnity. care of their children, appropriately, A lawyer cannot act or continue to to an institutional service provider (be act for a client where there is a conflict it educational, religious, healthcare or of interest, except where permitted by otherwise) may not sit well with a jury Rule 3.4. A conflict of interest is defined of peers. as follows: At the heart of this defence theory is the Conflict of Interest Concerns “… [P]otential risk that a lawyer’s Once a claim for contribution and loyalty to or representation of a assertion that the indemnity is asserted against the parents client would be materially and victim’s parents should of the plaintiff, it is likely the plaintiff adversely affected by … the will ask her/his lawyer to consider lawyer’s duties to another client…. not have entrusted representing the interests of the parents. In this context, “substantial risk” their children to the There is much merit to this request since means that the risk is significant the plaintiff’s lawyer will already be and plausible, even if it is not care of persons whom familiar with the case, thereby delivering certain or even probable that the a credible institution both efficiency and economy of fees. material adverse effect will occur. However, this raises potential conflict The risk must be more than a (e.g. religious, of interest concerns under the Rules mere possibility; there must be a educational, health of Professional Conduct,7 and defence genuine, serious risk to the duty of counsel have, in our experience, been loyalty or to client representation care or residential proactively suggesting that plaintiffs’ arising from the retainer.”8 facilities) authorized to counsel may now find themselves in conflict of interest situations. Factors for the lawyer’s consideration be placed in charge Section 3.4 of the Rules sets out the in determining whether a conflict of of those children for relevant provisions relating to conflicts interest exists include: particular purposes. of interest. However, if the Rules are • the immediacy of the legal interests; carefully followed, and the plaintiff and • whether the legal interests are her/his parents are legally competent directly adverse;

SEPTEMBER 2015 | The Litigator 33 Rule 3.4–2 provides that a lawyer lawyer should consider the implications joint representation of the plaintiff and shall not represent a client in a matter of that retainer12 and, specifically, that her/his parents.14 when there is a conflict of interest, if a contentious issue arises between An important consideration in these unless there is an express or implied the clients, the lawyer will be precluded motions will be the proposition that a from all clients (which must from providing either client with advice litigant should not be deprived of her/ be fully informed and voluntary after on that issue and, depending on the his choice of counsel without good disclosure) and it is reasonable for the circumstances, may have to withdraw cause. The are clear that: lawyer to conclude that she/he is able from representation of all clients. to represent each client without having Special considerations apply where “… If a litigant could achieve an a material adverse effect upon the the plaintiff is a person under a legal undeserved tactical advantage over representation of, or loyalty to, the other disability, and a litigation guardian (or the opposing party by bringing a client. the Office of the Public Guardian and disqualification motion or seeking Rule 3.4–2 (and the associated Trustee or the Office of the Children’s other ‘ethical’ relief using the Commentary) has several important Lawyer) has been appointed to protect ‘integrity of the administration practical implications for a lawyer her/his interests. Notably, where the of ’ merely as a flag of contemplating representing both the litigation guardian (e.g., a parent of a convenience, fairness of the plaintiff and her/his parents who have minor who was abused) becomes the process would be undermined.”15 been made the subject of a contribution subject of a contribution and indemnity and indemnity claim by a defendant. claim, another litigation guardian should Is Homeowners Insurance an Option? The lawyer must inform the plaintiff be appointed, and it may be prudent to Where the parents of a victim are faced of the relevant circumstances and the put the Office of the Children’s Lawyer, with a contribution and indemnity reasonably foreseeable ways that a or Office of the Public Guardian and claim, it will be important to consider conflict of interest could adversely affect Trustee, as applicable, on notice as whether any potential homeowners the