A.C. v. Joyce

[Indexed as: C. (A.) v. Joyce]

Ontario Reports

Ontario Superior Court of Justice,

Perell J.

March 30, 2016

130 O.R. (3d) 114 | 2016 ONSC 2164

Case Summary

Actions — Bars — Settlement — Plaintiff suing defendant for damages for sexual assault — Parties agreeing without going through their lawyers that plaintiff would accept $50,000 from defendant — Cheque for $50,000 with memo stating "paid in full" deposited into plaintiff's counsel's trust account and funds paid out to plaintiff — Parties not signing formal minutes of settlement and mutual releases — No settlement reached as there was no meeting of minds — Parties attempting to deceive each other about effect of plaintiff's acceptance of $50,000.

Limitations — Sexual assault — Plaintiff alleging that she was sexually assaulted by defendant on May 19, 2011 — Plaintiff consulting counsel on June 21, 2011 and instructing counsel to commence sexual assault action — Notice of action issued on May 31, 2013 — Plaintiff not discovering existence of claim until she consulted counsel on June 21, 2011 — Limitation period suspended between May 19, 2011 and June 21, 2011 in any event as defendant failed to rebut presumption in s. 10(3) of Limitations Act, 2002 that plaintiff was incapable of commencing proceeding — Action not statute-barred under Limitations Act — Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment) applying to claim — No limitation period existing for plaintiff's sexual assault claim under that Act — Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, s. 10(3) — Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2.

Torts — Defamation — Slander — Plaintiff's slander action dismissed on motion by defendant for summary judgment as there was no proof that impugned statements were made and no evidence that they caused any special damages to plaintiff if they were made.

The plaintiff alleged that she was sexually assaulted by the defendant, an octogenarian billionaire, on May 19, 2011 while she was his house guest. She consulted counsel on June 21, 2011 and instructed him to commence an action for damages. Counsel drafted a statement of claim seeking damages of $1 million plus aggravated damages of $500,000 and punitive damages of $100,000. The plaintiff then started communicating directly with the defendant, without their lawyers being in attendance, and agreed to accept $50,000. A cheque for $50,000 which was memorialized "paid in full" was deposited into her lawyer's trust account and the funds were paid out to her. The parties did not sign formal [page115] minutes of settlement or mutual releases. The plaintiff commenced an action for damages for sexual assault and slander on May 31, 2013. The defendant brought a motion for summary judgment dismissing the action on the grounds that the sexual assault claim was statute-barred, that the parties had entered into a settlement and that the sexual assault claim was therefore released, and that the slander suit failed for want of evidence and the absence of special damages.

Held, the motion should be granted in part.

No settlement was reached as there was no meeting of the parties' minds. Both parties were attempting to deceive each other about the effect of the plaintiff's acceptance of $50,000. Accordingly, the sexual assault claim was not released.

The slander claim failed because there was no evidence that the impugned statements were made and, even if they were made, the plaintiff had not suffered special damages.

The sexual assault claim was not statute-barred under the Limitations Act. The plaintiff did not discover that she had a claim against the defendant until she consulted counsel on June 21, 2011. Her action was commenced within two years of that date. In any event, the running of the limitation period was suspended from May 19, 2011 until June 21, 2011 because the defendant did not rebut the presumption in s. 10(3) of the Limitations Act that "a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced". After the summary judgment motion was argued, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 came into force. That Act applies to a proceeding, like this one, that was commenced before March 6, 2016 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. Neither of those precluding conditions applied. Accordingly, under that Act, there was no limitation period for the plaintiff's sexual assault claim.

Cases referred to

Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] 1 S.C.R. 126, [2014] S.C.J. No. 8, 2014 SCC 8, 314 O.A.C. 49, 453 N.R. 101, 2014EXP-318, 366 D.L.R. (4th) 671, J.E. 2014-161, EYB 2014-231952, 12 C.C.E.L. (4th) 63, 27 C.L.R. (4th) 65, 21 B.L.R. (5th) 311, 47 C.P.C. (7th) 1, 37 R.P.R. (5th) 63; Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7, 314 O.A.C. 1, 453 N.R. 51, 2014EXP-319, J.E. 2014-162, EYB 2014-231951, 95 E.T.R. (3d) 1, 12 C.C.E.L. (4th) 1, 27 C.L.R. (4th) 1, 21 B.L.R. (5th) 248, 46 C.P.C. (7th) 217, 37 R.P.R. (5th) 1, 366 D.L.R. (4th) 641, 2014EXP-319, J.E. 2014-162, apld

Choc v. Hudbay Minerals Inc. (2013), 116 O.R. (3d) 674, [2013] O.J. No. 3375, 2013 ONSC 1414, 4 C.C.L.T. (4th) 65, 17 B.L.R. (5th) 303, 230 A.C.W.S. (3d) 649 (S.C.J.); M. (K.) v. M. (H.), 1992 CanLII 31 (SCC), [1992] 3 S.C.R. 6, [1992] S.C.J. No. 85, 96 D.L.R. (4th) 289, 142 N.R. 321, J.E. 92-1644, 57 O.A.C. 321, 14 C.C.L.T. (2d) 1, EYB 1992-67549, 36 A.C.W.S. (3d) 466, revg [1989] O.J. No. 2379, 18 A.C.W.S. (3d) 490 (C.A.), consd

Other cases referred to

Andriano v. Napa Valley Plaza Inc., [2010] O.J. No. 4951, 2010 ONSC 5492, 195 A.C.W.S. (3d) 93 (S.C.J.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R. (3d) 481, [1994] O.J. No. 1214, 115 D.L.R. (4th) 557, 72 O.A.C. 178, 21 M.P.L.R. (2d) 73, 39 R.P.R. (2d) 1, 48 A.C.W.S. (3d) 443 (C.A.); Boyce v. Toronto (City) Police Services Board, [2011] O.J. No. 7, 2011 ONSC 53, 195 A.C.W.S. (3d) 1149 (S.C.J.); Canada (Attorney General) v. Lameman, [2008] 1 S.C.R. 372, [2008] S.C.J. No. 14, 2008 SCC 14, 292 D.L.R. (4th) 49, [2008] 2 C.N.L.R. 295, 86 Alta. L.R. (4th) 1, J.E. 2008-689, EYB 2008-131651, 372 N.R. 239, [2008] 5 W.W.R. 195, 429 A.R. 26, 68 R.P.R. (4th) 59, 164 A.C.W.S. (3d) 873; [page116] Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, [1986] S.C.J. No. 52, 31 D.L.R. (4th) 481, 69 N.R. 321, 75 N.S.R. (2d) 109, [1986] R.R.A. 527, 34 B.L.R. 187, 37 C.C.L.T. 117, 42 R.P.R. 161, 1 A.C.W.S. (3d) 294; Dawson v. Rexcraft Storage and Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257, 111 O.A.C. 201, 26 C.P.C. (4th) 1, 20 R.P.R. (3d) 207, 81 A.C.W.S. (3d) 783 (C.A.); Deck International Inc. v. Manufacturers Life Insurance Co., [2012] O.J. No. 2155, 2012 ONCA 309; G. (K.E.) v. R. (G.), 1992 CanLII 4040 (BC SC), [1992] B.C.J. No. 256, 89 D.L.R. (4th) 315, [1992] 3 W.W.R. 393, 64 B.C.L.R. (2d) 275, 10 C.C.L.T. (2d) 32, 31 A.C.W.S. (3d) 1066 (S.C.); King Lofts Toronto I Ltd. v. Emmons, [2014] O.J. No. 1333, 2014 ONCA 215, 40 R.P.R. (5th) 26, affg [2013] O.J. No. 4418, 2013 ONSC 6113, 40 R.P.R. (5th) 1, 234 A.C.W.S. (3d) 747 (S.C.J.); Klimek v. Klos, [2013] O.J. No. 3740 (S.C.J.); Landrie v. Congregation of the Most Holy Redeemer (2014), 120 O.R. (3d) 768, [2014] O.J. No. 3132, 2014 ONSC 4008 (S.C.J.); Leone v. University of Toronto Outing Club, [2006] O.J. No. 4131, 151 A.C.W.S. (3d) 1170 (S.C.J.); Morgan v. Kent, [2008] O.J. No. 972, 165 A.C.W.S. (3d) 739 (S.C.J.); Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31, 151 D.L.R. (4th) 429, 217 N.R. 371, J.E. 97-1825, 103 O.A.C. 161, 46 C.C.L.I. (2d) 147, 12 C.P.C. (4th) 255, 30 M.V.R. (3d) 41, 74 A.C.W.S. (3d) 117; Pizza Pizza Ltd. v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225, [1990] O.J. No. 2011, 45 C.P.C. (2d) 168, 33 C.P.R. (3d) 515 (Gen. Div.); R. (J.) v. Vickery, [2010] O.J. No. 1006, 2010 ONSC 1446, 186 A.C.W.S. (3d) 74 (S.C.J.); Reid v. Crest Support Services (Meadowcrest) Inc., [2013] O.J. No. 4525, 2013 ONSC 6264, 93 E.T.R. (3d) 285, 233 A.C.W.S. (3d) 481 (S.C.J.); S. (C.) v. Nigro, [2010] O.J. No. 2486, 2010 ONSC 3204, 189 A.C.W.S. (3d) 382 (S.C.J.); Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co., [1997] O.J. No. 3754, 1997 CarswellOnt 3496, 74 A.C.W.S. (3d) 207 (C.A.), affg (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1568, 2 O.T.C. 146, 62 A.C.W.S. (3d) 891 (Gen. Div.); Veri v. Mill Creek Motor Freight LP, [2009] O.J. No. 2935 (S.C.J.)

