• by David Tobin
Originally published in the OFLM 2023-8 edition
Overview
When it comes to torts specific to family violence in an intimate relationship, the 2-year limitation period does not apply to assault and battery. However, pursuant to the Limitation Act, there likely would be a 2-year limitation period in bringing the tort of intentional infliction of emotional distress.
Therefore, in light of the Ahluwalia decision, family lawyers should now not only be mindful of possible torts to advise their clients of, they also need to consider their correct limitation period.
Introduction
The Ahluwalia v. Ahluwalia decision is receiving a lot of press and attention both at the trial and appellate level (2022 ONSC 1303; 2023 ONCA 476). As a result, it is likely that family lawyers are thinking a lot more about possible tort claims that their clients can bring, or that may have to defend against. And if they are not thinking about this, then they should.
Some thoughts that previously may have kept a lawyer up at night included,
- Oh boy, did my client miss the period in which they can advance a claim for damages for an assault or battery?
- Does the limitation period begin running at the time of the assault or at the end of the relationship?
- Is it a two-year limitation period?
It will be of some comfort to lawyers to remember that in the context of family violence and damages for (sexual) assaults and batteries arising from family violence, there is no limitation period in which a proceeding must be initiated.
The Limitations Act, 2002, SO 2002, specifically section 16(1)(h.2)(i), states:
16 (1) There is no limitation period in respect of,
(h) a proceeding based on a sexual assault;
(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:
(i) they had an intimate relationship,
(ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;
A marriage or common law spousal relationship is considered an “intimate relationship.”
Justice Mandhane in her trial decision briefly referred to this section at paragraph 30:
At the outset of trial, as a preliminary matter, the Father argued that the Mother's tort claim was statute barred. I ruled that it was not because it was based on an alleged assault while the parties were in an "intimate relationship" and/or in a relationship of dependency.
Given that a spousal relationship will be an “intimate relationship,” the next question is, which torts are covered by this section?
What is Assault for the purposes of this section?
For 16(1)(h.2) to be triggered, the proceeding must be based on an assault. The Limitations Act specifically includes “battery” in the definition of “assault” for the purposes of the interpretation of the Act.
The Ontario Court of Appeal’s decision in Barker v. Barker, 2022 ONCA 567 addressed what “assault” means in the context of section 16(1)(h.2). At paragraphs 137-138, the court wrote as follows:
In common parlance, the terms “battery” and “assault” are often used interchangeably. Indeed, the case law demonstrates that the two torts are often “blurred together and called ‘assault’”…
That said, while related, battery and assault are distinct concepts in tort law, both being examples of trespass to the person…a battery involves actual physical contact by the tortfeasor or bringing about harmful or offensive contact with another person, whereas a tortious assault involves intentionally causing another to fear imminent contact of a harmful or offensive nature.
As between spouses, battery will likely involve violent contact, whether it is hitting, choking, slapping, etc. An assault will include threats of imminent harm. These are key elements if section 16(1)(h.2) is to be invoked.
Without an assault, a party cannot rely on section 16(1)(h.2) to extend the limitation period. In Holguin v. Mohan (2021 ONSC 682), an Applicant who alleged to have been in an abusive intimate relationship sought to rely on section 16(1)(h.2) to extend the period in which to claim unjust enrichment and a constructive trust over the Respondent's property. The Applicant claimed that because he endured violence in the context of an intimate relationship, no limitation period should apply. At paragraph 45 of her reasons, Justice Kimmel discussed the applicability of section 16(1)(h.2):
This section of the Limitations Act does not apply to the circumstances of this case. There are no allegations of sexual assault, of misconduct of a sexual nature or of assault. Holguin attempts to characterize his relationship with Mohan as intimate and involving financial, emotional, or physical dependence. However, this dependence is only relevant under ss. 16 (h.1)(iii) and (h.2)(ii) of the Limitations Act if the claim is based on misconduct of a sexual nature or assault, and that is nowhere alleged.
Thus, without an assault, section 16(1)(h.2) cannot be relied upon.
However, it is unclear whether proceedings related to the tort of intentional infliction of emotional distress would fall within this definition. On a plain reading of the Limitations Act, it would appear not. Therefore, the standard 2-year limitation period likely applies.
Conclusion
The lack of a limitation period for assaults and batteries perpetrated in the context of a spousal relationship is a recognition of the special type of harm that occurs with family violence.
The extended period provides victims, predominantly women, time to bring such claims. It allows them to not to have to decide in the immediate aftermath of the separation whether they want to relive their experience or abandon their legal remedies for damages.
It may be worth extending the limitation period for any intentional torts perpetrated in the context of an “intimate relationship.” However, that is not the current state of the law.
For now, victims will be best served initiating proceedings for torts not covered in section 16(1) of the Limitation Act within 2 years after they have been discovered.