Limitation periods for the Tort of Intentional Infliction of Mental Suffering in cases of Intimate Partner Violence in Ontario
Is there a limitation period for the tort of intentional infliction of mental suffering (“IIMS”) in cases of intimate partner violence in Ontario?
It depends.
If the claimant can establish that the facts supporting a tort of IIMS are sufficiently connected to sexual or physical assault, there will be no limitation period for the tort of IIMS pursuant to section 16(1.3) of the Ontario Limitations Act.[1]
The basic limitation period in Ontario pursuant to the Limitations Act is 2 years.[2]
Section 16 of the Limitations Act provides for exceptions to the basic limitation period – there is no limitation period for sexual assault (s. 16(h)), misconduct of a sexual nature (s.16(h.1)), and physical assault between parties in an intimate relationship or survivors who are who are financially, emotionally, physically or otherwise dependant on the perpetrator (s. 16(h.2)).[3]
Section 16(1.3) of the Limitations Act, provides that clauses [16](1) (h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability.[4]
The court has interpreted s. 16(1.3) to conclude that where a tort claim where a limitation period would otherwise apply is sufficiently related to a claim where there is no limitation period pursuant to s. 16(h),(h.1) or (h.2) of the Limitations Act, there is no limitation period for all related claims. In Jane Doe v. Weinstein, the language in section 16(1.3) was relied on by the court to affirm that claims against a third party for aiding in a sexual assault, including claims for IIMS, were not statue barred as they were sufficiently related to the assault.[5] In X.H. v. Cota, the Ontario Court of Appeal confirmed that section 16(1.3) applies to the same defendant or third parties. In that case the Court of Appeal affirmed the motion judge’s ruling that a variety of tort claims against one defendant were not statute barred pursuant to s. 16(1.3), including a claim for IIMS as the record before the court demonstrated a connection between these claims and the claim against the defendant for sexual assault.[6]
There is no basis for section 16(1.3) and the reasoning in X.H. v. Cota not to apply to claims for IIMS in circumstances of intimate partner violence, provided the claimant can demonstrate the claim for IIMS is sufficiently connected to a claim for sexual or physical assault. Often in relationships fraught with intimate partner violence, the pattern of abuse over the course of the relationship includes instances of physical assault and/or sexual assault, along with ongoing patterns of coercive controlling behaviour, emotional abuse and/or financial abuse, which may constitute the tort of IIMS. The Ontario Court of Appeal in Ahluwalia v. Ahluwalia, recognized these patterns in relationships with intimate partner violence.[7] While an Ontario court has not confirmed that these pattern constitutes a sufficient connection pursuant to section 16(1.3) of the Limitations Act, I submit that in most cases it would be far-fetched to conclude that where there is an established pattern of abuse over the course of a relationship which includes behaviour constituting the tort of IIMS and physical and/or sexual assault, this pattern is not sufficient to establish a connection pursuant to section 16(1.3). If a sufficient connection pursuant to section 16(1.3) cannot be established, the limitation period is 2 years pursuant to section 4 of the Limitations Act.[8]
In Zunnurain v Chowdhury, the Court awarded compensatory damages of $175,000 for assault, battery and IIMS for years of intimate partner violence.[9] While the court does not address a limitation period issue in relation to IIMS, it is clear that the court considered a pattern of abuse perpetrated over the course of the parties’ 25-year relationship in awarding damages for assault, battery and IIMS. The court does not appear to have limited the damages for IIMS for the conduct perpetrated in the two years preceding the commencement of the Application.
Where advancing an argument that a claim for IIMS is not statute barred pursuant to section 16(1.3) of the Limitations Act, it is important to place a strong record before the court establishing the pattern of abuse and the connection or relationship between the facts supporting the claim for IIMS and the physical or sexual abuse. Evidence of ongoing patterns of abuse may be necessary, and social science literature and other secondary sources addressing the patterns in IPV and the resulting harms may also be helpful in advancing these claims.[10]
[1] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 16(1.3)
[2] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 4
[3] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 16(h),(h.1) & (h.2)
[4] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., s. 16(1.3)
[5] Jane Doe v. Weinstein, 2018 ONSC 1126
[6] XH v. Cota, 2022 ONCA 274, at paras. 7 & 8
[7] Ahluwalia v. Ahluwalia, 2023 ONCA 476, at paras. 3, 73 & 74
[8] Ontario Limitations Act, 2002, SO 2002 c. 24 Sched B., ss. 4 & 16(1.3)
[10] See for example Andy Myhill, “Measuring Coercive Control: What Can We Learn From National Population Surveys?” (2015) 21:3 Violence Against Women 355 at 369, [10] Evan Stark (2007) Coercive Control: How men entrap women in personal life. Oxford, UK: Oxford University Press, Holly Johnson et al, “Intimate Femicide: The Role of Coercive Control” (2019) 14:1 Feminist Criminology 3, and the Joint Federal/Provincial Commission into the April 2020 Nova Scotia Mass Casualty, The Mass Casualty Commission: Final Report of the Mass Casualty Commission: Turning the Tides Together List of Recommendations (2020)
