I think most of us are used to depictions of criminal trials—”Law & Order” etc.—when it comes to sexual assault. But you’re a lawyer who deals in the civil courts. What is the difference between a civil and criminal trial?
The first thing to understand is that in a criminal trial, you are not a party to that proceeding. You are a witness of the Crown, and the Crown does not represent you or your best interest, the Crown represents the state. Civilly you retain a lawyer, and that lawyer represents you and your best interest and is advocating for you. [Another] significant difference is that the onus of proof is far higher in a criminal process, where you have to prove someone’s guilt beyond a reasonable doubt. That’s a very high threshold. From a civil litigation perspective, the onus is a balance of probabilities, or essentially whether the thing is more likely than not to have occurred.
It is far easier, in many respects, to prove that someone is liable for perpetrating a sexual assault civilly than it is criminally.
Can a civil suit result in jail time or is that only for criminal cases?
The criminal process is about incarceration, whereas the civil process is about compensation. The civil litigation process is a less onerous, more easily navigable, and more supportive means for accessing justice and compensation for sexual assault survivors.
So what if one’s perpetrator is broke? Is there any point to a civil suit if your assailant has no money?
That’s an excellent question, and the answer that all lawyers love to give is—it depends. Unfortunately, it’s easier to sue an institution or an organization that possibly has insurance coverage for some of these types of acts, rather than an individual defendant, who possibly doesn’t have any assets. Suing an individual for sexual assault can pose more of an obstacle than suing an institution.
So if a perpetrator worked for a large restaurant group and was allowed to repeatedly harass and/or assault fellow employees, could one of those employees then sue the restaurant group?
There’s a legal test that is used to determine whether an employer can be held vicariously liable for the conduct of its employees. For example, we see vicarious liability on children aid’s societies for misconduct perpetrated by their foster parents. We see vicarious liability on church dioceses for the sexual misconduct on behalf of their priests. We see vicarious liability at times on school boards for the sexual misconduct of their teachers. And so, while this isn’t always a given when it comes to case law, this is a legal principle, and it is another way to hold corporations responsible for what happened, let’s say, in a restaurant itself.
There can be an amount of negligence in failing to sufficiently deal with allegations of sexual assault and harassment in your restaurant, if and when they come to your attention. The threshold for an employer to investigate in Ontario is whether that employer knew or ought to have known that something was transpiring. So, the requirement of submitting a formal complaint is not necessary. If an employer catches wind that something is transpiring, there is a duty to investigate on behalf of that employer. If it comes to light that they knew about sexual assault and abuse and harassment that was occurring, and did nothing and that abuse continued, they could very likely be held liable and negligent.
Can you give that to me in a nutshell?
If someone comes forward with a report of being sexually assaulted at a restaurant, and it has been determined somehow that other people had come forward previously to report the same perpetrator, and nothing was done to deal with that person or to address the possible threat to other employees, that’s significant negligence.
And what is the statute of limitations on something like this?
Well, Ivy, I’m so glad you asked because, in Ontario, there is absolutely no statute of limitations for sexual assault.
And what about sexual harassment or discrimination?
One of the important things to know is if you want to submit an application to the Human Rights Tribunal of Ontario, and that’s another conversation that we can have, but it’s important to know that that is another avenue when you are experiencing sexual harassment or any form of discrimination, under one of the prohibited grounds in the Ontario Human Rights Code. That tribunal only accepts applications for one year after the last incident. That is another viable option for people who do not want to wait the significant amount of time for a lawsuit to weave its way through the litigation process, or who don’t necessarily want to go through the criminal process for any sort of reason.
If you’re not dealing with the Human Rights Tribunal, and you’ve been sexually harassed, is that enough to sue, or does it have to be sexual assault?
It doesn’t necessarily have to be sexual assault. You will have to look at what case law exists out there, in terms of purely sexual harassment-based allegations. It’s a very holistic analysis from a civil perspective of any other thing people have experienced in their lives. So, for example, if there’s any pre-existing trauma, if there are any intervening events that might also contribute to someone’s emotional or psychological harm or lack of well being, you have to take all these things into account when considering whether or not it makes sense to actually proceed with a lawsuit. Because, if there isn’t a decent likelihood of recovering compensation, at the end of the process, for that person, it can actually be quite painful, and quite re-triggering for them. And, I can say that from a purely sexual harassment perspective, there isn’t a ton of case law on that. There has to be enough to make waiting the three to five years worth it for a civil litigation process.
