Ontario Court of Appeal upholds summary dismissal of domestic assault claim

Woman sought 1.4 million dollars in damages based on ex's conduct after relationship ended

Ontario Court of Appeal upholds summary dismissal of domestic assault claim

The Ontario Court of Appeal has recently affirmed that the basic two-year limitation period in Ontario’s Limitations Act, 2002 barred a lawsuit alleging assault and other causes of action.

The appellant and the respondent were in a romantic relationship from 2003 to 2010 in Hamilton, ON. In 2019, the appellant filed a statement of claim against the respondent seeking $1.4 million in damages based on the respondent’s conduct, including assault, toward her between 2010 and 2012 after she ended their relationship.

The appellant claimed that the respondent:

  • falsely reported to the Workplace Safety and Insurance Board that she was fraudulently claiming benefits
  • convinced his friends and associates to give false or exaggerated testimony to the tribunal’s investigator
  • falsely reported to the Hamilton Police Service that she was harassing him
  • disparagingly said that she was a “fraud and a liar”
  • sent her messages aiming to threaten and harass her.

The appellant attached to her affidavit exhibits consisting of emails that she sent to herself during the period when she was allegedly harassed and threatened. These emails documented her fear of the respondent and his “violent and aggressive” behaviour, she said.

The appellant did not dispute that the alleged conduct occurred more than two years before she brought her statement of claim, longer than the period for an action outlined in s. 4 of the Limitations Act, 2002. However, she argued that there was a genuine issue for trial regarding the following: first, whether her fear of the respondent prevented her from discovering her claim within the two-year period in line with s. 5(1)(a)(iv) of the Act; and second, whether an exception to the limitation period applied because her claim was at least partly based on an assault occurring in an intimate relationship pursuant to s.16(1)(h.2)(i) of the Act.

The motion judge described the appellant’s evidence as unpersuasive and lacking in particulars. She noted that the police reports that the appellant provided included a comment that she did not fear for her safety.

The judge found that s. 16(1)(h.2)(i) did not apply because the appellant failed to show that she had reasonable grounds to believe that she was in danger of imminent harmful and offensive conduct or violence. There was no evidence of the respondent’s alleged conduct potentially amounting to “assault” under that section, the judge said.

Summary dismissal proper

In Deluca v. Bucciarelli, 2022 ONCA 774, the Ontario Court of Appeal dismissed the appeal.

First, the appellant argued that the motion judge reversed the burden of proof on a summary judgment motion. The appellate court disagreed. Given that the appellant acknowledged that the alleged conduct went beyond the two-year period, she was the one who had to “put her best foot forward” and to provide evidence establishing a genuine issue for trial relating to ss. 5(1)(a)(iv) or 16(1)(h.2)(i).

Second, the appellant contended that the judge erred in appreciating the scope of s. 16(1)(h.2)(i) or in articulating or applying the elements of the tort of assault.

The Court of Appeal rejected these arguments pursuant to the ruling in Barker v. Barker, 2022 ONCA 567. Barker explained that a tortious assault involved “intentionally causing another to fear imminent contact of a harmful or offensive nature,” with imminence being a “critical component.” The motion judge articulated the elements in accordance with Barker, the appellate court said.

Third, the appellant asserted that the judge failed to address her argument regarding s. 5(1)(a)(iv). The Court of Appeal responded that, while the judge did not specifically refer to that section, her finding that the appellant’s evidence was unpersuasive and lacking in particulars was “fatal” to this argument.

Fourth, the appellant claimed that assumptions based on myths and stereotypes or palpable and overriding errors infected the judge’s reasons. The appellate court disagreed and noted that the appellant’s statement was a “bald assertion” that lacked particulars.

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