Statutes referred to

Insurance Act, R.S.O. 1990, c. I.8 [as am.]

Limitations Act, 2002, S.O. 2002, c. 24, Sch. B [as am.], ss. 1, 4, 5 [as am.], (1)(a), (2), 7 [as am.], (1), (4) [as am.], 8, 10 [as am.], (3), 15 [as am.] (5) [as am.], 16 [as am.], (1)(h), 24(2) [as am.], (1.1), (1.2), (2.1) [as am.], (6) [as am.]

Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2

Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 20.04(2), (2.1), (2.2)

Authorities referred to

Brown, Raymond E., Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed., vol. 2, looseleaf (Toronto: Carswell, 1994)

Downard, Peter A., Libel, 3rd ed. (Markham, Ont.: LexisNexis, 2014)

Feldthusen, Bruce, "The Civil Action for Sexual Battery: Therapeutic Jurisprudence?" (1993), 25 Ottawa L. Rev. 203

Mew, Graeme, "When Does Time Start to Run? When Does Time Run Out? When Does the Clock Stop Running?" (2004), 28 Adv. Q. 448

Mew, Graeme, and Adrian Lomaga, "Abusive Limits: M. (K.) v. M. (H.) and a Comparison of the Limitation Periods for Sexual Assault" (2009), 35 Adv. Q. 133 [page117]

Mew, Graeme, Debra Rolph and Daniel Zacks, The Law of Limitations, 3rd ed. (Toronto: LexisNexis, 2016)

MOTION by the defendant for summary judgment.

A.C., self-represented.

Chris Kostopoulos and Peter J. Osborne, for defendant.

PERELL J.: —

A. Introduction and Overview

[1] This summary judgment motion raises three issues: (1) Is the plaintiff's sexual assault claim statute-barred under the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B; (2) did the parties settle the plaintiff's claim and, therefore, has her claim been released; and (3) does the plaintiff's slander suit fail for (a) want of evidence or (b) absence of special damages. For the reasons that follow, the answers are (1) no; (2) no; and (3) yes.

[2] More expansively, by way of introduction, the octogenarian defendant, Ronald Joyce, a billionaire, a Canadian business icon, and a philanthropist, moves for a summary judgment dismissing the sexual assault and slander claims of the plaintiff, A.C., a very much younger person with little in the way of financial resources or career successes. Ms. A.C. alleges that while she was his house guest, Mr. Joyce sexually assaulted her on the morning of May 19, 2011. Mr. Joyce, who characterizes Ms. A.C. as a career extortionist and himself as the victim of her gold-digging deceit, vehemently denies that a sexual assault occurred, but submits that if an assault did occur, then Ms. A.C. immediately "discovered" that she had a cause of action against him. Therefore, Mr. Joyce says that because Ms. A.C. waited until May 31, 2013 to issue a notice of action, her sexual assault claim was 12 days too late and it is statute-barred and should be dismissed.

[3] For the reasons set out below, I conclude that Ms. A.C.'s claim is not statute-barred. As I shall explain below, the two-year limitation period for Ms. A.C.'s sexual assault claim did not begin to run until June 21, 2011, and, therefore, her May 31, 2013 notice of action was timely.

[4] I will explain below that my conclusion that Ms. A.C.'s claim is not statute-barred is the same under the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2, which amended the Limitations Act, 2002. The amendments came into effect on March 8, 2016, which was 13 days after the argument of the summary judgment motion. [page118]

[5] Mr. Joyce also submits that if the sexual assault claim is not statute-barred, then Ms. A.C.'s claim was released by a settlement that included a $50,000 payment to Ms. A.C. He says that the settlement was negotiated directly between himself and Ms. A.C. between November 2011 and January 2012. For her part, although she did receive $50,000 from Mr. Joyce, Ms. A.C. denies any settlement.

[6] For the reasons set out below, I conclude that there was no settlement, and, therefore, Ms. A.C.'s sexual assault claim has not been released. There was no settlement because there was no meeting of the minds about the terms of a settlement.

[7] Mr. Joyce also moves to have Ms. A.C.'s slander action dismissed. He submits that the slander claim should be dismissed because (a) it wants for proof and (b) the constituent element of special damages is missing.

[8] As explained below, I conclude that Ms. A.C.'s slander action should be dismissed precisely for those reasons.

[9] I, therefore, grant Mr. Joyce's summary judgment motion in part, and I dismiss the slander claim. I dismiss the balance of Mr. Joyce's summary motion. I order costs in the cause with respect to the partially successful and partially unsuccessful summary judgment motion.

B. Procedural and Evidentiary Background

[10] This action was commenced by notice of action on May 31, 2013. At that time, Ms. A.C. was represented by Clayton Ruby and Brian Shiller of Ruby, Shiller, Chan, Hasan Barristers.

[11] Mr. Joyce delivered a motice of intent to defend and was represented by Chris Kostopoulos of Zaduck and Kostopoulos and Peter J. Osborne of Lenczner Slaght Royce Smith Griffin LLP.

[12] In the summer of 2013, there were settlement discussions, including the without prejudice drafting of an apology. This effort did not resolve matters and rather seems to have heightened the antagonism.

[13] The pleadings were completed by December 5, 2013.

[14] After the delivery of the statement of defence, the action became inactive for about a year and a half, and during its dormancy, Ms. A.C.'s attention was focused on unsuccessfully requesting the Halton Regional Police to investigate and lay criminal charges against Mr. Joyce, which they declined to do.

[15] The action remained dormant until March 3, 2015, when Ms. A.C. delivered a notice of change of lawyer appointing Leonard Hochberg as her lawyer of record. Mr. Hochberg had experience in acting in high-profile sexual assault prosecutions. [page119]

[16] In response to the revival of the action and the plans to schedule examinations for discovery, on June 2015, Mr. Joyce responded with this motion for summary judgment.

[17] Mr. Hochberg subsequently removed himself from the record, and Ms. A.C. became a self-represented litigant.

[18] Mr. Joyce's summary judgment motion was supported by (1) his own affidavit sworn June 11, 2015; (2) the affidavit of Douglas Burns, who is Mr. Joyce's lawyer, sworn on June 16, 2015; and (3) the affidavit of Hunter Milborne, who is a real estate agent and developer who employed Ms. A.C. both as an employee and as a consultant; Mr. Milborne swore his affidavit on July 16, 2015.

[19] Ms. A.C. resisted the motion with three affidavits of her own sworn on September 18, September 27 and October 1, 2015 respectively.

[20] Mr. Burns was cross-examined on October 15, 2015. Mr. Milborne was cross-examined on October 16, 2015. Mr. Joyce was cross-examined on October 20, 2015 and December 15, 2015. Ms. A.C. was cross-examined on December 16, 2015. The deliverable was two bankers boxes of motion material.

[21] While some of the motion record will be relevant at trial, an enormous amount of the material was irrelevant or inadmissible or both irrelevant and inadmissible for the purposes of deciding this summary judgment motion. An enormous amount of irrelevant evidence was hypocritical, intemperate and rude. An enormous amount of evidence had no purpose other than character assassination of the witnesses and of the friends and family of Mr. Joyce and Ms. A.C. Much of the evidence is defamatory or, if not defamatory because it is true, then the evidence is proof of serious criminal activity including extortion, fraud, drug trafficking, obstruction of justice and perjury, but much, if not all, of this defamatory or incriminating evidence was irrelevant to the issues of whether there was a slander, a settlement or a statute-barred sexual assault claim.

[22] Much of Ms. A.C.'s testimony was not evidence but rather was (1) extensive argument about why Mr. Joyce's, Mr. Burn's and Mr. Milborne's evidence were perjury and fabrications; or (2) a polemic about the failures of the administration of justice, particularly the criminal justice system, in dealing with sexual assault offences. The polemic was supported by an enormous amount of irrelevant evidence about Ms. A.C.'s efforts to encourage the Halton Regional Police to conduct an investigation and to lay criminal charges against Mr. Joyce and about how Ms. A.C.'s treatment by the police department led to a Freedom of Information request, disclosure and Ms. A.C.'s allegations of police corruption. [page120]

[23] Ms. A.C., probably because she was self-represented and did not know any better, proffered a great deal of evidence for which she might well have asserted privilege on the several grounds that the communications were (1) solicitor-client communications; (2) litigation privilege; and/or (3) settlement communications. Because most of these privileged communications were introduced by Ms. A.C., I have assumed or accepted that she has waived her privilege. But as will be seen below, Ms. A.C. also refused to produce some of her communications with her lawyers, and Mr. Joyce asks that an adverse inference be drawn from this failure.