plaintiff’s interests. For example, well.13 In such cases, it is essential that insurance provides a duty to defend and/ should the plaintiff decide at a future the legal representative of the plaintiff or indemnification. Notice of the claim time that the parents were in fact wholly be urged to obtain independent legal should be promptly provided to the or partially to blame for the sexual advice before consenting to a joint insurer. If there is potential insurance abuse, the lawyer would not be able to retainer. coverage giving rise to a duty to defend, assert that position while representing the insurer may appoint independent the parents. This advice should be Can a Defendant Bring a Motion to counsel for the parents. provided by the lawyer both in person have the Plaintiff’s Lawyer Removed and then reflected in correspondence. as Lawyer of Record? III. Defamation Claims Furthermore, while not a prerequisite The short answer is “yes”. Where there is In years past, a defamation claim to obtaining the consent, it is wise to a question of impropriety on the part of would often be asserted by way of a recommend that the plaintiff and the a lawyer, any other lawyer, as an officer counterclaim to the main action in parents obtain separate independent of the court, has standing to bring the a sexual abuse claim. This trend has legal advice before deciding question before the court for resolution. changed somewhat with the aggressive whether to provide consent.10 If that These types of motions raise a potential tactic by some alleged offenders of recommendation is declined, the fact conflict of interest on the part of the initiating a defamation claim against that the recommendation was made and lawyer which, if not properly resolved, the alleged victim of abuse before any was declined should also be reflected in could amount to an “impropriety on the claim arising from sexual abuse is correspondence. part of the ”. Before bringing advanced. This tactic may be intended Furthermore, the lawyer must advise such a motion impugning the integrity to send a message to the victim and the each of the clients and prospective clients of plaintiff’s counsel, there must be community that it is the alleged offender of the Rules relating to joint retainers.11 reasonable grounds to bring the motion, is the wronged party. This tactic will also Before accepting a joint retainer, the presumably beyond the mere fact of often force the victim to counterclaim

34 The Litigator | SEPTEMBER 2015 for damages arising from sexual abuse, they sent out emails to family members had been traumatically repressed for sometimes before she/he is ready to start accusing him of sexually abusing many years. Furthermore, the court such litigation from a psychological or them when they were young girls. The found that the plaintiff had a legitimate emotional perspective. court did not accept the defence of concern to uncover her “veiled past” The defence of justification, or truth, justification, and further held that the with the assistance of those people with is an absolute defence to this . defence of qualified privilege was not whom she had grown up, and that there However, a belief in the truth will not made out. Specifically, the court found was no malicious intent on her part. As suffice; rather, the defendant/alleged that the sisters’ email statements about part of that search for the truth (which victim must prove the truth of the their uncle were not subject to qualified was being revealed in stages through impugned statements.16 privilege despite testimony from a fragmented and recovered memories), it The defence of privilege is also psychologist to the effect that openly was appropriate that she describe to her available to resist defamation claims. discussing abuse was the start of the entire family circle what was happening Absolute privilege attaches to certain healing process. The court held that to her memory and the reasons for that communications which, for example, “[w]hile [the psychologist’s] position process. The court found that although occur during, incidental to, or in about the abuse being brought out into some or all of the family members may furtherance of judicial or quasi-judicial the open may indeed bode well for her have found the disclosures distasteful proceedings. No action for defamation clients and her therapeutic practice, as and offensive (her family apparently can lie from statements that were a matter of legal principle to suggest sided with the brother in the ), absolutely privileged, for example that this gave rise to some wholesale they had not only an interest but a when made in the course of witness