By Isha Sharma
For survivors of sexual abuse, coming forward can take years or even decades. Trauma, fear, shame, and the circumstances surrounding the abuse may make it difficult to speak about what happened, let alone begin a lawsuit. Ontario law recognizes these realities. Under the Limitations Act, 2002, there is no limitation period for a proceeding based on sexual assault. (Section 16 of Limitation Act, 2002.) As a result, the fact that alleged abuse occurred many years ago does not, on its own, prevent a survivor from bringing a civil claim.
M.(K.) v. M.(H.) is useful historical abuse authority on delayed recognition and disclosure. The Supreme Court held that discoverability may turn on when the plaintiff acquired substantial awareness of the harm, its likely cause, and the defendant’s responsibility. The Court considered the effects of threats, conditioning, self-blame, unsuccessful disclosures, and psychological injury. (M.(K.) v. M.(H.), [1992] 3 SCR 6)
But there is an important distinction between waiting to bring a claim and delaying a lawsuit after it has been commenced. While Ontario law gives survivors significant protection against limitation periods, it does not mean that a civil proceeding can remain inactive indefinitely.
Once a lawsuit has been started, the parties are expected to move it forward. Where there has been significant delay, a defendant may ask the court to dismiss the action. (Rules of Civil Procedure, r. 48.14(7).) The court may consider the reasons for the delay and whether the delay has caused the defendant non-compensable prejudice, i.e., prejudice that cannot adequately be addressed through the ordinary litigation process. (Faris v. Eftimovski, 2013 ONCA 360 (CanLII).)
This issue was considered by the Ontario Court of Appeal in Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387. The case involved allegations of historical sexual and physical abuse dating back several decades. Although the claims were not subject to a limitation period, the litigation itself had progressed very little after it was commenced. The Court of Appeal ultimately upheld the dismissal of the action for delay. The decision illustrates an important principle: an unlimited limitation period does not give a plaintiff unlimited time to prosecute a lawsuit once it has been commenced. Parties must still comply with procedural requirements and take reasonable steps to advance their cases.
At the same time, the passage of time must be considered carefully in historical sexual abuse cases.
A claim involving events from decades ago will naturally present evidentiary challenges. Memories may have faded. Documents may no longer exist. Witnesses may have moved, become unavailable, or died. These difficulties may exist regardless of when a lawsuit was started.
For that reason, the court may distinguish between prejudice caused by the passage of time and prejudice caused by a plaintiff’s delay in prosecuting an existing proceeding. For example, if an alleged incident occurred 30 years ago, a defendant may have difficulty locating witnesses simply because of the age of the allegations. That does not necessarily mean the plaintiff caused the resulting difficulty.
The analysis may be different where a plaintiff has commenced a lawsuit and then allows it to remain inactive for several additional years. In those circumstances, the defendant may argue that the delay has materially impaired the ability to investigate the allegations or present a defence.
Prejudice must be assessed factually. The relevant question is whether the plaintiff’s delay impaired the defendant’s ability to defend, rather than whether time simply passed. The court has rejected general assertions about fading memories where the evidence and litigation history did not establish non-compensable prejudice. (Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 (CanLII).) Prejudice might involve the loss of an important witness, the destruction or disappearance of relevant records, an inability to locate individuals who could previously have been found, or the loss of evidence needed to respond to specific allegations.
The court does not simply count the years that have passed. Instead, it considers the circumstances of the particular case, including the explanation for the delay, the length of the delay, what steps were taken during the proceeding, and the actual effect of the delay on the defendant’s ability to defend the claim.
This distinction is particularly important for survivors. Delayed disclosure of sexual abuse should not automatically be treated as evidence that a claim lacks merit. There may be many reasons why a survivor was unable to come forward earlier. Ontario’s legal framework recognizes that reality by removing the limitation period for proceedings based on sexual assault.
However, once a claim is commenced, there is a practical reason to move the litigation forward without unnecessary delay. Evidence can become more difficult to obtain over time, and procedural delays may create issues that could otherwise have been avoided.
For defendants, an historical claim should likewise be assessed on its particular facts. The fact that allegations are old may make defending the claim more challenging, but age alone does not necessarily establish the type of prejudice required to dismiss an action for delay. The defendant may need to identify specific evidence that has been lost or compromised and explain how the delay has affected the ability to respond to the claim.
Ultimately, time can become evidence in civil sexual abuse litigation. It may help explain why a survivor waited to come forward. It may affect the availability of witnesses and records. And, once litigation has begun, the passage of time may become relevant to whether the proceeding can fairly continue.
Ontario’s approach seeks to balance two important principles: survivors should have meaningful access to the civil justice system even when allegations arise from events many years in the past, while defendants are entitled to a fair opportunity to investigate and respond to the claims against them.
For anyone considering a civil sexual abuse claim in Ontario, or defending against a historical sexual abuse lawsuit, early legal advice can be important. A lawyer can assess the nature of the allegations, applicable limitation provisions, available evidence, the procedural history of the matter, and any potential issues relating to delay or prejudice.
The passage of time does not necessarily determine whether a claim can proceed. But in historical sexual abuse litigation, how that time has been spent, and what has happened to the evidence during it, can become an important part of the case.
