Law Times

Page 16 September 11, 2017 • Law timeS www.lawtimesnews.com PERSONAL INJURY Perception has shifted on complainants in civil claims BY SHANNON KARI For Law Times T here has been an in- creased spotlight in re- cent years on the issue of sexual assault and how allegations by complainants are handled by police and in the criminal courts. The topic has received wide- spread coverage by the media and in Ontario the province has enacted requirements for new provincial court judges to re- ceive training related to sexual assault law. What has received less at- tention is whether institutional barriers and stereotypes about complainants in this area are still prevalent in the civil courts. "Generally, I have seen a shift, in the civil context, toward a willingness to believe the com- plainant, especially with histori- cal [abuse] claims," says Claire Wilkinson, a personal injury lawyer at Martin & Hillyer As- sociates in Burlington, Ont., who has a large focus in her practice in this area. Simona Jellinek, a personal injury lawyer who specializes in sexual assault and abuse litiga- tion, agrees that all participants in these claims have become more informed. "I believe attitudes are chang- ing. That does not mean that myths are not still alive and well," says the lawyer, who heads Jellinek Law Offices in Toronto. While progress has been made, both lawyers agree there are still many obstacles to a suc- cessful claim filed by a sexual as- sault complainant. As well, a small claims court decision highlighted again that complainants can end up being the defendants in a civil action if an allegation leads to charges filed by police but no criminal conviction at trial. Small Claims Court Judge David Black ordered a Niagara Region woman last fall to pay nearly $24,000 in damages to her former boyfriend after he was charged with sexual assault and the charge was withdrawn by the Crown following a one- day preliminary hearing. The relationship had ended and the woman went to police "to employ the criminal pro- cess for the purposes of retribu- tion," wrote Black, following an eight-day Small Claims Court trial. Both parties were self- represented and the woman was cross-examined at length by the former boyfriend whom she had accused of sexual assault. The man did not name the local police service as a defen- dant and the award included nearly $19,000 to cover the cost of his criminal defence lawyer as well as $5,000 for defamation, including an amount for aggra- vated damages. The woman has retained a lawyer and the Divisional Court was scheduled to hear an appeal on Sept. 8 of the Small Claims Court ruling. A defamation action against a complainant is not a new tactic, notes Elizabeth Grace, a partner at Lerners LLP in Toronto, who specializes in sexual assault and abuse litigation. "It has always been there. It comes in waves," she says. The decision in the Niagara Small Claims Court case is an- other example of obstacles and even financial risks for sexual assault complainants who go to the police. "There is often little in it to go the criminal route. You may have your computers or mobile devices seized by police. You will give up all kinds of time. Your life is put on hold and for what?" asks Grace. The high-profile coverage about the criminal process may actually dissuade individuals with legitimate claims from pro- ceeding instead in civil courts, she suggests. "Most lay people won't know the difference between civil and criminal. They are not distin- guishing it in their minds," says Grace. "You have more control in a civil action. To a much greater extent, you call the shots." The province eliminated lim- itations periods last year for any claim based on sexual assault. As a result, while a criminal conviction may strengthen a civil claim, it is better to wait un- til the end of that proceeding to file a civil action, notes Wilkin- son. "Otherwise, defence counsel will use it to attack your cred- ibility," she says. If an individual has been sex- ually assaulted, it makes sense to speak to a lawyer even before go- ing to police, to learn about the various options that are avail- able, says Jellinek. "You want to give them back the control," she explains. Other options she points out include a human rights com- plaint or application to the pro- vincial Criminal Injuries Com- pensation Board, which does not require you to have a lawyer or for there to have been a criminal conviction. In terms of a civil action, the three lawyers agree that the cost of litigation, the need to find a defendant who has funds to pay an award and the law around vi- carious liability are always barri- ers to a successful claim. Convincing courts about the extent of the psychological in- juries can also be difficult, says Wilkinson. "Your psychologist will have to do a very thorough job. Emotional trauma can be crippling," she states. An appreciation of the genu- ine harm caused by sexual as- sault acts is sometimes difficult for courts to grasp, says Grace. "These aren't broken bones," she notes. Often, this difficulty does not depend on the gender of the judge but the age, says Grace. "This is a generational th ing," she says. LT Elizabeth Grace says a defamation action against a sexual assault complainant is not a new tactic used in civil litigation. Tim Boland Darcy Romaine Tel: 905-841-5717 www.bolandhowe.com THE PROOF IS IN THE PRECEDENTS Pelletier v. Ontario Provincial Police, 2013 ONSC 6988 For further liability verdicts, ask for our Trial Report Card BICYCLE ACCIDENT? Consider referring your client to us Untitled-5 1 2017-09-06 2:17 PM

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