substantiation for protection from familial duty to consider this “dirty preparation or under oath in a legal liability under the qualified privilege family secret” and give their sister, proceeding.17 umbrella is not sustainable”.21 sister-in-law and aunt at least a modest The defence of qualified privilege In contrast with the court’s decision benefit of a doubt as to the validity of results in a conditional immunity that in Vanderkooy, is the analysis found in her claims. attaches to communications made the more recent decision in Whitfield v. During closing submissions, the for certain specified purposes. Where Whitfield.22 In that case, the plaintiff’s defendant relied on the in qualified privilege applies, the maker claims of sexual abuse and other Vanderkooy. In his consideration of of the impugned statements will be misconduct were validated, and thus the that decision, in obiter, Justice MacIsaac shielded from liability for defamation, defence of justification disposed of the stated that the court in Vanderkooy provided that the statements were made counterclaim for defamation. However, erroneously conflated the concept of without malice. Generally, the doctrine in obiter dicta, the trial court addressed an interest into that of a duty, when the of qualified privilege arises when a the issue of qualified privilege. The defence of qualified privilege recognizes person who makes the communication plaintiff admitted to the publication both distinct purposes.23 By following has an interest or a duty (legal, social or of all of the alleged defamatory the analysis reflected in the decisions moral) to make it to the person to whom communications about her brother rendered in B.(P.)24 and N.(R.),25 it is made, and the person to whom it alleging various forms of sexualized and Justice MacIsaac endorsed the broader is made has a corresponding interest or cruel behaviours. The communications approach to the qualified privilege duty to receive it.18 consisted of 14 separate pieces of analysis by recognizing that an interest, The defence of qualified privilege correspondence to various members such as the public interest, may justify a where an individual’s sexual abuse of her extended family along with a disclosure in the absence of a duty, thus allegations have not been proven has number of non-relatives. satisfying this element of the defence. met with mixed success.19 The recent The court found that the plaintiff decision of Vanderkooy v. Vanderkooy20 believed in her heart and soul that she IV. Blame the Victim Defence sent shock waves among the plaintiffs’ had been the victim of unrelenting Certain institutional defendants, many bar. In that case, the plaintiff successfully sexual abuse at the hands of her brother through insurance counsel, have, of sued his nieces for defamation after and that her memories of these events late, been asserting defences based in

SEPTEMBER 2015 | The Litigator 35 contributory negligence and grounded the institutional employer or from a defendant’s response to a plaintiff’s in the factual allegation that the her/his own parents or any other claim for sexual assault as an aggravating plaintiff is in part to blame for the persons in authority in order to factor. sexual abuse that she/he suffered for stop or prevent the alleged sexual failing to extricate herself/himself abuse on the part of the offender V. Conclusion from the abusive situation.26 These when she/he knew or ought to have While these defence strategies are allegations have been asserted even known that such assistance would likely to meet with little, if any, success, in situations where the plaintiff was a have been provided and effective in they pose further barriers to victims child or teenager at the time the abuse the circumstances. seeking compensation arising from occurred. sexual abuse by creating delay, adding Examples of such pleadings include We have encountered these types of to the already intense emotions that allegations that the plaintiff: pleadings in various contexts, including surround these types of cases, and (a) failed to remove herself/himself by educational institutions where the increasing legal costs. from the circumstances in which victim was a minor student at the time This article has attempted to expose she/he alleged the sexual abuse of the sexual abuse and the offender some of the new “old” defence strategies occurred when she/he had was the victim’s teacher or a powerful that are being asserted with increasing opportunities to do so; authority figure within the school. frequency, and to make proposals for (b) failed to report the alleged sexual This tactic suggests that at least some