“When the parties argued the summary judgment motion in February, 2016, the Limitations Act, 2002 contained two limitation period regimes for sexual assault claims, the application of which turned upon the nature of the relationship between the plaintiff and the defendant. First, under s. 16(1)(h), no limitation period applied to a sexual assault claim against a person in a position of trust or authority over the complainant or on whom the complainant was dependent. Second, for all other sexual assault claims, the ordinary two-year limitation period applied. However, pursuant to s. 10(1), time did not run while the complainant was incapable of commencing a proceeding because of her physical, psychological or mental condition; s. 10(3) presumed the person was incapable of commencing the proceeding earlier than the date it was commenced, unless the contrary was proved.
Upon coming into force on March 8, 2016, Schedule 2 to the Amending Act significantly changed the provisions of the Limitations Act, 2002 concerning sexual assault claims. Section 16(1)(h) of the Act was amended to provide there is no limitation period in respect of “a proceeding arising from a sexual assault.” Section 10 of the Act dealing with a plaintiff’s capacity was repealed.
The new ss. 16(1.1) and (1.2) gave retroactive effect to the removal of any limitation period for “a proceeding arising from a sexual assault”:
16. (1.1) Clauses (1) (h), (h.1) and (h.2) apply to a proceeding whenever the act on which the claim is based occurred and regardless of the expiry of any previously applicable limitation period, subject to subsection (1.2).
(1.2) Subsection (1.1) applies to a proceeding that was commenced before the day subsection 4 (2) of Schedule 2 to the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 came into force, unless the proceeding,
(a) was dismissed by a court and no further appeal is available; or
(b) was settled by the parties and the settlement is legally binding.”