CANADA
Lexology
Chris T.J Blom
Canada April 1 2017
In the October 3, 2016 edition of the Lloyd’s Brief I addressed the challenges of limitations in sexual abuse claims. The article discussed coverage issues including difficulties associated with proving policies of insurance in historical sexual abuse claims, the interpretation of the grant of coverage and exclusions for intentional acts. In this article we consider the further issue which arises when the employer is aware of the historical acts of sexual abuse but does not inform the insurer.
To provide some background to the discussion, we consider an institutional framework where an employee committed acts of sexual abuse in the past, as late as the mid-1980s. There is sufficient historical evidence in the employment records to suggest that the employer was aware of the abuse. The employer was insured under a commercial general liability policy with occurrence-based coverage. The employer did not advise the insurer of the abuse, nor did the insurer ask the employer if it was aware of any acts of abuse.
As discussed in the earlier article, the Supreme Court of Canada liberalized the limitation period for sexual abuse claims to the point where the limitation period does not begin until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts.[1] Typically, that is not until he or she has received counselling. More recently, in Ontario, legislation has been passed to eliminate entirely the limitation period in cases of sexual abuse.
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