Many readers will recall the recent Bill Cosby trial for sexual assault. The crime was allegedly committed in 2004, the criminal charge was laid on December 30, 2015 and the trial occurred in June 2017. It ended in a mistrial because the jury did not return a unanimous verdict. The prosecutor promises another trial.
While this is a criminal trial – where generally no limitations periods apply for indictable offences– it reveals the numerous challenges facing the witnesses, prosecutor, defence counsel and jurors, of taking matters to trial long after the wrongdoing is alleged to have occurred.
Civil lawsuits in Canada must normally be filed within two years of the event complained of. This is called the limitations period. It is set out in legislation and is strict. The lawsuit will not be heard and completed in those first two years, but it must be commenced within that time.
Recently, the Alberta government amended the Limitations Act [http://canlii.ca/t/52xm7] to eliminate the limitations periods for civil claims of “any misconduct of a sexual nature”. This will potentially impact the workplace.
Reasons for Limitations Periods
There are three purposes of limitations periods. Knowing that evidence degrades over time, it is important to move a case forward sooner rather than later. Witnesses forget things. They move away and they die. Documentary evidence also gets lost, destroyed or is discarded.
Employees who allege “misconduct of a sexual nature” can file lawsuits against co-workers, customers, contractors, vendors and employers without any time limitation period. The second purpose is that everyone should enjoy “peace and repose” after a certain date. When the limitations period has passed and no lawsuit has been filed, others (potential defendants and witnesses) can dispose of files and other records. They can safely move on in their lives without fear of being sued on that issue.
Finally, it is fair that alleged wrongs should be decided in the era in which they arose. If something was acceptable, or at least not repulsive and legally actionable at the time it occurred, it should not be judged and condemned by significantly different social standards decades later. For example, there is more clarity and sensitivity around behaviour of even a minor sexual nature today in Canada than there was, say, thirty years ago.
No Limitations Periods for Sexual Misconduct
Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, eliminated the two-year limitation period for:
- sexual assault;
- any sexual misconduct involving a minor, intimate relationship or dependent; and
- any non-sexual assault or battery involving a minor, intimate relationship or dependent.
Employees who allege “misconduct of a sexual nature” can file lawsuits against co-workers, customers, contractors, vendors and employers without any time limitation period. Corporate employers are vicariously liable for the actions of their employees in the course of the employment, so they also could face a lawsuit decades after an alleged incident of sexual misconduct.
“Sexual violence” and “sexual misconduct” were intended to be construed very broadly according to the Minister. In legislative debates, she stated: “[w]e were very clear in selecting incredibly broad and inclusive language. This, in fact, puts Alberta, which was behind every other province in the country, out in front so that we have the most inclusive language of any province…” (Hansard, March 22, 2017).
The Minister added: “to the term ‘sexual misconduct’… these behaviours would include but are not limited to . . . sexual harassment” (Hansard, April 19, 2017 at p. 678). However, sexual harassment is a human rights concept. The Alberta Human Rights Act has its own limitation periods for filing complaints. Sexual harassment is not yet an established tort on its own, that would be subject to the Limitations Act.
Ontario recently passed Bill 132, Sexual Violence and Harassment Action Plan Act, which likewise abolished time limits for suing for sexual assault, domestic violence, or child abuse. The recent Alberta legislation goes even further and may expose employers to unanticipated liability for long-past actions of their former employees by making the amendment apply retroactively. The assertion of an old claim will violate all the three principles of limitation periods.
Sexual misconduct and sexual harassment claims are already troubled with a high degree of subjectivity and opposing evidentiary perspectives. These disputes will now be further destabilized by the addition of unlimited time in which to launch the allegation.
There is little employers can do about old complaints of sexual misconduct. However, because this amendment potentially increases liability, it does compel employers to discourage future incidents. Employers can start by ensuring that their sexual harassment policies are clear and authoritative. When incidents do happen, they should be carefully investigated, addressed and documented.