LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Risk Of Re-Traumatization In Sexual Assault Cases May Result In Variation Of A Party's Inherent Rights In A Civil Action
Lauren Malatesta says that while parties to an action have an inherent right to be present during the examination for discovery of other parties, the court may exercise its discretion to exclude a party when it is satisfied, on a balance of probabilities, that there is cause to justify the exclusion.
Lawyers are accustomed to treating a party’s right to be present at the other party’s examination for discovery and to conduct oral examination of the opposing party as inviolable. In fact, these rights are not inviolable. In the appropriate circumstances, they will be varied to ensure the civil court process does not cause harm.
In the Ontario Superior Court decision of Antonopoulos v. the City of Toronto, Associate Justice Abrams granted a party’s request that the alleged perpetrator of her sexual assault be excluded from her examination for discovery on the basis that his presence would be traumatizing and could lead to a significant setback in her mental health.
This decision explains that while parties to an action have an inherent right to be present during the examination for discovery of other parties, the court may exercise its discretion to exclude a party when it is satisfied, on a balance of probabilities, that there is cause to justify the exclusion. For an exclusion order to be granted, such cause must be realistic and substantial and must result in prejudice to the party being examined, or be necessary to secure the ends of justice.
The party seeking an exclusion order, such as the alleged victim in this decision, bears the onus to demonstrate that this order is necessary to secure the ends of justice. In making her decision, Abrams A.J. considered prior examples where exclusion orders were granted, including where the evidence was likely to be tailored or parroted, a party was likely to be intimidated, or the proceedings were likely to be disturbed or disrupted. A further example, in keeping with this decision, is where a party is likely to be traumatized or mentally injured by the presence of the other party.
The alleged victim in the Antonopoulos case presented evidence from her treating psychologist confirming her diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD) and drawing a direct connection between her interactions with the alleged perpetrator and these diagnoses. The alleged victim herself also presented evidence that she was extremely fearful of seeing the alleged perpetrator and would find his presence intimidating in the context of being questioned about their interactions, including the alleged sexual assault. Her treating psychologist provided her clinical opinion that it would be significantly re-traumatizing for the alleged victim to be examined in the presence of the alleged perpetrator and this experience was highly likely to result an exacerbation of her PTSD and depressive symptoms.
In this decision, Abrams A.J. recognized the challenge in assessing these issues on an interim basis, prior to a final determination at trial. She acknowledged the alleged perpetrator denied having sexually assault the alleged victim and challenged the fairness of the investigation into the sexual assault by his former employer resulting in his termination for cause. Abrams A.J. also acknowledged the alleged perpetrator’s comments that he would not engage in any inappropriate behaviour or seek to intimidate the alleged victim during her examination. Nevertheless, on balancing this evidence with the evidence of the potentially adverse impact on the alleged victim’s mental health, Abrams A.J. found there was reason to believe the alleged perpetrator’s presence at the alleged victim’s discovery would present a real and substantial probability that intimidation, whether or not intended, was likely to occur.
More recently, in a 2024 hitherto unreported decision of the Ontario Superior Court of Justice, Justice Barnes granted a police officer’s request to be examined by written discovery in place of an oral examination. Barnes J. found there was compelling and persuasive psychological evidence that an oral examination was likely to be traumatizing and exacerbate the party’s PTSD and depressive symptoms. Moreover, he found that the other party’s procedural right to discover the case they had to meet could be satisfied by written discovery. Though this case did not involve allegations of sexual assault, but rather a police officer with work-related trauma, it is an important precedent for victims of sexual assault who may also be harmed by an oral examination for discovery.
Antonopoulos and this unreported decision represent an important acknowledgement by the courts that our civil court system can be significantly re-traumatizing to those who – by choice or legal effect – are made to participate in it. In these decisions, the courts acknowledge that a party’s inherent rights are not violable. The risk of harm to one party is an important factor to be weighed against protecting the inherent rights of another party.
A key takeaway for both plaintiff and defence lawyers is to keep an open mind when it comes to evaluating how to best protect their client’s mental health while still accomplishing the necessary procedural steps in a civil lawsuit. If a party risks serious injury from the legal process, their lawyer should consider moving for accommodation and ensure they are adducing compelling evidence in support of this request.
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Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Young Age Impacts Credibility And Reliability Assessments In Historical Sexual Abuse Claims
Lauren Malatesta says that when assessing a witness’ credibility and reliability in a historical claim, consideration must be given to a witness’ age at the time of the events and to the passage of time since then.
When assessing a witness’ credibility and reliability in a historical claim, consideration must be given to a witness’ age at the time of the events and to the passage of time since then.
There is no statutory limitation period in Ontario applicable to civil claims arising from or relating to sexual abuse. A victim may claim against a perpetrator or institution for historical sexual abuse.
In these historical claims, adult witnesses are often asked to recall and give evidence about sexual abuse they experienced as children. This raises the question: should the reliability and credibility of these witnesses be assessed as the adults they are now, or as the children they were when the abuse occurred?
The recent British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed a witness’ credibility should be assessed as an adult in such circumstances. That said, a lack of memory or inconsistencies, particularly as to peripheral matters such as time and place, must be considered in the context of the witness’ young age at the time of the events.
This B.C. case relies on the Supreme Court of Canada’s much-cited decision in R v. RW, 1992 CanLII 56. The court in RW acknowledged children experience the world differently from adults and details important to adults, such as time and place, may be missing from children’s recollections. These missing details alone are not a reason to discount the evidence given as children, or as adults looking back on historical events that happened in their youth.
While RW is a criminal case involving child sexual abuse, its adoption by the B.C. case demonstrates this credibility/reliability assessment principle is equally applicable to civil cases.
The defendant in the B.C. case was an adult at the time of trial but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time.
Though the B.C. judge had concerns about the credibility and reliability of both parties, those concerns were not based on minor inconsistencies. Rather, the parties were found to have exaggerated or changed their evidence at times to suit their interests in the case. Nonetheless, the judge ultimately believed the plaintiff and found the defendant had sexually assaulted her on multiple occasions over a period of years.
The principle in RW was recently also considered by the Court of Appeal for Ontario in a historical physical abuse case, Paddy-Cannon v. Canada, 2022 ONCA 110. The court granted the appeal and ordered a new trial. The court found the trial judge, in assessing the credibility and reliability of the witnesses’ evidence, was not mindful of the context, including the age of the witnesses at the time of the events and the passage of time since then.
Courts have acknowledged the impact of a witness’ age and fading memory on their ability to recall and give evidence about historical events. Increasingly, they are also coming to understand how trauma affects memory and recall.
When evaluating the strengths and weaknesses of witnesses’ evidence in historical cases, it is important for both plaintiff and defence lawyers to keep these considerations in mind and, where appropriate, bring civil court decisions that have followed the Supreme Court of Canada’s guidance in RW to courts’ attention so they have some guidance on how to assess the credibility and reliability of adult witnesses speaking to historical and traumatic events from childhood.
Contact Lauren Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.