[24] For the purposes of deciding this summary judgment motion, I do not need to decide the truth of the many defamatory or incriminatory allegations. An enormous amount of the evidence was hearsay or inadmissible as oath-helping or as inadmissible collateral evidence. An enormous amount of evidence was disputes about trivialities like whether Mr. Joyce and Ms. A.C. went out to a restaurant or had dinner at his home in Burlington. Much of the evidence was inflammatory and designed to enrage the court or the media since both sides are intent on winning a public relations war.

[25] For the purposes of deciding the three issues that are actually before me to decide, I need not make findings of fact about the trivialities, irrelevancies and most of the inflammatory evidence. If I had to decide the credibility of Mr. Burns and Mr. Milborne, and the truth of various collateral issues, I would have dismissed this summary judgment motion and ordered the matter to go to trial.

[26] Having reviewed all the evidence and focusing only on the three issues that are to be determined, I can say that I do not need to make any decision about the credibility of any of the witnesses apart from Ms. A.C. and Mr. Joyce. As my findings of fact below will reveal, for both Mr. Joyce and Ms. A.C., I believe some of their evidence and I disbelieve some of their evidence. I do not conclude that Mr. Joyce or Ms. A.C. were lying to the court; rather, my disbelief is based on their mutually skewered perceptions of the events and because of the unreliable, irrational and emotionally distorted nature of their accounts of those events.

C. Factual Background

1. The parties

[27] As the discussion below will reveal, while I shall describe an interpersonal history between Mr. Joyce and Ms. A.C. that [page121] has lasted for a decade, for the purposes of deciding the three issues that I must decide, the critical findings of fact focus on two relatively short periods of time. First, the summary judgment motion requires an examination of the one-month period between May 19, 2011, when the alleged sexual assault occurred, and June 21, 2011, when Ms. A.C. instructed her lawyers to write a demand letter to Mr. Joyce. Second, the summary judgment motion requires an examination of the two-month period from mid-November 2011 to mid-January 2012, when Ms. A.C. deposited an almost $50,000 cheque that Mr. Joyce says was confirmation of a settlement of the sexual assault claim.

[28] Mr. Joyce is now in his 80s. He has had a fabulously successful business career, including being one of the founders of the well-known Tim Hortons franchise, a coffee and donut shop that grew into a multi-billion-dollar enterprise. He is a billionaire. He has been honoured as a philanthropist and for his entrepreneurial success. He is a member of the Order of Canada. He has seven children from two marriages. He has grandchildren. He has been divorced and single for approximately 30 years.

[29] Ms. A.C. is now in her mid-30s. She is younger than all of Mr. Joyce's children and younger than some of his grandchildren. She is articulate and intelligent. She is a physically attractive woman, but now believes that the trauma caused by the sexual assault and by this litigation has contributed to the loss of what was a model's figure and a youthful and happy demeanour.

[30] Approximately ten years ago, Mr. Joyce met Ms. A.C. She had experience as a mortgage broker or as a real estate agent in high-end real estate. They fashioned a non-exclusive dating relationship. They did not live together. Ms. A.C. was independent and not financially supported by Mr. Joyce in any way. She has never been his dependent. They went to social events together, they were occasionally travel companions, and from time to time, they engaged in recreational sex. The sexual aspect of their relationship ended by May 2010, and they remained friends and relatively frequent social companions.

[31] Ms. A.C. says that before, after and during the sexual phase of their relationship, Mr. Joyce proposed marriage. Mr. Joyce denies that he ever had plans to marry Ms. A.C., and he says that he frankly told her that having regard to their 50-year age difference and the fact that he had been married twice before and he had a grown family, he was not interested in anything other than a relationship without commitments. He suggests that it was Ms. A.C. who was pursuing matrimony. [page122] She says that these are bald-faced lies and that it was Mr. Joyce who was persistently pursuing her and proposing marriage.

[32] Apart from concluding that both Mr. Joyce and Ms. A.C. are vulpine and cunning, for the purposes of deciding this summary judgment motion, I need not decide who was the hunter or who was the fox.

2. Hunter Milborne

[33] As part of the character assassination of Ms. A.C. and as an aspect of making the argument that the limitation period for Ms. A.C.'s sexual assault claim began to run immediately on the date of the alleged incident, Mr. Joyce proffered the evidence of Hunter Milborne. The apparent purpose of this evidence was to discredit Ms. A.C. and portray her as an extortionist who happened to understand the ways around limitation periods.

[34] Mr. Milborne is the chief executive officer of Milborne Real Estate Inc. He is a very wealthy entrepreneur, although not remotely in the same league of Mr. Joyce. Formerly, Mr. Milborne was a principal and director of Sotheby's International Realty Canada, where Ms. A.C. was employed for about a year. He had an extra-matrimonial affair with Ms. A.C., after which he maintained a business connection with her.

[35] Mr. Milborne's affidavit and his cross-examination testimony and Ms. A.C.'s responding affidavit testimony and cross-examination offer very different accounts of what Mr. Milborne depicts as extortion by Ms. A.C. and what she depicts as the settlement of her wrongful dismissal claim against Sotheby's. Ms. A.C. accuses Mr. Milborne of perjury, obstruction of justice and interference with her attempts to have criminal charges proceed against Mr. Joyce.

[36] Whether Ms. A.C. criminally extorted money from Mr. Milborne and his corporations using the leverage of exposing his extramarital activities or exposing alleged sexual harassment activities and the alleged incompetence of Mr. Milborne's business partners at Sotheby's or whether he is a perjurer and obstructer of justice, are matters I need not decide for the purposes of this summary judgment motion.

[37] If it is true that Ms. A.C. is a pathological extortionist as apparently Mr. Joyce and Mr. Milborne would have it, this does not assist me in determining whether the limitation period for her sexual assault claim began to run on May 19, 2011 or whether Mr. Joyce and Ms. A.C. reached a settlement in November 2011--January 2012. [page123]

3. 2006-2011

[38] For the purposes of this summary judgment motion, there is only one matter from the period between 2006, when Mr. Joyce's and Ms. A.C.'s relationship began, and May 19, 2011, when the alleged sexual assault occurred, that I need to mention.

[39] On September 9, 2009, Mr. Joyce wrote a $100,000 cheque and loaned the money to Ms. A.C. The loan was evidenced by a promissory note.

[40] Over the course of their friendship, an additional $50,000 was lent to Ms. A.C., presumably in cash, since there is no evidence or written record of the loan. These loans were never repaid.

[41] Ms. A.C. does not deny that loans were made and not repaid, but she says that the loans were forgiven during the course of their relationship, and she relies on a tape recording of a conversation in which Mr. Joyce apparently admits the forgiveness of the loans. As will be seen, Mr. Joyce's evidence is different; he says that the loans were only released as a part of the alleged settlement that occurred in November 2011--January 2012.

4. The alleged sexual assault

[42] Moving to the circumstances of the alleged sexual assault, around May 18, 2011, Ms. A.C., who lives in Toronto, went to Mr. Joyce's home in Burlington because she had promised to drive him early the next day to Barrie, Ontario for an important doctor's appointment.

[43] During the evening of May 18, they slept in separate rooms.

[44] Their evidence concords and they agree that the next morning, Mr. Joyce entered her bedroom to wake her for the trip to Barrie. They disagree, however, about what then happened. She says that she was awakened by being sexually molested by him. There was no sexual intercourse, but she says that she awoke to Mr. Joyce's sexual touching; masturbation would be the politest way to describe it, but for present purposes, the details of the assault are not necessary to describe.

[45] Mr. Joyce's version of what happened is different, and he denies any sexual assault. He says that Ms. A.C. was notoriously difficult to wake, and while he admits that he did touch her, he denies any sexual component to his rousing her from her slumbers. [page124]

[46] Ms. A.C. and Mr. Joyce do agree that after the incident in the bed, that Ms. A.C. punched Mr. Joyce, and that they argued. They agree that Mr. Joyce left to drive himself to Barrie and that he did not wait for Ms. A.C. to complete her shower, dress for the trip and drive the car.

[47] Further, they agree that while he was on route, Ms. A.C. phoned him. Unknown to Mr. Joyce, Ms. A.C. recorded the 20-minute conversation that took place as he drove to Barrie.

[48] For present purposes, it is unnecessary to describe what was said during the cellphone call apart from noting that Ms. A.C. spoke of being assaulted and about their having had an argument. It will be for another day for a judge to determine whether Mr. Joyce admitted the sexual assault or whether he was just placating Ms. A.C., who apparently was angry not only about being assaulted but about not accompanying Mr. Joyce to Barrie and about having to make arrangements to get back to Toronto.

