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Civil Litigation

Gap in province's gender-based violence strategy

In order for Ontario to remain a leader in working toward ending gender-based violence, the province should include legislative reform as part of its strategy, Toronto civil sexual abuse lawyer Elizabeth Grace tells The Lawyer’s Daily.

The government strategy — It’s Never Okay: Ontario’s Gender-based Violence Strategy — launched March 1 is aimed at prevention and providing survivors with more support. The Lawyer’s Daily reports that it will focus on four areas: improving services for survivors; early intervention; public education to change attitudes; and improving the justice system’s response by providing free legal advice across the province to survivors of sexual assault.

The Lawyer's Daily reports that the strategy was developed through consultation with support agencies and survivors, and is a $242-million framework that’s building on four of the province’s action plans, including Ontario’s strategy to end human trafficking.

Grace, a partner with Lerners LLP, tells the publication the strategy has its benefits, but the province could take a stronger stand by building on legislative reform.

She explains that Ontario has made great strides in the past few years in getting rid of limitation periods for sexual assault cases in the civil context, but there are gaps that still must be addressed.

“To their credit, Ontario was a leader in dispensing with limitation periods" in the sexual-abuse area, she says. "Ontario also got rid of the limitation period to file an application with the Criminal Injuries Compensation Board.

"There’s no time bar, which is really important because a lot of these cases are historical in nature. It often takes people many years, or decades, to come forward,” Grace says.

“But there’s a gap, a big one, that I think the last three years has really highlighted and that is workplace harassment and violence. If you’ve been subjected to sexual harassment at work, one avenue is to go to the Human Rights Tribunal in Ontario and claim a breach of the Human Rights Code for sexual harassment and sexual discrimination.

"However, there’s a one-year limitation period that remains in pursuing a human rights application,” she adds.

Grace notes this creates an anomaly that could be addressed through legislative reform so that the limitation period is in line with the civil and criminal injury limitation periods.

In 2015, she presented recommendations for legislative reform to the Ontario Legislature's select committee addressing sexual harassment, the article states. Grace says one recommendation regarding amending existing legislation is long overdue and should be addressed through the province’s new gender-based violence strategy.

“It’s called the Victim’s Bill of Rights and it was introduced in 1995. It hasn’t been amended or modernized since then,” she says, adding that it’s a rare piece of legislation that deals with the intersection between the criminal and civil justice systems.

“I think it needs a rehaul and it needs a careful looking over because it’s an important vehicle for change and for achieving some of the goals stated in this new program,” she tells the legal publication.

One of the things Grace has observed in her sexual abuse work is the inconsistency in practices across the province, particularly on the criminal side with police and victim services.

“Here’s a vehicle [the Victim’s Bill of Rights] in which the province can put some meat on the bones in terms of how services are delivered. Obviously with some flexibility, but some bottom lines to ensure consistency in terms of how police and Crown attorneys respond,” she tells The Lawyer’s Daily.

In an interview with AdvocateDaily.com, Grace suggests the Victim’s Bill of Rights is also the perfect place for Ontario to clarify that there is no upper limit on damages for pain and suffering awarded to those who have experienced sexual abuse.

“This would bring Ontario in line with what courts in other jurisdictions like British Columbia have already said, which is that the conventional personal injury cap on damages for pain and suffering, which now sits at almost $350,000, does not apply to sexual assault."

"It’s long been recognized that sexual assault is a wrong unlike all others. There is no cap in defamation cases where damage to reputation is at issue," she says. "Surely, the profound harms and injuries caused by sexual assault are equal to, if not greater than, damage to reputation.”

She tells the legal newswire, "There should be no arbitrary limit or cap on what individuals who have suffered sexual violation and abuse are entitled to. Each case should be assessed on its merits and where the harms and losses are devastating and life-long, judges and juries should know they can award the level of damages they believe will compensate for the wrongs done."

Grace notes that since the courts in Ontario have not weighed in on whether the cap applies to sexual-abuse cases, the province should do so through legislative reform, “especially now when the societal commitment to eradicating sexual assault and harassment is so great.”

As Grace tells The Lawyer's Daily, "The government could take a stand. It doesn’t necessarily cost the government anything to do this, to effect legislative change, to clarify an area that is in contention and that is the notion that there’s an upper limit on what a sexual assault is worth."

Grace sees Ontario as a leader in dealing with sexual- and gender-based violence and notes that the province was one of the first in the country to offer free legal services to sexual-assault survivors. Ontario must maintain its position as a leader and, to do that, it should include legislative reform as part of its recently announced ‘It’s Never Okay’ strategy, she says.

“Let’s take it to the next level and put some meat on the bones in terms of what they’re proposing,” she says. “Legislative reform is something tangible and meaningful,” she adds.

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