LAWYER INSIGHTS
Our sexual assault and abuse lawyers share their insights to help you move forward.
Understanding The Risk Of Security For Costs In Civil Sexual Abuse Cases For Survivors Who Live Outside Of Ontario
Lauren Malatesta explains that survivors of sexual abuse pursuing civil lawsuits in Ontario from outside the province may face an order for security for costs — a financial requirement that courts must weigh against access to justice concerns.
We often receive inquiries from people who were sexually abused in Ontario, but now live outside of Ontario. This situation can raise challenges. One of these, which we routinely warn people about, is that they may be required to pay “security for costs” as a condition of proceeding with a lawsuit in Ontario.
What does “security for costs” mean? This is where a court orders a plaintiff (the person making the claim) to set aside money and pay it into court so there is a fund available to cover the defence’s legal costs if, and only if, the defence ultimately wins the case. If the defence loses, the money is returned to the plaintiff. If the money is not paid into court as ordered by the court, the plaintiff will not be allowed to proceed with their case.
While this arises in all kinds of cases (not just sexual abuse) where someone is living elsewhere but claiming compensation in Ontario, there have been some recent court decisions dealing specifically with security for costs in the context of sexual abuse. Here, I will explain what considerations apply to security for costs by making reference to these court decisions, as they illustrate the potential challenges a survivor may encounter if they sue inside one province or territory because the events in question occurred there, but they live elsewhere.
Basic principles
There are many things a survivor should consider before starting a civil lawsuit. One is how you will pay your lawyer’s legal fees. But it is not only your own lawyer’s legal fees and expenses you may be required to pay during a lawsuit. You may also have to contribute to the legal fees and expenses of the person you are suing. These are called “costs.”
In Canada, we have what is called a “loser pays” system. This means if a party loses at trial, or during an intermediate step, then that party will be required to pay some portion of the winning party’s costs. Trouble can arise when the loser, although required to pay the other party’s costs, is unable to do so. As a result, the winner is unable to collect from the loser and is stuck paying their own legal costs
Because of this, Canadian courts have a mechanism for the person who is being sued (the defendant) to ask the court to make an order for “security for costs” from the person suing them (the plaintiff). To make this request, the defendant must bring a motion before a judge. If the defendant is successful, the plaintiff will have to pay money (for example, $50,000) into court as “security” in case they are required to pay the defendant’s costs in the future.
Every Canadian province and territory has rules that outline the types of situations where security for costs could be ordered. The primary example is where the person starting the lawsuit (the plaintiff) lives outside of the province or territory where they started the lawsuit.
Requiring a plaintiff to pay money into court up front as “security for costs” can be harsh. If a plaintiff is unable to come up with the money by a judge-imposed deadline, their case will be dismissed. In other words, requiring someone to pay security for costs may prevent the survivor from continuing with their lawsuit. This is particularly true for people who don’t have the money to pay into the court. This then begs the question: should survivors who lack financial resources to cover defence costs be prevented from starting, or continuing, lawsuits against their perpetrators? This question raises access to justice issues.
Canadian courts agree that the fundamental question is whether it would be just in the circumstances of the case to make the plaintiff post security in order to be allowed to pursue their claim. While defendants are entitled to some protection for their legal costs incurred while defending themselves, it is equally important to consider whether an order for security for costs is likely to frustrate a survivor’s ability to advance a meritorious legal claim.
Put differently, plaintiffs with an arguable case to be made, but who are financially disadvantaged should not be prevented from accessing the courts simply because they lack the financial means to post security. This is particularly true when the survivor’s inability to pay is related to the abuse itself, which may have interfered with their ability to complete their education and enter the workforce, or otherwise achieve their income-earning potential.
Recent court decisions for and against security for costs
Two recent decisions from the Court of the King’s Bench of Manitoba illustrate how these principles are treated in sexual abuse cases.