[49] For present purposes, I do decide that Ms. A.C. was subjectively aware that she had been the victim of what she believed to be a sexual battery. Mr. Joyce submits that I shall also find that the cunning Ms. A.C. was immediately engaged in gathering evidence to prosecute a sexual assault claim against him. My review of the transcript of the conversation, however, does not lead me to the finding that Ms. A.C. was that cunning. I simply conclude that Ms. A.C. subjectively knew that she had been sexually assaulted and that she was angry but not yet plotting revenge, vindication or litigation.

[50] For present purposes, it is necessary to note that Ms. A.C. had a practice of surreptitiously recording her conversations with Mr. Joyce, as evidenced by the transcript of this conversation between them as he drove to Barrie and by several recordings that I shall mention below.

[51] Some of these recordings of conversations have been preserved; however, some significant recordings have gone missing, with explanations that for present purposes I need not recount or about which I need not make findings of fact. I simply foreshadow that this phenomenon of missing recordings and missing evidence is fertile ground for adverse inferences, which I have kept in mind, in making my findings of fact below. As will be seen, the adverse inferences would not change my findings that Ms. A.C.'s sexual assault claim is not statute-barred or released by a settlement.

5. May 2011--December 2011 and the alleged settlement

[52] Returning to the narrative, after her phone conversation with Mr. Joyce, Ms. A.C. contacted her mother to come and bring [page125] her back to Toronto from Mr. Joyce's home. Before they returned to Toronto, they stopped for a coffee at a Starbucks at a mall in Burlington. Ms. A.C. says that while at the coffee shop, her mother spoke to a female police officer about the sexual assault and the officer recommended that because there was no physical evidence (since Ms. A.C. had showered after the alleged molestation), criminal proceedings would be futile. Ms. A.C.'s mother persuaded Ms. A.C. to just return to Toronto.

[53] What happened at Starbucks confirms my conclusion that as of May 19, 2011, Ms. A.C. was subjectively aware that she had been sexually assaulted. I also find that as of May 19, 2011, the idea of bringing criminal proceedings against Mr. Joyce was in the mind of Ms. A.C.

[54] I find as a fact that shortly after May 19, 2011, the idea of civil proceedings presented itself to the mind of Ms. A.C. Her father recommended that she obtain legal advice. She or her father made arrangements for her to hire a lawyer. On May 27, 2011 and again on May 30, 2011, Ms. A.C. phoned the law offices of Dickinson Wright LLP to make an appointment for legal advice. She admits that she was seeking advice about what she believed was a sexual assault on May 19, 2011.

[55] On June 21, 2011, Ms. A.C. met with lawyers Michael Miller and Elisa Giacomelli of Dickinson Wright LLP. On June 21, 2011, I find as a fact that she gave them instructions to advance a sexual assault claim against Mr. Joyce.

[56] I pause here to note that Ms. A.C.'s argument that her sexual assault claim is not statute-barred is based on June 21, 2011 being the commencement date for the running of the limitation period. Ms. A.C.'s evidence and argument on this point is set out, in para. 36 of her affidavit of September 26, 2015, where she states:

36. My Dad suggested I talk to a lawyer. He set up a meeting. On June 21st, 2011, my Mom, Dad and I met with Michael Miller of Dickinson Wright LLP to discuss if I had a claim against the Defendant for sexual assault. He explained that I had a case. In his opinion it was not a very strong one, but nevertheless he was willing to represent me. This meeting was an exceptionally degrading experience. On May 19th, 2011, the police had told my Mom that nothing would happen without proof, therefore, I cannot be expected to have recognized the wrongness of what had happened to me. It wasn't until this meeting with Michael Miller that I recognized I had any recourse, which puts me within the two year limitation to bring a claim against the Defendant.

I shall return to discuss the merits of Ms. A.C.'s submission about the running of limitation period in the discussion and analysis below. [page126]

[57] Following the instructions, Mr. Miller drafted a statement of claim, but he did not issue it. Instead, he wrote Mr. Joyce and enclosed a copy of the pleading. The draft statement of claim pleads a sexual assault claim occurring on May 19, 2011 and claims damages of $1 million plus aggravated damages of $500,000 and punitive damages of $100,000. Mr. Miller's letter states that if Mr. Joyce does not respond within seven days, the claim will be issued. The letter indicates, however, that Ms. A.C. wished to meet with Mr. Joyce and his lawyer to discuss resolving the matter amicably.

[58] After receipt of the letter, Mr. Joyce instructed his lawyer, Douglas Burns, to contact Mr. Miller to make a settlement offer without any admission of liability. The offer was a forgiveness of the loans that Mr. Joyce had made to Ms. A.C. plus a cash payment of $25,000. Mr. Burns made the offer through communications to Mr. Miller, but the settlement offer was unacceptable to Ms. A.C.

[59] After Mr. Joyce learned that his settlement offer had been rejected, he instructed Mr. Burns to commence an action against Ms. A.C. for repayment of the $150,000 of loans, which Mr. Burns did on August 23, 2011 in Hamilton. Mr. Burns then wrote to Mr. Miller and inquired whether he would obtain instructions to accept service of Mr. Joyce's statement of claim. Mr. Miller replied that he would be meeting with Ms. A.C. and would respond in due course.

[60] What then transpired is that Mr. Joyce and Ms. A.C. began communicating directly -- without their lawyers in attendance. There were meetings in the summer and the fall of 2011.

[61] During this period, Ms. A.C. deposed that Mr. Joyce made settlement offers that she declined. She denies that she was in desperate need of money during this period as alleged by Mr. Joyce, but says that she was experiencing significant emotional stress around this time because her boyfriend was being hospitalized because of a mental breakdown brought about because Ms. A.C.'s situation revived the boyfriend's own suppressed memories of having been sexually molested by his family members. It seems that Ms. A.C.'s reaction to the incident on May 31, 2011 was traumatizing her boyfriend.

[62] In any event, there were frequent direct communications between Ms. A.C. and Mr. Joyce in the fall of 2011. Ms. A.C.'s phone records indicate that they spoke on November 14, 19, 20, 24 and 25. They also had a two-hour meeting at his home in Burlington on November 25, 2011. [page127]

[63] Ms. Joyce has not been able to find her recordings of all these communications. I find as a fact that the subject matter in all these communications was the settlement of Ms. A.C.'s unissued sexual assault claim.

[64] It was Mr. Joyce's testimony that he and Ms. A.C. reached a full and final settlement of this matter by November 21, 2011 or somewhat later in November or December 2011. He says that they agreed that Ms. A.C. would not issue her statement of claim and, in return, she would receive $50,000 to be paid to her counsel as a contribution to her legal expenses and she would be forgiven of his $150,000 loan claim. Thus, he says the quid pro quo of the settlement was that Ms. A.C. would not issue her draft statement of claim and in return she would receive consideration with a value of $200,000.

[65] Ms. A.C. denies that there was any settlement by November 21, 2011 or at any time. She says the loans had already been forgiven and that the $50,000 was a partial payment of her claim to be used for her legal fees and to obtain therapy. She says that she was too harried and stressed out by the circumstances of her boyfriend's breakdown to deal with a complete settlement of her claims against Mr. Joyce.

[66] As I shall explain below, I find as a fact that there was no settlement, but in order to understand those reasons, it is necessary to complete the history of what happened -- and what did not happen -- after the numerous direct conversations between Ms. A.C. and Mr. Joyce in the fall of 2011.

6. The implementation of the alleged settlement

[67] On November 22, 2011, Mr. Joyce advised Mr. Burns that he and Ms. A.C. had settled, and the following day, Mr. Burns faxed a letter to Mr. Miller. The letter of November 23, 2011 stated in its entirety:

I have been advised that our respective clients have met and settled their differences. Under the circumstances I would propose to close my file. As I have not had the courtesy of a response from you to my earlier telephone messages or my correspondence, I anticipate that you may have closed your file as well.

[68] After Mr. Burns' November 23, 2011 letter to Mr. Miller, there were no more communications between Mr. Joyce's lawyers and Ms. A.C.'s lawyers.

[69] Meanwhile, on November 24 and November 25, 2011, the conversations between Mr. Joyce and Ms. A.C. were continuing and, simultaneously, Ms. A.C. was conferring by telephone with Ms. Giacomelli. [page128]

[70] On November 25, 2011, Mr. Joyce requested that a $50,000 cheque made payable to Mike Miller and drawn on the account of Jetport Inc., one of Mr. Joyce's companies, be prepared. Mr. Joyce's handwritten note requesting the cheque read:

Mike Miller

c/o Dickinson & Wright

222 Bay Street

P.O. 124

Toronto M5K 1H1

RE: A.C.

PAID IN FULL 50,000.

[71] The memo on the cheque is inscribed: "A.C., PAID IN FULL." The cheque stub retained by Jetport Inc. is inscribed: "Re: A.C. Account paid in full." The cheque stub for the November 25, 2011 cheque refers to an invoice dated November 26, 2011.

[72] Mr. Joyce mailed the cheque to Mr. Miller. Mr. Burns was not involved, and there was no covering letter. I believe that Mr. Joyce intentionally did not wish Mr. Burns to be involved in settling the dispute with Ms. A.C.