For the people who think that they have a case, and want to go the civil route, what if they have no money? How do they get a lawyer? Is that out of reach?
What our firm, Jellinek Law Office, does is we take most of our cases on what we call a contingency fee basis, which means that we take a percentage of that person’s settlement, if and when they settle, to pay for our legal fees. So, that person is not required to pay for anything upfront. It is a bit of case by case basis. A percentage of the settlement is used to pay the lawyers when that person receives compensation at the end of the process. Whether that’s through a negotiated settlement or a court-ordered judgement for the defendant to pay compensation to what we call the plaintiff. So, just so you know, in civil proceedings, the survivor is referred to as a plaintiff, and the perpetrators are referred to as defendants. That’s separate from the criminal process, where you have a complainant who is the survivor and the accused person.
What about the “gold digger” argument, which used to be prevalent, that stated that a woman would only call rape on a powerful man because she was going after his money? Does going after someone in civil court have a lot of stigma against it? Or has that changed?
There are a multitude of reasons why people fail to report in the first place, including being afraid for their jobs, being afraid for their well being, being financially dependent on someone, the fear of not being believed—which has historically been perpetuated over and over and over again—the questions around consent, and whether that woman, quote-unquote, “asked for it.” And so, by the time someone actually gathers the courage to come forward, and to seek out a lawyer, and to pursue some sort of accountability, that person, whether it’s a male or female, is now looking at many, many years of litigation ahead of them. They’re looking at all of their personal information about their background, their childhood, any psychological counselling or therapy they’ve accessed, all of this documentation is provided to the other side. And they become embroiled in a protracted process of having their experience and their life analyzed to determine what their damages are. And by damages, I mean the harm from the act being alleged. We’re grappling with trying to parse out someone’s psychological harm, and what has caused it. We’re trying to assess their lives, and from a causation perspective, whether or not their experiences of sexual assault have led them to suffer harm in any way. And so, the prospect of filing a lawsuit just to go after money is an egregious myth.
Most of my clients feel that there’s no dollar figure that could return them to the person they were before they were assaulted. This process is absolutely devastating for most people at the outset. The hope is that they feel some sort of catharsis and empowerment by the end, but no one comes out unscathed.
On TV we have numerous examples of criminal trials on shows like “Law & Order SVU,” but the only depictions of civil court are tacky daytime shows like Judge Judy. The perception seems to be that there is more virtue in sending someone to jail, rather than punishing them financially.
Trying to receive compensation for a harm done to you that severely impacted, and possibly completely diminished your ability to work, shouldn’t be construed as a negative thing. We don’t put that sort of bias onto having charges laid against someone, and potentially sending them to jail. We should deconstruct the stigma around going after compensation, not as something negative, but as something helpful for getting people back on their feet, trying to get them the psychiatric and therapeutic services they need to be productive members of society.
What is your advice for anyone dealing with harassment or assault in the workplace?
If you do gather the courage to come forward, and you report your allegations of discrimination or harassment to an employer, I would very strongly encourage people take their own notes, including the date and time that you spoke to someone, the name of the person you spoke to. Keep your own records, document everything, so that if there’s ever any question about conversations, you’re not reliant on just your employer alone, you have your own set of notes.
Facts & Resources Across the Country
In Canada there is no time limit (called a statute of limitations) on bringing criminal charges for sexual assault – meaning you can swear a criminal complaint and file charges at any point in your lifetime. However if your abuser has died, the criminal courts will not be able to proceed with charges.
Many provinces have eliminated limitations periods (statutes of limitation) on civil cases for sexual assault. If you need representation, be sure to contact a lawyer who specializes in sexual assault/abuse and harassment within your province or territory for information on the limitations that may or may not apply to your situation.
For resources and help regarding sexual harassment and assault, you can go to the CANADIAN WOMEN’S FOUNDATION’s website for resources and support.
CANADIAN HUMAN RIGHTS COMMISSION
For a full list of human right’s organizations in your province or territory, please go HERE