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Civil Litigation

Sexual misconduct: pros and cons of civil court actions

The #MeToo movement against sexual misconduct and the media attention it’s received could encourage more victims to launch lawsuits to seek justice, but it’s important that they be aware of the pros and cons before bringing an action, says Toronto litigator Jeffrey Silver.

As the evidentiary rules and burden of proof in a criminal trial make it more difficult to secure a conviction, victims might decide to turn to the civil courts for redress, says Silver, principal of Jeffrey C. Silver Barrister, noting that while lawsuits for sexual misconduct are nothing new, the current climate may lead to an increase.

“It all depends on what a person’s goals are. Are they looking for money, or are they trying to ensure that this person who sexually assaulted them is held accountable — if not in a criminal court than at least in a civil court?” he says.

Although the defendant won’t receive a criminal conviction or go to jail after being found liable in a civil court, “there’s that sense of satisfaction for the plaintiff — beyond a monetary award — just knowing that the person has now been held accountable in a court of law.”

Accountability and some measure of control are in part behind a civil action brought by four actresses at a Toronto theatre company against its artistic director, who has since resigned but maintains he did nothing wrong, says a CBC report. The lawsuit also names the theatre company as a defendant, alleging it failed to provide a safe workplace.

When deciding whether to bring a lawsuit or pursue a criminal charge, a number of factors should be considered and addressed by counsel, Silver tells AdvocateDaily.com.

It’s important to note that in a criminal proceeding, unlike in a civil action, “the complainant is not a party. It is the Crown against the accused. The complainant is but a witness. As such, the complainant has no say in the conduct of the proceeding, including the trial,” he says.

“In the criminal proceeding, the only person who is entitled to a fair trial is the accused. It is the accused alone who has the protection of the Charter. It also must be recognized that it is not the Crown’s duty to procure and secure a conviction at all costs.”

As well, he says, at a criminal trial, an accused is presumed to be innocent, does not have to testify and the Crown’s burden of proof is beyond a reasonable doubt — a higher standard than in the civil courts, where the plaintiff must prove the case on a balance of probabilities in order for the defendant to be found liable.

While the criminal route provides many protections for an accused, the complainant doesn’t incur any legal costs, which is not the case in a civil action, Silver says. “The biggest advantage of a civil case is you may get a very substantial monetary award. The biggest disadvantage is the cost. Litigation is expensive, even if you win.”

If a defendant is “judgment proof,” with little income and few assets, he says, “not only will you not get your damages award, but you won’t recover your costs from the defendant either.” And if a plaintiff isn’t successful in court, he or she will be responsible for paying at least part of the defendant’s costs.

Normally when a plaintiff brings serious allegations, a loss in civil court can mean paying a higher scale of costs, known as “substantial indemnity,” Silver says. “Given the serious nature of claiming you’ve been sexually assaulted, if you are then unsuccessful in court, there’s a good chance that you would have to pay the costs on that higher scale. So that’s something to consider.”

In cases that stem from sexual assault or harassment in the workplace, another factor to consider is suing a defendant’s employer, he says.

“Even if the defendant has no assets to satisfy a monetary judgment, the company most likely would. It doesn’t mean that the employer will be found liable, but in circumstances where the employer ought to have taken certain steps and didn’t or should have had certain safeguards in place to protect employees and didn’t, they may be held vicariously liable.”

One important difference between a criminal and civil proceeding is how the sexual history of the complainant/plaintiff is dealt with in court, Silver says.

At a criminal trial, the complainant is protected by s. 276 of the Criminal Code, known as the rape-shield law. It reads that “evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person, is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject matter of the charge; or (b) is less worthy of belief.”

“Subject to certain exceptions, the complainant’s sexual activity is not going to go in,” Silver says.

But at a civil trial, the rape-shield law doesn’t apply, “and therefore a plaintiff’s sexual history may indeed form part of the evidence, and they may be cross-examined on it,” he explains.

“Ultimately, it’s up to the trial judge to determine the relevancy, but you don’t have that automatic statutory protection that you have in a criminal proceeding. That’s a big difference.”

An accused, he says, is treated the same way when it comes to criminal background: Prior convictions for sexual assault or similar crimes will likely not be entered into evidence at a criminal trial, while that’s not the case at a civil trial.

Silver says one element of a civil proceeding that benefits both the plaintiff and defendant is the “deemed undertaking” rule, which is Rule 30.1 in Ontario’s Rules of Civil Procedure and applies to examinations for discovery.

“It means that any discovery evidence cannot be released to the public, nor, subject to certain exceptions, can it be used in another civil action. One of the exceptions, of course, is that discovery evidence may be used at a trial, and then it becomes part of the public record,” he says.

But with more than 90 per cent of civil cases settling before trial, the rule offers reassurance to both parties that information about their sexual or criminal background will remain private, Silver says.

“Generally speaking, what’s said at discovery stays at discovery.”

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