[73] The Jetport Inc. cheque was received by Dickinson Wright LLP, and on December 9, 2011, Mr. Miller sent an e-mail to Ms. A.C. advising her that his firm had received the cheque and requesting that she provide instructions.

[74] On December 19, 2011, the Jetport Inc. cheque was deposited to the credit of Dickinson Wright LLP's trust account, and around January 6, 2012, the funds were withdrawn from the law firm's account and Ms. A.C.'s mother picked up a cheque for $49,478.87, which Ms. A.C. deposited in her own CIBC bank account.

[75] Ms. A.C. testified that during this time, she spoke to either Ms. Giacomelli or to Patricia Tupper, Mr. Miller's assistant, about the receipt of the cheque, but she refused to waive solicitor and client privilege to disclose what was discussed.

[76] I do not know what was discussed between Ms. A.C. and her lawyers, but my suspicion is that her lawyers were professionally responsible and that they told her that it was very foolish to proceed in this informal way and that no good would come of just cashing the cheque.

[77] I am prepared to draw and do draw the adverse inference that Ms. A.C.'s lawyers advised her that accepting the $50,000 could be taken as proof that there was a settlement of her sexual assault claim. I am prepared to draw and do draw the adverse [page129] inference that they told her that the proper and professional way to settle such a claim would involve minutes of settlement, mutual releases and a confidentiality agreement. I am prepared to draw and do draw the adverse inference that she nevertheless instructed them to close their file and to not respond to Mr. Burns' letter.

[78] Thus, Mr. Joyce submits that without the assistance of Mr. Burns, he had settled Ms. A.C.'s sexual assault claim. He is mistaken.

[79] I believe the truth to be that both Mr. Joyce and Ms. A.C. were attempting to play tricks on one another by the manner in which they were orchestrating the payment of $50,000, including their assiduousness in keeping the lawyers "out of it", virtually from the time that Mr. Miller wrote his July 2011 demand letter until Ms. A.C. deposited almost $50,000 in her CIBC bank account.

[80] Mr. Joyce's trick was to create a hoax settlement because he knew that if he pressed for a real settlement -- with minutes of settlement, mutual releases, a confidentiality agreement, the voiding of the promissory note and the formal dismissal of his $150,000 action already commenced in Hamilton, then Ms. A.C. would deny any settlement had been reached. Mr. Joyce believed, however, that he could trick Ms. A.C. into appearing to have settled the claim, precisely because she would not wish to formalize any settlement at $50,000, which would not be rich enough for her and which settlement would sink Ms. A.C.'s plans to advance her own career prospects with future business dealings with Mr. Joyce or perhaps her unrealized ambitions of becoming Mr. Joyce's spouse or his well-paid personal assistant.

[81] Ms. A.C.'s trick was to deceive Mr. Joyce into thinking he had settled the sexual assault claim, which would allow her to resume her business or personal courting of Mr. Joyce with the hedge of a fallback sexual assault claim. I believe that she knew that Mr. Joyce's failure to insist on releases and a confidentiality agreement was his Achilles heel that would allow her to argue that there was only a partial settlement or no settlement at all.

[82] Mr. Joyce argues that I should draw an adverse inference that there was a settlement from Ms. A.C.'s failure to disclose her communications with her lawyers, particularly because in her first affidavit delivered in response to his summary judgment motion, she makes the scandalous and without any supporting evidence allegation that Mr. Miller and Mr. Burns had fabricated the settlement. Further, Mr. Joyce argues for more adverse inferences because of Ms. A.C.'s failure to produce [page130] recordings of all the conversations she had with him, particularly in November--December 2011, when the $50,000 payment to settle her claim was discussed.

[83] I agree that adverse inferences should be drawn, but those adverse inferences do not change my conclusion that both Mr. Joyce and Ms. A.C. were playing games and attempting to trick the other. It is absurd to submit, as submitted during argument, that this settlement of a million dollar claim against a billionaire entrepreneur was business as usual for Mr. Joyce, where his handshake and "my word is as good as my bond" approach would be adequate to settle a claim.

[84] I make no finding whatsoever whether the sexual assault actually occurred, but whether it did or it did not, it was irresponsible and indeed reprehensible for Mr. Joyce to think that memorializing a cheque with "A.C., PAID IN FULL" would discharge her sexual assault claim, as if it and she were an invoice for goods and services delivered.

[85] And there is no adverse inference that would change my conclusion that there was no settlement between Mr. Joyce and Ms. A.C. There is no getting around the legal fact that a contract requires a meeting of minds. Oral contracts are possible, but they are obviously more difficult to prove than contracts in writing where the terms of the contract are set out so that an objective observer might determine what the agreement was. In the immediate case, "A.C., PAID IN FULL" does not prove a settlement.

[86] It is not necessary to discuss the trite law about contract formation. I find as a fact that there was no settlement. This finding creates an issue estoppel. I dismiss the branch of Mr. Joyce's summary judgment motion that relies on the argument that Ms. A.C.'s claim was discharged by a settlement.

[87] If requested, I would grant a partial summary judgment to Ms. A.C. dismissing Mr. Joyce's settlement defence. The court does not require a cross-motion for summary judgment when it can decide the issue that is the subject matter of the motion for summary judgment: King Lofts Toronto I Ltd. v. Emmons, [2014] O.J. No. 1333, 2014 ONCA 215, affg [2013] O.J. No. 4418, 2013 ONSC 6113 (S.C.J.).

7. After the alleged settlement

[88] Returning to the narrative, after the receipt of the $50,000, no steps were taken to issue the statement of claim for sexual assault. After Ms. A.C. deposited the almost $50,000 cheque, the platonic relationship between Mr. Joyce and Ms. A.C. resumed.

[89] A 17-month interlude followed Ms. A.C.'s depositing the money into her own account and the commencement of this [page131] action on May 31, 2013. There are several incidents during this period to note and it is during this period that the alleged slander occurred. The slander claim is based on two incidents.

[90] The first incident occurred in January 2013, when Ms. A.C. had dinner with Mr. Joyce and Brian Robbins. Ms. A.C. says that during the dinner, Mr. Robbins professed surprise at being invited to dine with them because he had been told that she had falsely accused Mr. Joyce of having sexually assaulted her. From this comment, Ms. A.C. surmises that Mr. Joyce must have told Mr. Robbins that he had been falsely accused of sexual assault. This comment is pleaded to be a slander.

[91] The second incident occurred sometime in 2013, when Ms. A.C. and Mr. Joyce had drinks with a gentleman named "Howard", a restaurant owner from Barbados. Ms. A.C. does not know his last name. Ms. A.C. says that when she left to use the restroom, she heard Mr. Joyce tell Howard that he should be wary of Ms. A.C. because she was crazy and had falsely accused him of sexual assault.

[92] Although Mr. Joyce admits that he has told his lawyers and others that he has been falsely accused of sexually assaulting Ms. A.C., he denies that his denial of wrongdoing is slanderous, and he denies making any comments to Mr. Robbins or to Howard from the Barbados, neither of whom were summonsed to give evidence on this summary judgment motion.

[93] I do not believe Ms. A.C. about these two incidents. Assuming, however, that the comments were made as alleged, I find as a fact that there is no evidence that they caused any harm or any special damages to Ms. A.C.

[94] Returning again to the narrative, on April 4, 2013, Ms. A.C. attended a meeting at Mr. Joyce's office in Burlington. Ms. A.C. had initiated the meeting by inviting Mr. Joyce to invest in a real estate project. If Mr. Joyce had agreed, then Ms. A.C. would have earned a very substantial finder's fee. She came to the meeting in Burlington with Mr. Milborne and Greg Marchant, who were promoting the project. Mr. Joyce did not attend the meeting but was represented by Steven Joyce, Grant Joyce, David Wagstaff and Tim Armstrong. Mr. Joyce subsequently decided not to invest in the project.

[95] On April 11, 2012, Mr. Joyce's action in Hamilton to recover the $150,000 in loans was administratively dismissed by the court registrar. It is risible, but Mr. Joyce relies on the registrar's action as part of the implementation of his alleged settlement with Ms. A.C.

[96] On May 14, 2013, Ms. A.C. met with Mr. Joyce at his home in Burlington. Again, she surreptitiously recorded the [page132] conversation, which includes discussions about whether Mr. Joyce should hire her as a personal assistant or whether he should marry her. There were discussions about what happened on May 19, 2011. Then, they go out for dinner, and at the end of the evening as they say goodbye, they profess love for one another.