In C.A. v. N.S.C., 2024 MBKB 179, two sisters started a lawsuit for sexual abuse they said they experienced in the 1970s by a volunteer at their church. Their church was in Manitoba, where they grew up, but the sisters had moved to and were living in Alberta when they started their lawsuit. On a motion to the court, the defendants asked for a court order requiring the sisters to pay security for cost before the upcoming trial. The judge granted the request and the sisters were each ordered to pay $50,000 into the court within 30 days of the judge’s decision.
In reaching her decision, the judge in C.A. considered that the sisters owned property in Alberta, but did not have assets in Manitoba. The judge did not explain how this factored into her decision making, but pointed to a general rule that a defendant should not be put to the trouble and expense of enforcing an order for costs in another province.
The next year, the same judge considered this issue again in Burton v. James, 2025 MBKB 50. The plaintiff started a lawsuit against his former teacher and the school board for sexual abuse he said he experienced in the 1980s. The school board was in Manitoba, but the plaintiff lived in Ontario when he started his lawsuit. The defendant teacher brought a motion and asked for the plaintiff to be required to pay security for costs. The judge said no.
There was evidence put forward on the motion that the plaintiff had little to no money. As such, if the plaintiff had been required to post security, he would have been unable to satisfy the order and, therefore, unable to advance his sexual abuse claim. The fact the plaintiff retained a lawyer on a contingency fee basis, as many survivors do, did not impact the judge’s analysis. In addition, the judge considered the plaintiff’s evidence that the teacher’s sexual abuse impacted his mental health and ability to earn income over the years.
In reaching her conclusion, the judge put significant weight on the fact that, if the plaintiff was required to pay security for costs, his claim against the teacher would not continue due to his lack of financial resources. The judge also noted the plaintiff’s argument that his lack of financial resources was caused by the teacher’s sexual abuse and this argument weighed against granting an order for security for costs.
The judge in Burton distinguished her prior decision in the C.A. case. The judge said the sisters in the C.A. case had significant assets in the form of property and had the time and resources to prepare for a possible costs award. In the Burton case, no amount of time or preparation would have enabled the plaintiff to access the resources necessary to pay security into the court.
Ontario-specific factors
In Ontario, Rule 56 of the Rules of Civil Procedure, and the court decisions interpreting and apply this rule, govern security for costs. What many people do not appreciate is that, in Ontario, there is a statute that can also enter into the equation. The often-overlooked Victims’ Bill of Rights can be another factor for a judge to consider when asked to order security for costs in sexual abuse cases. This legislation applies to victims of crime who are seeking compensation from someone who has been convicted of a crime against them.
The Victims’ Bill of Rights states that a judge should not order victims to pay security for costs unless the judge, having considered the spirit and purpose of the Victims’ Bill of Rights, considers it is necessary to do so in the interests of justice. The spirit and purpose of the Victims’ Bill of Rights is to ensure the fair and compassionate treatment of those who have been victims of crime and suffered harm as a result.
In other words, Ontario’s Victims’ Bill of Rights provides a compelling basis for judges in Ontario to consider whether it is really just or fair to make a survivor pay security for costs simply to pursue their civil suit for compensation. In most cases, where the perpetrator of the abuse has been criminally convicted, the answer will be no. Where there is no criminal conviction, the answer may also be no, but the plaintiff must show their claim is meritious and they lack the financial means to be able to post security.
Take-aways
The key takeaways for survivors abused in Ontario but living outside of Ontario who are considering bringing a civil lawsuit in Ontario can be summarized as follows:
Defendants are entitled to ask the court to order you to pay security for costs if you start a lawsuit in a province other than the one you live in, but the court may refuse to grant the defendant’s request if you are unable to pay money into court because of financial constraints.
The courts and lawmakers have acknowledged the importance of removing barriers, such as security for costs orders, that prevent survivors from seeking justice and compensation for the harms they suffered as a result of being sexually abused.
