Personal injuries are often the result of someone’s negligence with likely no intent to cause harm. However, when a person is the victim of a sexual assault, that is not generally the case. If someone intentionally chose to commit a violent and/or psychologically damaging attack on you or a loved one, it feels all the more “personal” and intentional in nature.
Sexual assaults can bring about criminal charges against a perpetrator. Sexual assault survivors can also launch civil lawsuits against the person committing the assault and/or employers or institutions who:
- Created the conditions for such assaults.
- Failed to properly investigate a perpetrating employee’s background.
- Failed to investigate complaints about a perpetrator’s previous actions.
A knowledgeable, experienced, and empathetic personal injury lawyer with in-depth experience in sexual assault law can be there for you or a loved one in the aftermath of a sexual assault. Together, we can seek compensation and damages for the harm that a perpetrator (and/or enablers) caused. A civil lawsuit cannot undo what has been done to you, but it can be an important step toward finding closure for one troubling chapter in your life and confidently beginning the next.
Sexual assault and the law.
What is sexual assault?
Canadian criminal law provides a broad definition of sexual assault. Any unwanted or non-consensual sexual activity can be considered sexual assault. This includes unwanted sexual touching/fondling, kissing and rape. Sexual assaults can be intentional or occur through recklessness. Attempts or threats of unwanted sexual activity are also covered by law.
Consent must be communicated through affirmative words or conduct; silence or passivity do not confirm consent. Consent can be withdrawn at any time during sexual activity. A person cannot be deemed to have legally provided consent if:
- They felt compelled to consent to a person due to an abuse of trust, authority or unequal power.
- They were incapable of providing consent because of the condition they were in (for example, unconscious or significantly impaired).
- Someone else consents on their behalf.
- The sexual activity results in the person suffering bodily harm (bruising, broken bones, laceration, etc.).
- The person was not of an age where they could be considered to give consent based on the context of the sexual activity (for example, a partner’s age, a relationship of unequal power, etc.).
What should I do if I’ve been sexually assaulted?
If you are in immediate danger, a call to 911 or another emergency number is strongly advised to ensure your safety. If you are not in immediate danger, you will have more time to consider your next steps.
Not all people who have been sexually assaulted want to involve the police in what happened. There are many reasons why a sexual assault victim might decline to contact the police, including:
- Feeling ashamed or embarrassed by what happened.
- Not wanting family or friends to know that assault has occurred (particularly if the assailant is a family member, known in a social circle, or is someone who has power over your wellbeing and livelihood).
- Barriers to support from law enforcement, such as discrimination based on race, religion or gender or language barriers.
- Fear of being stereotyped or having to reveal sensitive information about sexual activity and history, mental health or addiction.
- Not wanting to feel re-victimized by needing to retell the traumatic events to multiple people.
It is important to know that declining to provide information to police or to participate in a criminal case against the perpetrator does not limit your ability to seek justice and/or restitution in other ways.
If a sexual assault has just taken place, you may want to record evidence of the assault including:
- Photos of injuries and/or the scene of the assault.
- Physical evidence left by the assailant.
- Written notes or a video of you describing what you can remember.
There is no time limit to report a sexual assault in Ontario. There is also no time limit to report sexual misconduct of any nature if it involved a minor or a person in an unequal or dependent relationship.
If the sexual assault occurred a long time ago and/or if you have repressed memories to protect yourself, you may consider speaking with a counsellor who has experience helping victims of these crimes to help you understand how to deal with memories that are returning.
Choosing how to proceed.
Filing a report with the police in order to begin a criminal case is only one option for victims of these assaults. In addition, or instead, you may want to:
- File a human rights complaint. Sexual assault is a form of sexual harassment under Ontario’s Human Rights Code. If the sexual assault occurred in relation to employment relationships, accommodation/housing, providing goods and services or access to facilities, creating contracts, and/or membership in professional associations or trade unions, you can lodge a complaint through the Human Rights Legal Support Centre.
- Make a complaint to a disciplinary committee or professional governing body. If the sexual assault occurred within the context of an institutional environment or relationship, you may have the option of pursuing a complaint against a board responsible for code of conduct violations. For example, if the assault was committed by a medical provider during treatment, by a student or professor at a college/university, by a teacher or school administrator, or other professional, your complaint could result in the loss of their licence to practice a profession and/or removal from an institution.
- Seek emergency funding from Ontario’s Victim Quick Response Program + (VQRP+) for victims of violent crimes (including intimate partner violence). This program provides practical and immediate support for victims of violent crimes, including: safety expenses; travel, accommodation, and associated expenses; and, counselling services and associated transportation expenses.
- Make a civil claim against the perpetrator and/or enablers.
Preparing a civil lawsuit.