By Isha Sharma
For survivors of sexual abuse, coming forward can take years or even decades. Trauma, fear, shame, and the circumstances surrounding the abuse may make it difficult to speak about what happened, let alone begin a lawsuit. Ontario law recognizes these realities. Under the Limitations Act, 2002, there is no limitation period for a proceeding based on sexual assault. (Section 16 of Limitation Act, 2002.) As a result, the fact that alleged abuse occurred many years ago does not, on its own, prevent a survivor from bringing a civil claim.
M.(K.) v. M.(H.) is useful historical abuse authority on delayed recognition and disclosure. The Supreme Court held that discoverability may turn on when the plaintiff acquired substantial awareness of the harm, its likely cause, and the defendant’s responsibility. The Court considered the effects of threats, conditioning, self-blame, unsuccessful disclosures, and psychological injury. (M.(K.) v. M.(H.), [1992] 3 SCR 6)
But there is an important distinction between waiting to bring a claim and delaying a lawsuit after it has been commenced. While Ontario law gives survivors significant protection against limitation periods, it does not mean that a civil proceeding can remain inactive indefinitely.
Once a lawsuit has been started, the parties are expected to move it forward. Where there has been significant delay, a defendant may ask the court to dismiss the action. (Rules of Civil Procedure, r. 48.14(7).) The court may consider the reasons for the delay and whether the delay has caused the defendant non-compensable prejudice, i.e., prejudice that cannot adequately be addressed through the ordinary litigation process. (Faris v. Eftimovski, 2013 ONCA 360 (CanLII).)
This issue was considered by the Ontario Court of Appeal in Henderson v. Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387. The case involved allegations of historical sexual and physical abuse dating back several decades. Although the claims were not subject to a limitation period, the litigation itself had progressed very little after it was commenced. The Court of Appeal ultimately upheld the dismissal of the action for delay. The decision illustrates an important principle: an unlimited limitation period does not give a plaintiff unlimited time to prosecute a lawsuit once it has been commenced. Parties must still comply with procedural requirements and take reasonable steps to advance their cases.
At the same time, the passage of time must be considered carefully in historical sexual abuse cases.
A claim involving events from decades ago will naturally present evidentiary challenges. Memories may have faded. Documents may no longer exist. Witnesses may have moved, become unavailable, or died. These difficulties may exist regardless of when a lawsuit was started.
For that reason, the court may distinguish between prejudice caused by the passage of time and prejudice caused by a plaintiff’s delay in prosecuting an existing proceeding. For example, if an alleged incident occurred 30 years ago, a defendant may have difficulty locating witnesses simply because of the age of the allegations. That does not necessarily mean the plaintiff caused the resulting difficulty.
The analysis may be different where a plaintiff has commenced a lawsuit and then allows it to remain inactive for several additional years. In those circumstances, the defendant may argue that the delay has materially impaired the ability to investigate the allegations or present a defence.
Prejudice must be assessed factually. The relevant question is whether the plaintiff’s delay impaired the defendant’s ability to defend, rather than whether time simply passed. The court has rejected general assertions about fading memories where the evidence and litigation history did not establish non-compensable prejudice. (Carioca’s Import & Export Inc. v. Canadian Pacific Railway Limited, 2015 ONCA 592 (CanLII).) Prejudice might involve the loss of an important witness, the destruction or disappearance of relevant records, an inability to locate individuals who could previously have been found, or the loss of evidence needed to respond to specific allegations.
The court does not simply count the years that have passed. Instead, it considers the circumstances of the particular case, including the explanation for the delay, the length of the delay, what steps were taken during the proceeding, and the actual effect of the delay on the defendant’s ability to defend the claim.
This distinction is particularly important for survivors. Delayed disclosure of sexual abuse should not automatically be treated as evidence that a claim lacks merit. There may be many reasons why a survivor was unable to come forward earlier. Ontario’s legal framework recognizes that reality by removing the limitation period for proceedings based on sexual assault.
However, once a claim is commenced, there is a practical reason to move the litigation forward without unnecessary delay. Evidence can become more difficult to obtain over time, and procedural delays may create issues that could otherwise have been avoided.
For defendants, an historical claim should likewise be assessed on its particular facts. The fact that allegations are old may make defending the claim more challenging, but age alone does not necessarily establish the type of prejudice required to dismiss an action for delay. The defendant may need to identify specific evidence that has been lost or compromised and explain how the delay has affected the ability to respond to the claim.
Ultimately, time can become evidence in civil sexual abuse litigation. It may help explain why a survivor waited to come forward. It may affect the availability of witnesses and records. And, once litigation has begun, the passage of time may become relevant to whether the proceeding can fairly continue.
Ontario’s approach seeks to balance two important principles: survivors should have meaningful access to the civil justice system even when allegations arise from events many years in the past, while defendants are entitled to a fair opportunity to investigate and respond to the claims against them.
For anyone considering a civil sexual abuse claim in Ontario, or defending against a historical sexual abuse lawsuit, early legal advice can be important. A lawyer can assess the nature of the allegations, applicable limitation provisions, available evidence, the procedural history of the matter, and any potential issues relating to delay or prejudice.
The passage of time does not necessarily determine whether a claim can proceed. But in historical sexual abuse litigation, how that time has been spent, and what has happened to the evidence during it, can become an important part of the case.