Sexual abuse can have profound and lasting effects on survivors and their families. For those considering legal action, understanding the options available through the civil justice system can be an important first step.
A civil lawsuit can provide survivors with an opportunity to seek financial compensation from those responsible for the abuse. In some circumstances, it may also allow survivors to pursue claims against institutions or other parties whose actions or failures contributed to the harm.
At the same time, pursuing a civil claim is a deeply personal decision. For some survivors, taking legal action can be empowering and provide a sense of accountability. For others, participating in litigation—including confronting allegations and undergoing cross-examination—may be emotionally difficult or retraumatizing.
This article provides a general overview of civil claims arising from sexual abuse in Manitoba to help survivors understand the process and make an informed decision about whether pursuing a civil action is right for them.
What is the Difference Between Civil and Criminal Proceedings?
A civil lawsuit and a criminal prosecution serve different purposes. A criminal proceeding is brought by the Crown and is intended to determine whether an accused person is guilty of a criminal offence. A civil proceeding, on the other hand, allows a survivor to seek financial compensation from the perpetrator for the harm they experienced.
A criminal conviction is not required before a survivor can bring a civil claim. However, where a perpetrator has been convicted of a criminal offence arising from the abuse, that conviction may provide important evidence in a subsequent civil proceeding.
The two processes are separate, and a survivor may pursue a civil claim regardless of whether criminal charges were laid or resulted in a conviction.
What is the Limitation Period for Sexual Assault Claims in Manitoba?
One of the most important considerations for survivors is the time available to bring a claim.
Under Manitoba’s limitation legislation, there is no limitation period for a claim relating to an assault of a sexual nature. This can be particularly significant for survivors who are not ready to take legal action immediately following the abuse.
The absence of a limitation period may also extend to other potential claims arising from the sexual abuse. For example, a survivor who experienced abuse at a school, church, or other institution may potentially have claims not only against the individual perpetrator, but also against the institution for failing to protect the survivor.
Although there may be no limitation period for these claims, waiting to pursue a lawsuit can still have practical consequences. Evidence may become more difficult to obtain over time, and witnesses’ memories may fade. Survivors should therefore obtain legal advice about their circumstances before deciding when or whether to proceed.
Can a Civil Claim Be Kept Confidential?
Court proceedings are generally matters of public record. For survivors of sexual abuse, concerns about privacy and confidentiality can therefore be significant.
Depending on the circumstances, a lawyer may be able to request measures intended to protect a survivor’s privacy, such as sealing the court file or restricting the publication of the parties’ names.
The availability of these protections depends on the circumstances and the orders that the court is prepared to make. Survivors who are concerned about confidentiality should discuss their options with counsel before commencing a claim.
What Must a Survivor Prove?
The standard of proof in a civil case is known as the balance of probabilities. In practical terms, this means that the judge must determine that it is more likely than not that the abuse occurred.
This is different from the criminal standard of proof, which requires the Crown to prove guilt beyond a reasonable doubt. A person can therefore be acquitted in a criminal proceeding and still potentially be found civilly liable.
What Types of Civil Claims May Be Available?
Depending on the circumstances, a civil action arising from sexual abuse may involve several different causes of action, including:
- Battery: An intentional and harmful or offensive touching of another person without consent.
- Assault: A threat or use of force that causes a person to reasonably apprehend imminent harmful or offensive contact.
- Negligence: A failure to exercise the level of care that a reasonably prudent person would have exercised in similar circumstances.
- Breach of fiduciary duty: A breach of a duty requiring a person or institution to act with a high degree of honesty and loyalty and in the best interests of another person.
- Vicarious liability: Circumstances in which an employer or other supervisory party may be legally responsible for the conduct of an employee or subordinate.
Where multiple defendants are found liable, they may be held jointly and severally liable for damages. This can have important implications for a survivor’s ability to recover compensation.
What Does the Civil Litigation Process Look Like?
Every case is different, but a civil claim generally follows a number of stages.
- Attempting to Resolve the Matter
Before commencing a court action, a lawyer may send a demand letter to the alleged perpetrator or other responsible parties. The letter may outline the survivor’s allegations and the compensation being sought.