In a civil lawsuit, a person who was sexually assaulted can make a claim for damages relating to:
- The criminal offence of sexual assault (even if a criminal case has not occurred or the defendant was found not Guilty in criminal court).
- Intentional infliction of emotional or psychological distress.
- Breach of fiduciary duty (if the perpetrator abused a position of power).
- Third-party vicarious liability (when a person or institution other than the perpetrator bears legal responsibility for actions or inaction that allowed the assault to happen).
Damages include both quantifiable economic losses (such as the cost of medical treatment or lost wages due to the inability to work following an assault), and non-economic losses (such as the pain and suffering you may have experienced as a result of the assault). These are referred to respectively as pecuniary and non-pecuniary damages.
Unlike criminal cases where the Crown must prove the defendant is guilty of a crime beyond a reasonable doubt, in a civil action the plaintiff (sexual assault victim) must only prove that the defendant (the perpetrator and/or enabler) committed the act causing damages on the balance of probabilities (in other words, it is more likely than not that the sexual assault occurred).
The plaintiff has much more control over the timing and direction of a civil case than a criminal case. A criminal case can help with a civil claim, however. Although a “not guilty” verdict does not preclude a judgment in favour of the plaintiff in a civil case, a “guilty” verdict provides direct compensation according to the Ontario Victims’ Bill of Rights. The law states a person who is convicted for a crime such as sexual assault “is liable in damages to the victim of crime for emotional distress and bodily harm.” As such, once a conviction is established (and is not successfully appealed), it becomes a question of how much the guilty party will have to pay to the victim rather than a question whether the perpetrator will have to pay.
Finally, the law also ensures that a person found liable for sexual assault in a civil action (or their estate, if the perpetrator has died) cannot escape paying compensation to a plaintiff, even if they are insolvent or have filed for bankruptcy.
What are the stages of a Sexual Abuse Lawsuit?
How does a lawsuit progress?
Getting involved in a lawsuit can be scary and confusing. At Gluckstein Lawyers, we explain what's happening and outline your options every step of the way.
This page provides an overview of the stages you can typically expect in Canada for an assault or personal injury lawsuit.
After initial phone calls or emails, we meet clients in person. Usually this happens at our office, but occasionally we see clients while they are in a hospital or other facility.
The first meeting can take different forms. Usually, we begin by listening to you. Sometimes, we start by explaining what generally happens in the litigation process. Some people want to discuss the specifics of their case at this meeting, while others prefer to set up a second meeting to discuss case details.
It's important for you to feel comfortable with your lawyer. At Gluckstein Lawyers, we offer referrals to other competent lawyers for second opinions if you wish. No hard feelings – we want you to feel confident that you have chosen the right law firm. More often than not, people either don’t feel they need a second opinion, or come back to us after they have researched their options.
Investigation & evaluation
This stage actually begins from the moment a person contacts us. We begin to collect as many details as possible from them and evaluate the information.
We understand that it may be extremely difficult for you to talk about what happened. We want to make you feel comfortable before we begin questioning, and will try to take it at your pace.
After the initial interview(s) and info collection, there is usually a process of investigation (typically legal research and the collection of medical or other records).
Demand letter, statement of claim & statement of defence
When enough information is collected, a Demand letter may be sent to the person(s) you will be suing (the defendants). What happens next mainly depends on how the defendants respond to the Demand Letter. Negotiations may begin in an attempt to settle the matter.
However, in most cases, the file is not settled after writing a Demand Letter. It is almost always necessary to issue a Statement of claim. This is the first official document which begins the actual court case. It sets out what you want and why you want it. The claim first goes to the court and is then given (served) on all the defendants. They then have a period of time (usually twenty days) to respond to the claim, by what is called a Statement of defence. This document sets out their defences to your claim.
Affidavit of documents
The next step is to exchange documents in what is called an Affidavit of documents. Documents related to matters in issue in the lawsuit must be disclosed to the defendants, unless there is some legal reason to withhold those documents. For instance, communication between you and your lawyer can be withheld. Some medical or therapeutic records can be withheld depending on the circumstances. However, most relevant therapeutic records will have to be disclosed at some point to the defendants.
Examination for discovery
The next major stage in your lawsuit is the Examination for Discovery. This is an official court proceeding, that takes place in the office of the Official Examiner, where the lawyer for the defendant(s) will ask you questions. We'll help you prepare for this, and will be with you during the Examination. The defendant is usually not present. The Examination is your chance to show the defendant's lawyer who you are, how you have been hurt, and that as a result of the defendant's actions, you are suffering and deserve compensation.
We also have the chance to have defendants attend an Examination for Discovery. This is our opportunity to establish the strength of our case, and to highlight how weak the defendant’s case is.