[97] On May 17, 2013, Ms. A.C. has a meeting with Mr. Burns, where, yet again, she makes a surreptitious recording of the discussions. During the meeting, Ms. A.C. attempts to have a discussion about the events of May 19, 2011 and the settlement with Mr. Joyce. Mr. Burns points out that she would have received a reporting letter from Mr. Miller. Ms. A.C. is recorded as saying:

It's a long story but anyway. Um, and I called Ron 'cause I was just, I was freaking out and I just didn't wanna fight about it. I just didn't want another thing on my plate. I was having a complete meltdown with my boyfriend in the hospital. So I called him and I just said, I don't wanna fight about this anymore. I said, I don't understand why you do this. I'd love to sit down and talk to you about it but, I just don't wanna -- like I can't fight with you right now. And so while we were talking I said I expect you to cover my lawyer fees and some therapy. And so he just -- I said, like send them $50,000 or whatever, and he said, fine. And -- but my attitude is he, he still can't take responsibility for what he's done and I'm kind of at the point where, I don't know I'm just, I'm really angry.

[98] Mr. Burns asks her about the $50,000 and the transcript reveals the following exchange:

BURNS: So then, at some point you get a personal cheque from Ron to reimburse you.

A.C.: Yeah.

BURNS: And what did you do with Miller?

A.C.: Nothing.

BURNS: You didn't call him up and say it's resolved?

A.C.: Oh no, no, I just said, I said we're -- I'm just, I'm dropping it for now and just I, I can't go through this right now and my boyfriend's in the hospital. I can't, I can't do this. So, he was like okay.

[99] On May 21, 2013, Ms. A.C. gives instructions to her new lawyers Clayton Ruby and Brian Shiller to commence an action for sexual assault and slander against Mr. Joyce.

[100] Acting on her instructions, the lawyers prepared a notice of action for the sexual assault claim. The notice of action, which was issued on May 31, 2013 pleads, however, that the sexual assault occurred in June 2011.

[101] I conclude that this misdating of the events was a feeble and stupid effort by Ms. A.C. to avoid problems about the possible passing of the limitation period for the sexual assault claim. [page133]

[102] On June 28, 2013, Ms. A.C. delivered her statement of claim which is essentially the same as the statement of claim drafted by Mr. Miller with one exception being that the sexual assault is described as occurring in June 2011 and not May 2011. Another exception is the inflation of the claim for damages, which is now $3 million for assault and battery; aggravated damages of $3 million for assault and battery; and damages for slander of $1.5 million, plus an unspecified amount for punitive damages.

[103] On July 12, 2013, Mr. Joyce delivered a notice of intent to defend and his statement of defence was delivered on December 5, 2013. In his pleading, he pleads the settlement and the limitation period defence. In his statement of defence, Mr. Joyce pleads that Ms. A.C.'s claim is extortion, motivated by his refusal to marry her. In paras. 46 to 48, he pleads:

46. The Defendant states that the within action is not intended to vindicate any wrong or harm perpetrated on the Plaintiff's person, but rather is a blatant attempt to extort money from the Defendant (the "Plaintiff's Scheme"). The Defendant pleads that the Plaintiff is motivated either by the Defendant's refusal to enter into a more permanent relationship with the Plaintiff, or the opportunity which the Defendant's personal wealth presents given her ongoing financial difficulties, or both.

47. At all times since the incident, the Plaintiff's efforts have been focused on extracting a large monetary settlement from the Defendant with the expectation that he would want to avoid having the allegations made public given his status in the community. The fact that the Plaintiff had already entered into the Settlement with the Defendant and is now attempting to claim further damages is consistent with and in fact demonstrates the Plaintiff s Scheme.

48. As pleaded hereinabove at paragraph 28, the Plaintiff had initially threatened to commence an action in or about July, 2011. Though an action was not initiated, the Plaintiff had her lawyer, Mr. Miller, forward to the Defendant a draft Statement of Claim with the threat that if he did not meet with the Plaintiff and her lawyer to resolve the allegations "amicably" the claim would be issued against him. The Defendant states, and the fact is, that he found it highly unusual that he would be forwarded a draft Statement of Claim with the threat that if he did not meet with the Plaintiff and her lawyer to resolve the allegations "amicably" the claim would be issued against him. The Defendant states that the use of this unusual tactic further demonstrates the Plaintiff's Scheme. The Plaintiff was attempting simply to profit from an allegation of sexual assault which is completely unsupported by any evidence and as stated hereinabove at paragraph 31, the Plaintiff did in fact profit to the extent of at least $200,000.00. The Plaintiff is now attempting to obtain from the Defendant a further and larger payment some two years after the original Settlement.

[104] As noted above, there were settlement negotiations during the summer of 2013, and discussions about whether an apology would satisfy Ms. A.C. These discussions, if anything, infuriated Ms. A.C. and intensified her pursuit of some combination of compensation for having been assaulted, revenge, vindication and [page134] championing the cause of victims of sexual assault and reforms to the administration of justice.

[105] The outcome of the settlement discussions was that she rejected the recommendation of her lawyers to accept a million-dollar settlement offer from Mr. Joyce.

[106] Normally such an offer would not be shown to the court on the grounds of settlement privilege just as her lawyer's opinion letter would not normally be disclosed to the court on the grounds of solicitor and client privilege. It seems, both parties, wanted the offer and the rejection of it before the court as relevant evidence for the issues to be decided on this summary judgment motion.

[107] With the failure of the settlement negotiations, Mr. Joyce delivered his defence and a second theatre of war, in the court of public opinion, erupted.

[108] Mr. Joyce brought his summary judgment motion and delivery of the motion record ramped up the hostilities and the reciprocal hatred of the parties.

D. Discussion and Analysis

1. The court's summary judgment jurisdiction

[109] Mr. Joyce submitted that the case was suitable for a summary judgment. The self-represented Ms. A.C. made no submissions as to the suitability of the action for a summary judgment motion.

[110] I conclude that in accordance with the court's jurisdiction under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that the case is suitable for a partial summary judgment dismissing the slander claim and two of Mr. Joyce's defences.

[111] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if "the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence".

[112] With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:

20.04(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence. [page135]

[113] In Hryniak v. Mauldin, [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, [2014] 1 S.C.R. 126, [2014] S.C.J. No. 8, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers enacted when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[114] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rule 20.04(2.1) and (2.2). As a matter of discretion, the motion judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[115] At para. 22 of her judgment in the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, supra, Karakatsanis J. summarized the approach to determining when a summary judgment may or may not be granted; she stated:

Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.

[116] Justice Corbett provided a useful summary of the Hryniak v. Mauldin approach in Sweda Farms Ltd. v. Egg Farmers of Ontario, [2014] O.J. No. 851, 2014 ONSC 1200 (S.C.J.), where he stated, at paras. 33 and 34:

As I read Hryniak, the court on a motion for summary judgment should undertake the following analysis:

(1) The court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial; [page136]

(2) On the basis of this record, the court decides whether it can make the necessary findings of fact, apply the law to the facts, and thereby achieve a fair and just adjudication of the case on the merits;

(3) If the court cannot grant judgment on the motion, the court should:

(a) Decide those issues that can be decided in accordance with the principles described in (2), above;

(b) Identify the additional steps that will be required to complete the record to enable the court to decide any remaining issues;

(c) In the absence of compelling reasons to the contrary, the court should seize itself of the further steps required to bring the matter to a conclusion.

The Supreme Court is clear in rejecting the traditional trial as the measure of when a judge may obtain a "full appreciation" of a case necessary to grant judgment. Obviously greater procedural rigour should bring with it a greater immersion in a case, and consequently a more profound understanding of it. But the test is now whether the court's appreciation of the case is sufficient to rule on the merits fairly and justly without a trial, rather than the formal trial being the yardstick by which the requirements of fairness and justice are measured.

[117] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240, 164 D.L.R. (4th) 257 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481, [1994] O.J. No. 1214 (C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372, [2008] S.C.J. No. 14, at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 1990 CanLII 4023 (ON SC), 75 O.R. (2d) 225, [1990] O.J. No. 2011 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423, [1996] O.J. No. 1568 (Gen. Div.), affd [1997] O.J. No. 3754, 1997 CarswellOnt 3496 (C.A.).

[118] Applying the law about summary judgment to the immediate case, I am satisfied that the case at bar is an appropriate case to decide the three issues presented by this motion for summary judgment. Beyond those three discrete issues, this case would not be a candidate for a summary judgment. The ultimate result is that Ms. A.C.'s sexual assault claim should [page137] proceed to trial to be decided on its merits. There is no reason for me to remain seized of the matter.

2. Was Ms. A.C.'s sexual assault claim settled?

[119] Whether Ms. A.C.'s sexual assault claim was settled is essentially a matter of findings of fact. I have made those findings above and conclude that there was no settlement.

[120] I dismiss the branch of Mr. Joyce's summary judgment that asserts that her claim was settled.

3. Ms. A.C.'s slander claim

[121] Whether Ms. A.C. has a slander claim is also essentially a matter of findings of fact.

[122] Slander, along with libel, are forms of the tort of defamation. The difference is that libel is a written defamatory communication and slander is an oral defamatory communication. The general rule is that a cause of action in slander requires the plaintiff to demonstrate special damages, i.e., a tangible loss of business, money or property.