of how plaintiffs’ counsel can counter abuse on the part of the offender to our school boards and private schools them. the institutional employer or to her/ (and their respective insurers) still his own parents or any other person do not fully grasp the coercion and Susan Vella is a in a position of authority in a silencing which results from a teacher’s member of OTLA reasonable and timely manner when abuse of his/her power, authority and and practices with she/he had opportunities to do so; trust over his/her students, and which Rochon Genova LLP (c) concealed the alleged sexual abuse prevents the students from being able in Toronto, Ontario and other conduct or behaviour to extricate themselves from the abusive on the part of the alleged offender situation. from the institutional employer, and We are unaware of any reported Michael Wilchesky from her/his own parents and other decisions in which a defendant in an practices with persons in authority, when she/he action arising from sexual abuse has Rochon Genova LLP knew or ought to have known that successfully asserted a defence based in in Toronto, Ontario those persons had no other means contributory negligence. of obtaining knowledge of the In our view, this type of “blame the alleged sexual abuse on the part of victim” approach demonstrates a lack NOTES the alleged offender; of insight and sensibility on the part 1 S.O. 2002, c. 24, Sch. B. [the “Limitations (d) failed to take reasonable steps and of the institution and only serves to Act, 2002”] precautions for her/his own safety further humiliate the victim and delay 2 Indeed, Premier Wynne’s Action Plan (“It’s Never Okay: An Action Plan to Stop and protection; her/his psychological recovery. An Sexual Violence and Harassment”; March (e) permitted the alleged sexual abuse appropriate response by the plaintiff 2015) appears to foreshadow further amendments to the Limitations Act, 2000 on the part of the alleged offender in these circumstances is to seek which will further reduce the availability of to continue when she/he knew or additional aggravated damages against this defence. 3 ought to have known that she/he the defendant asserting this defence. See sections 1, 2 & 5 of the Negligence Act, R.S.O. 1990, c. N.1 [the “Negligence Act”]. had the means available to prevent Support for this position is found in 4 R.S.O. 1990, c. F. 3 27 further abuse; cases such as P.D. v Allen and S.Y. v 5 90 O.R. (3d) 561 (C.A.) [Taylor] (f) failed to request assistance in a F.G.C.,28 which recognize that a trier 6 2012 CarswellOnt 2058 (Div. Ct.) reasonable and timely manner from of fact is entitled to take into account [Johnston]

36 The Litigator | SEPTEMBER 2015 7 The Rules of Professional Conduct were recently amended, effective October 1st, 2014 [the “Rules”], and include important clarifications to the Rules relating to conflicts of interest, and the associated Commentary. EXPERIENCED · TRUSTED · PROMPT 8 Rule 3.4-1, and associated Commentary Personal Injury Investigations 9 Commentary to Rule 3.4-1 Slips, Trips, Falls Ladder Failures 10 R. v Neil, 2002 SCC 70 [Neil] Motor Vehicle Accidents Municipal Liability 11 See Rule 3.4–5. Environmental Services Fire Investigations 12 See Rules 3.4–8 and 3.4–9. Building Deficiencies Code Compliance 13 Rules 3.2–9 and 3.4–5, and related Commentary; Rule 7.02 of the Rules www.caskanette.on.ca 1· 800 · 920 · 5854 of , Courts of Justice Act, R.R.O. 1990, Reg. 194 14 Caughey v. Gareau, [2003] O.J. No. 3817 (Master); Walker v. Phantom Industries Inc., 2006 CarswellOnt 7483 (Master) 15 Neil, supra note 11 16 A.M. Linden & B. Feldthusen, Canadian Tort Law, 8th ed (Markham: LexisNexis Canada Inc., 2006) [Tort Law], at 785-786 17 Tort Law, at 787; Watson v. M’Ewan, [1905] A.C. 480 (H.L.), at 486; Amato et al. v. Welsh et al., 2013 ONCA 258 (C.A.), at para. 34 18 Tort Law, supra note 17, at 791; Adam v. Ward, [1917] A.C. 309, at 334 (per Lord Atkinson) 19 For example, see N.(R.) v. S.(S.L.) [email protected] 1-877-250-6682 www.kval.ca (1993), 120 N.S.R. (2d) 228 (T.D.) [N.(R.)]; C.(L.G.) v. C.(V.M.) (1996), 26 B.C.L.R. (3d) 107 (S.C.); G.(R.) v. Christison, [1997] 1 W.W.R. 641 (Sask. Q.B.); and B. (P.) v. E. (R.V.), 2007 BCSC 1568 (B.C. S.C.) [B.(P.)]. 20 2013 ONSC 4796 [Vanderkooy] 21 Vanderkooy, supra note 21, at para. 193 22 2014 CarswellOnt 5948 (S.C.J.) [Whitfield] 23 Whitfield, supra note 23, at paras. 82 - 88 24 supra note 20 25 supra note 20 26 These allegations are made pursuant to s. 3 of the Negligence Act, supra note 4. 27 2004 CanLII 4033 (S.C.J.), at paras. 323 – 326 28 1996 CanLII 6597 (B.C.C.A.), at para. 57

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