After the examinations for discovery, many lawsuits settle. This is because both sides have had an opportunity to assess the strength and weakness of their own case, and that of their opponent. Sometimes, the Examination for Discovery leads to another period of collecting more information and investigation.
At some point, either before or after the Examinations for Discovery, you will likely be sent to various professionals for assessment. We choose the best experts available – people who have experience in the medical or psychological issues important to your case. Experts who can give a credible opinion in court.
Often, the defendant’s lawyer will also request that you attend an assessment with an expert of their choosing.
Settlement through mediation
In some cases, both sides will want to go to mediation to try to settle the matter. Mediation is usually not an official court process, but if both sides want to mediate, then settlement is the likely outcome.
An experienced mediator is chosen. Both lawyers prepare a written outline of their case, and the kind of compensation they believe is reasonable. Mediation can occur at any time during your lawsuit, even before the Examination for Discovery or sometimes, even before a Statement of Claim is issued. If mediation fails the first time, there can be another one before the actual trial.
Most cases settle before the trial. Sometimes, as late as the day before the trial.
If your case has not settled, and you have to go through a trial, you can expect to be the first witness. We will prepare you for the kinds of questions that the opposing lawyer will likely ask. Testifying can be a difficult experience, and it is normal for you to be nervous. But, it is also your opportunity to tell your story.
Other witnesses, including any medical or therapeutic experts, then testify. The judge or jury will then decide whether or not you are entitled to receive monetary compensation.
Most provinces have Limitation Acts, which impose time limits, within which you have to begin your lawsuit. If you don't start the action within those specified time limits, you must have a valid legal reason why you didn't.
In many situations, courts have recognized that people may not be in a situation to bring a claim within the set time – perhaps because of psychological or emotional reasons. Sometimes, a person may not know for a long time, even decades, that they've been hurt and that it was someone else’s fault.
Every situation is different. It's important that as soon as you can, you find an experienced lawyer who can help determine whether you have a case, and what you can do about it.
If you've been the victim of an assault or personal injury, Gluckstein Lawyers has what it takes to assert your rights and ensure the compensation you deserve.
At Gluckstein Lawyers, we recognize and respect the sensitivity of personal information.
Understandably, you may have concerns about your privacy. We may be able to take steps to protect your privacy, even in court, by beginning your case with your initials instead of your name.
Gluckstein Personal Injury Lawyers can help.
Being sexually assaulted can be one of the most traumatic events a person can ever experience. And, as terrible and terrifying as that moment in time was, there is often a difficult road ahead for a victim who wants to see and deserves justice. Perpetrators of sexual assaults can use everything in their power to promote forgetting and secrecy by victims. If a victim does step forward, the perpetrator may attack their credibility to try to ensure that the victim’s voice will go unheard.
The lawyers working on sexual assault claims at Gluckstein Personal Injury Lawyers in Toronto, Ottawa, Niagara, and Barrie will always listen to you. As a law firm that prides itself on full-circle care, we offer a welcoming, compassionate and empathetic ear to hear from people who have suffered unimaginable situations.
When you contact us for a no obligation, free consultation, we will take the time to ensure you feel respected, dignified and heard as you explain what happened. We will take all the time you need to help you understand the many options you have to seek justice, healing, relief and closure after a sexual assault if we believe that we can be of help.
Contact a member of our sexual assault injuries team today to confidently work towards better days ahead.
Former Client - Sexual Assault Survivor"Simona: My thanks for affirming that the principles of integrity are still very much alive."
Former Client - Sexual Assault Survivor"You have given me the strength to go on."
Robert B. Munroe, Ross & McBride LLP, OTLA Past President"In my opinion, Simona is one of Ontario's leading lawyers in helping sexual assault survivors obtain proper compensation."
Blog & News.
Congratulations to our nine Gluckstein Lawyers who have been selected for The Best Lawyers® in Canada 2023! We are excited to announce the addition of Jan Marin, Simona Jellinek, Erin Ellis ...Read More
Industry leading personal injury law firmGluckstein Lawyers continues in its drive to become an industry leader in the field of catastrophic injury and medical malpractice and are proud to welcome sen...Read More
Websites have proven their worth as a means to establish an online presence. They are the virtual storefronts of a business enterprise with the chief aim of converting visitors to consumers. A website...Read More
Written By: Simona Jellinek, Counsel With apologies to math teachers everywhere, one plus one does not always equal two. Sometimes it adds up to a lot more. When a person is dealing with a traumatic b...Read More
Podcasts & Videos.
Best Lawyers Best Lawyers 2023 Since it was published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. It’s an honour to have nine lawyers recognized. 2022
Areas We Serve.
Tell us about your accident or injury. We can help.
At Jellinek Ellis Gluckstein Personal Injury Lawyers, the initial meeting is free and without obligation on your part – and we never charge you legal fees until your claim is settled.