[123] This requirement of proof of special damages derives from the legal policy that being transient in nature with a limited form of publication, slander does not justify a cause of action except for some exceptional cases. The four exceptions, one of which is an anachronism, are (1) disparaging the reputation of the plaintiff in the way of his or her work, business, office, calling trade or professions; (2) imputing the commission of a criminal offence; (3) imputing a loathsome or contagious disease; and (4) imputing promiscuity to a chaste woman. See R. Brown, Brown on Defamation, 2nd ed., vol. 2 (Toronto: Carswell, 1994), pp. 8-41; P.A. Downard, Libel, 3rd ed. (Markham, Ont.: LexisNexis, 2014).

[124] As a matter of findings of fact, I conclude that Ms. A.C. has failed to prove a claim in slander. I disbelieve her evidence about the two incidents where she alleges that she was slandered.

[125] I find as a fact that she has not proven special damages.

[126] Therefore, I grant Mr. Joyce a partial summary judgment dismissing the slander claim.

4. Is Ms. A.C.'s sexual assault claim statute-barred?

(a) Statutory provisions

[127] The Limitations Act, 2002 provides a complex and special treatment for sexual assault claims. For present purposes, the relevant provisions of the Act -- as they existed before the recent amendment to the Act -- are ss. 1, 4, 5, 7 (partially repealed and re-enacted by the amending statute), 8, 10 (repealed [page138] by the amendment), 15 (partially repealed and re-enacted by the amending statute) and 16 (partially repealed and re-enacted by the amending statute), which are set out below.

Definitions

1. In this Act,

"claim" means a claim to remedy an injury, loss or damage that occurred as a result of an act or omission[.]

BASIC LIMITATION PERIOD

Basic limitation period

4. Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.

Discovery

5(1) A claim is discovered on the earlier of,

(a) the day on which the person with the claim first knew,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of the person against whom the claim is made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and

(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).

Presumption

(2) A person with a claim shall be presumed to have known of the matters referred to in clause (1)(a) on the day the act or omission on which the claim is based took place, unless the contrary is proved.

Incapable persons

7(1) The limitation period established by section 4 does not run during any time in which the person with the claim,

(a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and

(b) is not represented by a litigation guardian in relation to the claim. [page139]

Presumption

(2) A person shall be presumed to have been capable of commencing a proceeding in respect of a claim at all times unless the contrary is proved.

Extension

(3) If the running of a limitation period is postponed or suspended under this section and the period has less than six months to run when the postponement or suspension ends, the period is extended to include the day that is six months after the day on which the postponement or suspension ends.

Exception

(4) This section does not apply in respect of a claim referred to in section 10.

Litigation guardians

8. If a person is represented by a litigation guardian in relation to the claim, section 5 applies as if the litigation guardian were the person with the claim.

Assaults and sexual assaults

10(1) The limitation period established by section 4 does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.

Presumption

(2) Unless the contrary is proved, a person with a claim based on an assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced if at the time of the assault one of the parties to the assault had an intimate relationship with the person or was someone on whom the person was dependent, whether financially or otherwise.

Same

(3) Unless the contrary is proved, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced.

ULTIMATE LIMITATION PERIODS

Ultimate limitation periods

15(1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.

General

(2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place. [page140]

Exception, purchasers for value

(3) Despite subsection (2), no proceeding against a purchaser of personal property for value acting in good faith shall be commenced in respect of conversion of the property after the second anniversary of the day on which the property was converted.

Period not to run

(4) The limitation period established by subsection (2) does not run during any time in which,

(a) the person with the claim,

(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and

(ii) is not represented by a litigation guardian in relation to the claim;

(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or

(ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

Burden

(5) Subject to section 10, the burden of proving that subsection (4) applies is on the person with the claim.

Day of occurrence

(6) For the purposes of this section, the day an act or omission on which a claim is based takes place is,

(a) in the case of a continuous act or omission, the day on which the act or omission ceases;

(b) in the case of a series of acts or omissions in respect of the same obligation, the day on which the last act or omission in the series occurs;

(c) in the case of an act or omission in respect of a demand obligation, the first day on which there is a failure to perform the obligation, once a demand for the performance is made.

NO LIMITATION PERIOD

No limitation period

16(1) There is no limitation period in respect of, [page141]

(h) a proceeding arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise[.]

Conflict with s. 15

(4) This section and section 17 prevail over anything in section 15.

[128] As noted above, pursuant to Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, S.O. 2016, c. 2, the Limitations Act, 2002 was recently amended.

[129] The amendments to the Limitations Act, 2002 came into force on the day the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 received royal assent. That Act received royal assent on March 8, 2016, which was 13 days after this summary judgment motion was argued.

[130] Pursuant to the amending legislation, ss. 7(4), 10 and 24(6) of the Limitations Act were repealed and ss. 15(5), 16 and 24(2) and (2.1) of the Act were amended as set out below:

Burden

15(5) The burden of proving that subsection (4) applies is on the person with the claim.

NO LIMITATION PERIOD

No limitation period

16(1) There is no limitation period in respect of,

(h) a proceeding arising from a sexual assault;

(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, 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 misconduct:

(i) the other person had charge of the person with the claim,

(ii) the other person was in a position of trust or authority in relation to the person with the claim, [page142]

(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

(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[.]

Same

(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 ).

Same

(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.

Same

(1.3) For greater certainty, clauses (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 .

Transition

Definition

24(1) In this section,

"former limitation period" means the limitation period that applied in respect of the claim before January 1, 2004.

Application

(2) Subject to subsection (2.1), this section applies to claims based on acts or omissions that took place before January 1, 2004 and in respect of which no proceeding has been commenced before that date.

Exception

(2.1) This section does not apply to a claim in respect of which clause 16(1)(h), (h.1) or (h.2) applies. [page143]

[131] In the discussion below, I will analyze whether Ms. A.C.'s sexual assault claim is statute-barred under the Limitations Act, 2002 as it existed both before and after March 8, 2016.

(b) The law of limitation periods for sexual assault claims

[132] In Ontario, the theory of limitation periods is that when a person has a right to sue, which is to say that when a plaintiff has a "claim", then with a few exceptions where there is no limitation period, he or she must commence an action within two years from the date the claim is discovered (which is the basic limitation period) and no later than 15 years after the anniversary of the date on which the claim occurred (which is the ultimate limitation period). If the plaintiff fails to make a timely claim, then his or her claim is statute-barred.

[133] There are five complex elements to this theory. The first element is that there must be a "claim". In a somewhat circular fashion, a "claim" is defined in s. 1 of the Act as "a claim to remedy an injury, loss or damage that occurred as a result of an act or omission".

[134] The constituent elements of a sexual assault cause of action can be assumed to have been satisfied in the immediate case.

[135] The second complex element of the theory of limitation periods is that the claim or cause of action must be "discovered". The idea of discoverability is a very complex element and is a codification and extension of a common law principle that a person cannot be expected to commence a timely lawsuit without knowing of its existence. See Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] 3 S.C.R. 549, [1997] S.C.J. No. 31; Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] 2 S.C.R. 147, [1986] S.C.J. No. 52. For most claims, the codification of discoverability is largely found in s. 5 of the Limitations Act, 2002.

[136] The third complex element is that the plaintiff must have the legal capacity to sue. Section 7(1) of Limitations Act, 2002 provides that the basic limitation period does not run during any time in which the person with the claim (a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and (b) is not represented by a litigation guardian in relation to the claim.

[137] The two-year limitation period established by s. 4 of the Act does not run during any time in which the person with the claim is incapable of commencing a proceeding, and the practical effect of the limitation period not running during the period of incapacity is that the basic limitation period is extended [page144] commensurate with the period of incapacity: Leone v. University of Toronto Outing Club, [2006] O.J. No. 4131, 151 A.C.W.S. (3d) 1170 (S.C.J.); Andriano v. Napa Valley Plaza Inc., [2010] O.J. No. 4951, 2010 ONSC 5492 (S.C.J.), at para. 16; Landrie v. Congregation of the Most Holy Redeemer (2014), 120 O.R. (3d) 768, [2014] O.J. No. 3132, 2014 ONSC 4008 (S.C.J.), at paras. 25-35.

[138] For the immediate case, it shall be important to keep in mind that capacity to sue on the one hand and discoverability on the other hand both involve the mental state of the plaintiff; however, while mental capability (capacity to sue) and the exercise of that capability to discover that one has a claim (discoverability) are both mental states, they are distinct mental states and they should not be conflated. As will be seen in the analysis below, the distinction between being mentally capable of knowing that one has a claim (legal capacity) and subjectively and objectively discovering that one has a claim (discoverability) has a prominent role to play in determining whether Ms. A.C.'s sexual assault claim is statute-barred.

[139] The fourth complex element is that the Limitations Act, 2002 employs several rebuttable presumptions that affect the determination of the other complex elements. The operation of the presumptions has a profound impact on the onus of proving the various elements of the theory of the running of limitation periods.

