Many readers will recall the recent Bill Cosby trial for sexual assault. The crime was allegedly committed in 2004, the criminal charge was laid on December 30, 2015 and the trial occurred in June 2017. It ended in a mistrial because the jury did not return a unanimous verdict. The prosecutor promises another trial.
While this is a criminal trial--where generally no limitations periods apply for indictable offences--it reveals the numerous challenges facing the witnesses, prosecutor, defence counsel and jurors, of taking matters to trial long after the wrongdoing is alleged to have occurred.
Civil lawsuits in Canada must normally be filed within two years of the event complained of. This is called the limitations period. It is set out in legislation and is strict. The lawsuit will not be heard and completed in those first two years, but it must be commenced within that time.
Recently, the Alberta government amended the Limitations Act [http://canlii.ca/t/52xm7] to eliminate the limitations periods for civil claims of "any misconduct of a sexual nature". This will potentially impact the workplace.
Reasons for Limitations Periods
There are three purposes of limitations periods. Knowing that evidence degrades over time, it is important to move a case forward sooner rather than later. Witnesses forget things. They move away and they die. Documentary evidence also gets lost, destroyed or is discarded.
The second purpose is that everyone should enjoy "peace and repose" after a certain date. When the limitations period has passed and no lawsuit has been filed, others (potential defendants and witnesses) can dispose of files and other records. They can safely move on in their lives without fear of being sued on that issue.
Finally, it is fair that alleged wrongs should be decided in the era in which they arose. If something was acceptable, or at least not repulsive and legally actionable at the time it occurred, it should not be judged and condemned by significantly different social standards decades later. For example, there is more clarity and sensitivity around behaviour of even a minor sexual nature today in Canada than there was, say, thirty years ago.
No Limitations Periods for Sexual Misconduct
Bill 2, An Act to Remove Barriers for Survivors of Sexual and Domestic Violence, eliminated the two-year limitation period for:
* sexual assault;
* any sexual misconduct involving a minor, intimate relationship or dependent; and