If your perpetrator has been criminally convicted, the Victims’ Bill of Rights provides judges with a compelling basis to decline order to you to post security for costs in a civil claim for compensation.
Costs are one of many considerations for survivors contemplating out-of-province civil litigation that warrants further discussion with a lawyer with knowledge and experience in the sexual abuse area.
Contact Lauren Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Risk Of Re-Traumatization In Sexual Assault Cases May Result In Variation Of A Party's Inherent Rights In A Civil Action
Lauren Malatesta says that while parties to an action have an inherent right to be present during the examination for discovery of other parties, the court may exercise its discretion to exclude a party when it is satisfied, on a balance of probabilities, that there is cause to justify the exclusion.
Lawyers are accustomed to treating a party’s right to be present at the other party’s examination for discovery and to conduct oral examination of the opposing party as inviolable. In fact, these rights are not inviolable. In the appropriate circumstances, they will be varied to ensure the civil court process does not cause harm.
In the Ontario Superior Court decision of Antonopoulos v. the City of Toronto, Associate Justice Abrams granted a party’s request that the alleged perpetrator of her sexual assault be excluded from her examination for discovery on the basis that his presence would be traumatizing and could lead to a significant setback in her mental health.
This decision explains that while parties to an action have an inherent right to be present during the examination for discovery of other parties, the court may exercise its discretion to exclude a party when it is satisfied, on a balance of probabilities, that there is cause to justify the exclusion. For an exclusion order to be granted, such cause must be realistic and substantial and must result in prejudice to the party being examined, or be necessary to secure the ends of justice.
The party seeking an exclusion order, such as the alleged victim in this decision, bears the onus to demonstrate that this order is necessary to secure the ends of justice. In making her decision, Abrams A.J. considered prior examples where exclusion orders were granted, including where the evidence was likely to be tailored or parroted, a party was likely to be intimidated, or the proceedings were likely to be disturbed or disrupted. A further example, in keeping with this decision, is where a party is likely to be traumatized or mentally injured by the presence of the other party.
The alleged victim in the Antonopoulos case presented evidence from her treating psychologist confirming her diagnoses of Major Depressive Disorder and Post-Traumatic Stress Disorder (PTSD) and drawing a direct connection between her interactions with the alleged perpetrator and these diagnoses. The alleged victim herself also presented evidence that she was extremely fearful of seeing the alleged perpetrator and would find his presence intimidating in the context of being questioned about their interactions, including the alleged sexual assault. Her treating psychologist provided her clinical opinion that it would be significantly re-traumatizing for the alleged victim to be examined in the presence of the alleged perpetrator and this experience was highly likely to result an exacerbation of her PTSD and depressive symptoms.
In this decision, Abrams A.J. recognized the challenge in assessing these issues on an interim basis, prior to a final determination at trial. She acknowledged the alleged perpetrator denied having sexually assault the alleged victim and challenged the fairness of the investigation into the sexual assault by his former employer resulting in his termination for cause. Abrams A.J. also acknowledged the alleged perpetrator’s comments that he would not engage in any inappropriate behaviour or seek to intimidate the alleged victim during her examination. Nevertheless, on balancing this evidence with the evidence of the potentially adverse impact on the alleged victim’s mental health, Abrams A.J. found there was reason to believe the alleged perpetrator’s presence at the alleged victim’s discovery would present a real and substantial probability that intimidation, whether or not intended, was likely to occur.
More recently, in a 2024 hitherto unreported decision of the Ontario Superior Court of Justice, Justice Barnes granted a police officer’s request to be examined by written discovery in place of an oral examination. Barnes J. found there was compelling and persuasive psychological evidence that an oral examination was likely to be traumatizing and exacerbate the party’s PTSD and depressive symptoms. Moreover, he found that the other party’s procedural right to discover the case they had to meet could be satisfied by written discovery. Though this case did not involve allegations of sexual assault, but rather a police officer with work-related trauma, it is an important precedent for victims of sexual assault who may also be harmed by an oral examination for discovery.
