Alberta decision to drop 2-year limit on sex assault lawsuits good for victims

September 15, 2017

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Lawyer Robert Talach says Alberta could see more lawsuits in the future similar to one recently brought against a Catholic religious order over historic allegations of sexual abuse by a Calgary priest and high school teacher.

“I think this is the tip of a rising iceberg, in the sense that the way the law was previously in Alberta made it difficult,” Talach told Postmedia.

“I think you’ll start to see the shroud slip off all these historical claims that weren’t able to proceed, and it’s really going to make a difference.”

Before the change last May, Alberta required victims to sue for damages within two years of the sexual assault, sexual misconduct or domestic abuse. Victims could extend that to an ultimate limit of 10 years if they could demonstrate there was a significant impediment to proceeding sooner.

Talach’s practice is one of the few in the country primarily dedicated to sexual abuse. The Ontario-based lawyer says his firm handles between 85 and 100 cases a year from across Canada, many involving educational institutions, youth organizations or clergy.

For years, Alberta’s time limit meant that Talach had to disappoint a lot of victims who approached him for help decades after they were abused.

His firm proceeded with only 8.33 per cent of cases brought by Alberta plaintiffs in the two-and-a-half years leading up to the change in legislation. In other Canadian jurisdictions during that same period, Talach estimates lawsuits were able to proceed 50 to 65 per cent of the time.

“These people literally call us and say, look, I’ve never told anyone about his before in my life — what can I do? Can I still do something?” Talach said.

“I would have to let them down and say, you know it’s very difficult to pursue this now because you have a very tough limitation in Alberta.”

Dropping the time limit brings Alberta in line with most other Canadian jurisdictions, including Ontario and B.C.

Advocates say there are myriad reasons victims proceed with a civil suit rather than criminal charges, even years after the incident occurred: trauma from sexual violence can prevent victims from making clear-headed decisions in the immediate aftermath of an attack; and when the victims are children, it can take even longer for them to come forward.

Debra Tomlinson, head of the Association of Alberta Sexual Assault Services, said the difficulty of criminal prosecutions in sexual assault cases is a significant factor.

“It’s one of the hardest crimes to prosecute,” Tomlinson said. “It is really hard to reach the level of burden of proof that is required for a conviction in a criminal trial."

Tomlinson said the nature of sexual assault means there often isn’t a lot of corroborating evidence: frequently there are no witnesses and little evidence for prosecutors to go on. The civil standard of proof, which is built on a preponderance of evidence rather than guilt beyond a reasonable doubt, can be seen as a more promising route to justice.

“The barriers that victims face are multi-faceted,” Tomlinson said. “We need to keep avenues open to people.”

Since the law changed, Talach has been reviewing stacks of old case files from Alberta to see if any of the claims can now proceed. He believes there could be decades of Alberta victims out there who can now move forward civilly.

“This is a good thing,” Talach said. “The ability to have legal recourse is a big deal in people’s recovery and healing.”

Published on August 21, 2017

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