In some cases, this process results in a settlement without the need to commence a lawsuit.
- Commencing a Lawsuit
If the matter cannot be resolved, the survivor may commence a civil action by filing a Statement of Claim with the Manitoba Court of King’s Bench.
The defendant will generally respond by retaining their own legal counsel and filing a Statement of Defence, denying the allegations made.
- Discovery
The discovery process allows each side to obtain relevant information and evidence from the other.
This includes the exchange of relevant documents. Depending on the circumstances, these documents may include police records, medical records, therapy records, photographs, journal entries, text messages, emails, and other evidence relevant to the claim.
The parties will also be examined under oath by opposing counsel. This can be one of the most challenging aspects of litigation for survivors, as they will be required to answer detailed questions about their experiences and the resulting impact on their lives.
- Pre-Trial Conference
Once the discovery process is substantially complete, counsel will generally attend a Pre-Trial Conference with the assigned judge.
The conference provides an opportunity to address issues relating to the trial, discuss the prospects of settlement, and, where appropriate, schedule trial dates.
- Trial
If the case does not settle, it will proceed to trial.
The survivor and other witnesses will be required to testify. Depending on the issues in the case, expert witnesses may also provide evidence concerning the survivor’s injuries, psychological harm, financial losses, or future care needs.
At the conclusion of the trial, the judge will determine whether the survivor has established their claim on a balance of probabilities and, if so, the amount of compensation that should be awarded.
Generally, the successful party may also receive an award of costs, requiring the unsuccessful party to contribute toward the successful party’s legal expenses.
What Compensation Can a Survivor Receive?
If a civil claim is successful, a survivor may be entitled to different types of damages depending on the circumstances.
General Damages
General damages are intended to compensate a survivor for pain, suffering, and loss of enjoyment of life resulting from the abuse.
The amount awarded depends on the specific circumstances of each case. Courts consider the evidence before them and may also consider awards made in previous cases involving similar injuries.
Punitive Damages
In appropriate circumstances, a court may also award punitive damages.
Punitive damages are intended to punish particularly serious or wrongful conduct and to deter similar conduct in the future. They are distinct from compensation for the survivor’s losses.
Other Losses
Depending on the evidence, a survivor may also be entitled to compensation for other losses arising from the abuse. These may include lost income, diminished earning capacity, or future care costs.
The damages available in any particular case will depend on the nature of the abuse, its impact on the survivor, and the evidence supporting the claim.
Settlement: Resolving a Claim Without a Trial
The vast majority of civil lawsuits are resolved before reaching trial.
A settlement may be negotiated directly between counsel or through a formal mediation. For survivors, settlement can provide an important alternative to the uncertainty, expense, and emotional demands of a trial.
One significant benefit of settlement is that the survivor does not have to proceed through a trial or undergo cross-examination.
Settlements involving sexual abuse often include confidentiality provisions. These agreements can restrict the disclosure of information about the abuse and the terms of the settlement. The precise terms vary from case to case, and confidentiality agreements may contain exceptions allowing disclosure to certain people, such as therapists, accountants, or close family members.
Deciding Whether to Pursue a Civil Claim
There is no single right decision for every survivor.
For some people, pursuing a civil action can provide a sense of empowerment, accountability, and recognition of the harm they experienced. For others, the litigation process may be emotionally difficult and may bring back painful experiences.
A lawsuit also requires an investment of time, energy, and financial resources. There is no legal outcome that can undo the trauma caused by sexual abuse.
The absence of a limitation period for sexual assault claims in Manitoba can give survivors valuable time to consider their options. Speaking with a lawyer does not obligate a survivor to commence a lawsuit. It can simply provide an opportunity to understand the available legal remedies, the potential risks, and what the litigation process may involve.
If you believe a civil claim may be right for you, we invite you to contact our office to discuss your circumstances and learn more about your options.
For a confidential discussion, please contact:
Lawyer
204.956.3554
Note: This article is of a general nature only and is not presented as a comprehensive review of the law or as being exhaustive of all possible legal rights or remedies. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice applicable to their own circumstances. We do not undertake any obligation to update this article to reflect changes in law that may occur in the future.