An ongoing lawsuit against disgraced movie producer Harvey Weinstein has also resulted in one of the only rulings to interpret how amendments that exempted sexual assault claims from limitations periods in Ontario should be applied to defendants not alleged to be the perpetrator.
An ongoing lawsuit against disgraced movie producer Harvey Weinstein has also resulted in one of the only rulings to interpret how amendments that exempted sexual assault claims from limitations periods in Ontario should be applied to defendants not alleged to be the perpetrator.
“The amendments to the Limitations Act contained in Bill 132 are remedial, addressing systemic problems relating to sexual harassment and assault,” wrote Ontario Superior Court Justice Patrick Monahan in Jane Doe v. Weinstein.
The judge concluded that the exemptions in the provincial statute also applied to a former assistant of Weinstein who is alleged to be a “knowing facilitator” of his conduct in the action filed by an actor over two alleged sexual assaults in a Toronto hotel room in 2000.
Gillian Hnatiw, a lawyer who frequently acts for sexual assault complainants, says she believes the ruling reflects the will of the legislature when the measures were enacted in 2016.
“This is a very insidious crime. The government’s intention was to try to cast a broad net,” explains Hnatiw, a partner at Adair Goldblatt Bieber LLP in Toronto.
The plaintiff, who only can be identified as Jane Doe, is suing Weinstein, his former assistant Barbara Schneeweiss, Miramax and the Walt Disney Company.
Jane Doe had a small part in a movie that was being filmed in Toronto and a meeting with Weinstein was arranged. She first met with Schneeweiss, who said the producer wanted to meet in his hotel room, according to the statement of claim.
After she accompanied the woman to the hotel room, Schneeweiss was asked by Weinstein to leave and that is when the plaintiff was allegedly sexually assaulted the first time.
The lawsuit also alleges that there was a second meeting with the assistant, in which she indicated that Weinstein wanted to apologize.
Instead of an apology, Jane Doe was assaulted a second time, the statement of claim alleges.
The court heard that Schneeweiss has worked for Weinstein or companies controlled by him since 1996.
The Limitations Act was amended so that there are no time restrictions to file an action “for proceedings based on a sexual assault.”
As well, claims made “in relation to the applicable act” against individuals for negligence, breach of a duty or vicarious liability are also not subject to limitations periods.
“The language is clear. It is intentionally as broad as can be,” says Hnatiw.
The lawyer acting for Schneeweiss, however, argued that since the claims against her are based on failing to warn Jane Doe about Weinstein, they are outside the scope of the limitations period exceptions.
The phrase “in relation to” in the statute should apply in the context of an alleged sexual assault to a third party not directly involved only if there is vicarious liability or an “independent duty” to the victim, stated Jonathan Rosenstein in written submissions filed with the court.
The only other reported decision in Ontario on the scope of the limitations exceptions in a claim against a third party is a ruling by Superior Court Justice Thomas Lederer.
In Fox v. Narine, the judge concluded that a claim could proceed against a shelter for Indigenous women despite being filed outside the normal limitations period.
In that case, a woman staying at the shelter was sexually assaulted by a man who broke into the facility.
Since the shelter held itself out as a safe place for women, it owed a duty of care and fell within the limitations period exception, the judge found.
Lederer highlighted the goal of the statutory amendments in his ruling.
“The policy behind this statute is to improve the protection the law offers to the victims of sexual violence. This is contrary to a proposition that would limit the application of a statutory provision that extends that protection to those that carry the responsibility of a duty of care that would otherwise apply. There is no consideration that overrides the prima facie duty of care that is in place,” he wrote.
Monahan, who was deputy attorney general of Ontario when the changes took effect, also noted the policy goals in his ruling.
“The clear objective of this provision is to ensure that victims of sexual assault may pursue civil claims, not just against the perpetrators of the assaults but also against others who may be civilly liable in connection with the assaults, regardless of when the claim is commenced,” wrote Monahan.
“With that context in mind, in my view the purpose of section 16 (1.3) is to ensure that, where a proceeding involves a claim for civil liability arising from or relating to a sexual assault, that proceeding cannot be barred by the Act,” he stated.
Rosenstein, who heads RosensteinLaw in Toronto, declined to comment on the specifics of the allegations against his client.
In terms of the legal analysis on the limitations exception, he suggests the ruling is very broad in terms of its scope when a sexual assault is alleged.
“Limitations periods are about a balance between plaintiffs and defendants. This decision is saying a court should err on the side of when a claim alleges there is any connection whatsoever to the sexual assault,” Rosenstein says.
Claims against third parties in sexual assault cases “will rarely be decided at the pleadings stage,” says Daniel Zacks, a senior associate at Clyde & Co LLP in Toronto, who writes extensively on limitations issues.
“From a limitations perspective, once you have as a matter of policy that you want to protect the claims of sexual assault victims, you have shifted the balance in this area,” he says.
The pleadings of the plaintiff are presumed to be true for the purpose of a limitations motion, and given the allegations against Weinstein’s former assistant, the judge’s conclusion on this issue is not a surprise, notes Zacks.
“There is room, though, for future debate on what degree of connection [to the sexual assault] is required,” he says.
In this case, the former assistant to Weinstein is defending alleged conduct from more than 17 years ago.
However, that should not entitle her to a “carve out” from the litigation, even if Weinstein is the person alleged to have committed the sexual assaults, Hnatiw states.
“It would be very unfair to the plaintiff to get to the place where she is now ready to go to court and then have to face a new legal barrier [a limitations period],” says Hnatiw.