Antonopoulos and this unreported decision represent an important acknowledgement by the courts that our civil court system can be significantly re-traumatizing to those who – by choice or legal effect – are made to participate in it. In these decisions, the courts acknowledge that a party’s inherent rights are not violable. The risk of harm to one party is an important factor to be weighed against protecting the inherent rights of another party.
A key takeaway for both plaintiff and defence lawyers is to keep an open mind when it comes to evaluating how to best protect their client’s mental health while still accomplishing the necessary procedural steps in a civil lawsuit. If a party risks serious injury from the legal process, their lawyer should consider moving for accommodation and ensure they are adducing compelling evidence in support of this request.
Contact Lauren Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.
Young Age Impacts Credibility And Reliability Assessments In Historical Sexual Abuse Claims
Lauren Malatesta says that when assessing a witness’ credibility and reliability in a historical claim, consideration must be given to a witness’ age at the time of the events and to the passage of time since then.
When assessing a witness’ credibility and reliability in a historical claim, consideration must be given to a witness’ age at the time of the events and to the passage of time since then.
There is no statutory limitation period in Ontario applicable to civil claims arising from or relating to sexual abuse. A victim may claim against a perpetrator or institution for historical sexual abuse.
In these historical claims, adult witnesses are often asked to recall and give evidence about sexual abuse they experienced as children. This raises the question: should the reliability and credibility of these witnesses be assessed as the adults they are now, or as the children they were when the abuse occurred?
The recent British Columbia decision in CLH v. KAG, 2022 BCSC 994 has confirmed a witness’ credibility should be assessed as an adult in such circumstances. That said, a lack of memory or inconsistencies, particularly as to peripheral matters such as time and place, must be considered in the context of the witness’ young age at the time of the events.
This B.C. case relies on the Supreme Court of Canada’s much-cited decision in R v. RW, 1992 CanLII 56. The court in RW acknowledged children experience the world differently from adults and details important to adults, such as time and place, may be missing from children’s recollections. These missing details alone are not a reason to discount the evidence given as children, or as adults looking back on historical events that happened in their youth.
While RW is a criminal case involving child sexual abuse, its adoption by the B.C. case demonstrates this credibility/reliability assessment principle is equally applicable to civil cases.
The defendant in the B.C. case was an adult at the time of trial but was found to have sexually assaulted his sister when he was aged 10 to 16. His sister was aged 6 to 12 at the time.
Though the B.C. judge had concerns about the credibility and reliability of both parties, those concerns were not based on minor inconsistencies. Rather, the parties were found to have exaggerated or changed their evidence at times to suit their interests in the case. Nonetheless, the judge ultimately believed the plaintiff and found the defendant had sexually assaulted her on multiple occasions over a period of years.
The principle in RW was recently also considered by the Court of Appeal for Ontario in a historical physical abuse case, Paddy-Cannon v. Canada, 2022 ONCA 110. The court granted the appeal and ordered a new trial. The court found the trial judge, in assessing the credibility and reliability of the witnesses’ evidence, was not mindful of the context, including the age of the witnesses at the time of the events and the passage of time since then.
Courts have acknowledged the impact of a witness’ age and fading memory on their ability to recall and give evidence about historical events. Increasingly, they are also coming to understand how trauma affects memory and recall.
When evaluating the strengths and weaknesses of witnesses’ evidence in historical cases, it is important for both plaintiff and defence lawyers to keep these considerations in mind and, where appropriate, bring civil court decisions that have followed the Supreme Court of Canada’s guidance in RW to courts’ attention so they have some guidance on how to assess the credibility and reliability of adult witnesses speaking to historical and traumatic events from childhood.
Contact Lauren Today
Lerners understands you need someone to believe in you. Our consultations are free. Call today and let us help you and your family.