Law Times

Law Times • march 26, 2018 Page 9 www.lawtimesnews.com 'This is a very insidious crime' Limitations period on sex assault claims clarified BY SHANNON KARI For Law Times A n ongoing lawsuit against disgraced movie producer Har- vey Weinstein has also resulted in one of the only rul- ings to interpret how amend- ments that exempted sexual assault claims from limitations periods in Ontario should be ap- plied to defendants not alleged to be the perpetrator. "The amendments to the Limitations Act contained in Bill 132 are remedial, addressing systemic problems relating to sexual harassment and assault," wrote Ontario Superior Court Justice Patrick Monahan in Jane Doe v. Weinstein. The judge concluded that the exemptions in the provincial statute also applied to a former assistant of Weinstein who is al- leged to be a "knowing facilita- tor" of his conduct in the action filed by an actor over two alleged sexual assaults in a Toronto ho- tel room in 2000. Gillian Hnatiw, a lawyer who frequently acts for sexual assault complainants, says she believes the ruling ref lects the will of the legislature when the measures were enacted in 2016. "This is a very insidious crime. The government's inten- tion was to try to cast a broad net," explains Hnatiw, a partner at Adair Goldblatt Bieber LLP in Toronto. The plaintiff, who only can be identified as Jane Doe, is su- ing Weinstein, his former as- sistant Barbara Schneeweiss, Miramax and the Walt Disney Company. Jane Doe had a small part in a movie that was being filmed in Toronto and a meeting with Weinstein was arranged. She first met with Schneeweiss, who said the producer wanted to meet in his hotel room, accord- ing to the statement of claim. After she accompanied the woman to the hotel room, Schneeweiss was asked by Wein- stein to leave and that is when the plaintiff was allegedly sexu- ally assaulted the first time. The lawsuit also alleges that there was a second meeting with the assistant, in which she indi- cated that Weinstein wanted to apologize. Instead of an apology, Jane Doe was assaulted a second time, the statement of claim al- leges. The court heard that Schnee- weiss has worked for Weinstein or companies controlled by him since 1996. The Limitations Act was amended so that there are no time restrictions to file an ac- tion "for proceedings based on a sexual assault." As well, claims made "in relation to the applicable act" against individuals for negli- gence, breach of a duty or vicari- ous liability are also not subject to limitations periods. "The language is clear. It is intentionally as broad as can be," says Hnatiw. The lawyer acting for Schnee- weiss, however, argued that since the claims against her are based on failing to warn Jane Doe about Weinstein, they are out- side the scope of the limitations period exceptions. The phrase "in relation to" in the statute should apply in the context of an alleged sexual as- sault to a third party not directly involved only if there is vicari- ous liability or an "independent duty" to the victim, stated Jona- than Rosenstein in written sub- missions filed with the court. The only other reported deci- sion in Ontario on the scope of the limitations exceptions in a claim against a third party is a ruling by Superior Court Justice Thomas Lederer. In Fox v. Narine, the judge concluded that a claim could proceed against a shelter for In- digenous women despite being filed outside the normal limita- tions period. In that case, a woman staying at the shelter was sexually as- saulted by a man who broke into the facility. Since the shelter held itself out as a safe place for women, it owed a duty of care and fell with- in the limitations period excep- tion, the judge found. Lederer highlighted the goal of the statutory amendments in his ruling. "The policy behind this stat- ute is to improve the protection the law offers to the victims of sexual violence. This is contrary to a proposition that would limit the application of a statutory provision that extends that pro- tection to those that carry the re- sponsibility of a duty of care that would otherwise apply. There is no consideration that overrides the prima facie duty of care that is in place," he wrote. Monahan, who was deputy attorney general of Ontario when the changes took effect, also noted the policy goals in his ruling. "The clear objective of this provision is to ensure that vic- tims of sexual assault may pur- sue civil claims, not just against the perpetrators of the assaults but also against others who may be civilly liable in connection with the assaults, regardless of when the claim is commenced," wrote Monahan. "With that context in mind, in my view the purpose of sec- tion 16 (1.3) is to ensure that, where a proceeding involves a claim for civil liability arising from or relating to a sexual as- sault, that proceeding cannot be barred by the Act," he stated. Rosenstein, who heads RosensteinLaw in Toronto, de- clined to comment on the spe- cifics of the allegations against his client. In terms of the legal analysis on the limitations exception, he suggests the ruling is very broad in terms of its scope when a sex- ual assault is alleged. "Limitations periods are about a balance between plain- tiffs and defendants. This de- cision is saying a court should err on the side of when a claim alleges there is any connection whatsoever to the sexual as- sault," Rosenstein says. Claims against third par- ties in sexual assault cases "will rarely be decided at the plead- ings stage," says Daniel Zacks, a senior associate at Clyde & Co LLP in Toronto, who writes ex- tensively on limitations issues. "From a limitations perspec- tive, once you have as a matter of policy that you want to protect the claims of sexual assault vic- tims, you have shifted the bal- ance in this area," he says. The pleadings of the plaintiff are presumed to be true for the purpose of a limitations motion, and given the allegations against Weinstein's former assistant, the judge's conclusion on this issue is not a surprise, notes Zacks. "There is room, though, for future debate on what degree of connection [to the sexual as- sault] is required," he says. In this case, the former assis- tant to Weinstein is defending alleged conduct from more than 17 years ago. However, that should not entitle her to a "carve out" from the litigation, even if Weinstein is the person alleged to have committed the sexual assaults, Hnatiw states. "It would be very unfair to the plaintiff to get to the place where she is now ready to go to court and then have to face a new legal barrier [a limitations period]," says Hnatiw. LT FOCUS Gillian Hnatiw says she believes the ruling reflects the will of the legislature when the measures were enacted in 2016. From a limitations perspective, once you have as a matter of policy that you want to protect the claims of sexual assault victims, you have shifted the balance in this area. Daniel Zacks Every time you refer a client to our law firm, you are putting your reputation on the line. ROBERT BEN | LEONARD KUNKA | ALAN FARRER Since 1936 Thomson, Rogers has built a strong, trusting, and collegial relationship with hundreds of lawyers across the province. With a group of 30 civil litigators and a support staff of over 100 people, we have the resources to achieve the best possible result for your client. We welcome the chance to speak or meet with you about any potential referral, and look forward to creating a solid relationship with you that will benefit the clients we serve. YOUR ADVANTAGE, in and out of the courtroom. TF: 1.888.223.0448 T: 416.868.3100 www.thomsonrogers.com IT IS ALL ABOUT TRUST WELL PLACED. Untitled-2 1 2018-03-20 11:29 AM

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