[140] The fifth complex element of the theory of limitations is that of "the timing" or "the running" of the basic limitation period. The complexities of the timing are that (a) the beginning of the limitation period is flexible because of the discoverability principle; (b) the beginning of the limitation period is flexible because of the matter of legal capacity; (c) the running of the limitation period can be suspended and the length of the limitation period extended by the absence of legal capacity; and (d) the running of the limitation period can be suspended and the length of the limitation period extended by the doctrine of fraudulent concealment (which, for present purposes, I need not discuss further).

[141] Thus, the running of and length of the limitation period can be altered by a variety of means with the result that more time than prescribed by the limitation period may pass after the occurrence of the claim to the completion of the limitation period for that claim. Using the analogy or metaphor of "added time" in a soccer match, which has a regular time limit of 90 minutes, the duration of the limitation period may be longer than the regular two years.

[142] This added time phenomenon may be seen in numerous decisions in motor vehicle negligence claims involving soft tissue [page145] injuries and chronic pain, where despite the reality that the putative plaintiff will almost immediately have discovered that he or she has a claim, he or she will not know whether the damages element of the cause of action is sufficient to satisfy the threshold imposed by the Insurance Act, R.S.O. 1990, c. I.8 for a tort claim. Thus, the running of the limitation period has added time. The added time phenomenon may also be noted in medical malpractice cases.

[143] Uncertainty about the extent of the putative plaintiff's injuries and uncertainty about the cause of the injuries may postpone when the plaintiff subjectively or objectively discovers the cause of action, because the uncertainty postpones the day he or she subjectively first knew (to quote from the Limitations Act, 2002) "that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it" and the uncertainty postpones "the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of" the matters that define what it is to discover a claim. The practical effect of the uncertainty about when a claim is actually discovered is that "added time" extends the two-year limitation period.

[144] The added time phenomenon is actually more profound than the analogy of a soccer match where the clock begins to run when the referee blows the whistle to start the match and then the added time is added at the end of the regulation time to make up for interruptions in the play of the game. In contrast to the metaphor, for the running of a limitation period for a claim, the added time comes at the outset because of the flexibility of the discoverability factor and there may be more added time if the running of the limitation period is suspended.

[145] Additional added time may come at the outset and also during the course of the running of the limitation period because of the incapacity factor (and also the fraudulent concealment factor). Pursuant to s. 7(1) of the Limitations Act, 2002, the basic limitation period does not run during any time in which the person with the claim is (a) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition; and (b) is not represented by a litigation guardian in relation to the claim. The legal capacity factor can thus be the source of time being added to the basic limitation period.

[146] I foreshadow to say, as I shall explain below, that this added time phenomenon occurred in the circumstances of the case at bar because pursuant to s. 10(3) of the Act, Ms. A.C. was [page146] presumed to have been incapable of commencing the proceeding earlier than it was commenced unless the contrary was proved. Pursuant to this presumption, Ms. A.C. was presumed not to have the capacity to sue until May 31, 2013, but my conclusion below is that what was proved to the contrary is that she had the capacity to sue as of June 21, 2011, when she gave Mr. Miller instructions to send Mr. Joyce a demand letter threatening suit. The added time phenomenon meant that she had until June 21, 2013 to issue a timely claim.

[147] Turning to the particular matter of the limitation period for sexual assault claims, s. 16(1)(h) of the Limitations Act, 2002 stipulates that "there is no limitation period in respect of a proceeding arising from a sexual assault if at the time of the assault one of the parties to it had charge of the person assaulted, was in a position of trust or authority in relation to the person or was someone on whom he or she was dependent, whether financially or otherwise".

[148] In other words, there is no limitation period if a person in a position of trust perpetrates a sexual assault on a person with whom he or she is in a relationship of trust. For example, there is no limitation period if a father sexually assaults one of his children.

[149] It is a factual matter of the particular relationship between the plaintiff and the perpetrator of the sexual assault that will determine whether the perpetrator was in a position of trust or authority. See Morgan v. Kent, [2008] O.J. No. 972, 165 A.C.W.S. (3d) 739 (S.C.J.); Veri v. Mill Creek Motor Freight LP, [2009] O.J. No. 2935 (S.C.J.); R. (J.) v. Vickery, [2010] O.J. No. 1006, 2010 ONSC 1446 (S.C.J.); S. (C.) v. Nigro, [2010] O.J. No. 2486, 2010 ONSC 3204 (S.C.J.); Boyce v. Toronto (City) Police Services Board, [2011] O.J. No. 7, 2011 ONSC 53 (S.C.J.).

[150] Pursuant to s. 4 of the Act, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. However, pursuant to s. 10(1) of the Act, the limitation period established by s. 4 does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.

[151] As set out in s. 7 of the Act, the circumstance that a limitation period does not run during any time in which the person with the claim is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition is actually a principle that applies to all claims and not just sexual assault claims. However, because of [page147] s. 10(3) of the Act, sexual assault claims receive very special treatment. Pursuant to s. 10(3) of the Act unless the contrary is proved, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced.

[152] It should not escape notice that but for the presumption of incapacity available to victims of sexual assault, a plaintiff relying on incapacity to sue as a means to extend the running of the limitation period would likely have to provide medical evidence indicating that he or she lacked the capacity to bring the claim within the two-year limitation period. See Deck International Inc. v. Manufacturers Life Insurance Co., [2012] O.J. No. 2155, 2012 ONCA 309, at paras. 4 and 6; Klimek v. Klos, [2013] O.J. No. 3740 (S.C.J.), at para. 25; Reid v. Crest Support Services (Meadowcrest) Inc., [2013] O.J. No. 4525, 2013 ONSC 6264 (S.C.J.), at paras. 13-17.

[153] In Choc v. Hudbay Minerals Inc. (2013), 116 O.R. (3d) 674, [2013] O.J. No. 3375, 2013 ONSC 1414 (S.C.J.), the defendant Hudbay Minerals, a Canadian mining company, brought a motion to have the claims of 11 women who were indigenous people of Guatemala dismissed on the grounds that their claims were statute-barred. The factual background was that on January 17, 2007, a subsidiary of the mining company sent in security personnel to clear the mining site of any occupants, and the 11 women alleged that they were gang raped during their forced removal from the site. On March 28, 2011, over four years later, the women sued the parent corporation, Hudbay Minerals, for negligence in failing to supervise the subsidiary. Justice C.J. Brown held that the cause of action against the parent corporation was in relation to a sexual assault claim and thus within s. 10 of the Limitations Act, 2002. Having decided that the claims were within s. 10 of the Act, Justice Brown concluded that the women's claims were not statute-barred because of the presumption found in s. 10(3) of the Act. Justice Brown stated, at para. 83 of her judgment:

As the plaintiffs in the Caal action are alleging that the defendants' negligence caused them to be sexually assaulted, the claim is "based on assault or sexual assault" under s. 10(1) of the Limitations Act. Therefore, under s. 10(3), the plaintiffs were "presumed to have been incapable of commencing the proceeding earlier than it was commenced", unless the contrary is proven. The defendants have not presented evidence nor made submissions to refute the presumption that the plaintiffs were "incapable of commencing the proceeding earlier than it was commenced". The defendants argue that the claim was discovered because the plaintiffs knew who sexually assaulted them, but they do not argue that the plaintiffs' "physical, mental or psychological condition" (s. 10(1)) did not prevent them from commencing the action. Accordingly, I find that the presumption is not rebutted, the [page148] limitation period did not begin to run until the proceeding was commenced, and the action is not statute-barred on that basis.

[154] It should be noted that Justice Brown does not conflate discovery of the sexual assault claim with the physical, mental or psychological capability of commencing a lawsuit.

[155] Assuming that s. 16 of the Limitations Act does not apply and so there is a limitation period for the sexual assault claim and assuming that there is no postponement of the running of the limitation period pursuant to s. 10 of the Act, it would appear at first blush that the discoverability of the sexual assault would then fall within the normal operation of ss. 4 and 5 of the Act. Section 4 sets a basic limitation period of two years, and s. 5(2) imposes a presumption that a person with a claim shall be presumed to have known of the matters referred to in clause 5(1)(a), i.e., to have discovered his or her sexual assault claim on the day the act or omission on which the claim is based took place, unless the contrary is proved.

[156] The case law, however, establishes that while sexual assault claims fall within the normal discoverability regime of s. 5 of the Act, the courts apply that regime with a special sensitivity to the effect of a sexual assault not only on the victim's capacity to sue but also on his or her mental state of discovering the sexual assault claim.

[157] In sexual assault cases, a special approach to not only mental capacity to sue but also for the mental state of discovering a claim can be identified in M. (K.) v. M. (H.), [1992] 3. S.C.R. 6, 1992 CanLII 31 (SCC), [1992] S.C.J. No. 85, the seminal case about limitation periods and sexual assault claims, and a case that predates the adoption of the Limitations Act, 2002 with its special treatment of sexual assault claims.

[158] In M. (K.) v. M. (H.), the plaintiff brought an action against her father for damages arising from incest and for breach of a parent's fiduciary duty. A jury found that the father had sexually assaulted his daughter, but the trial judge ruled that the action was barred by the Limitations Act. The Ontario Court of Appeal, [1989] O.J. No. 2379, 18 A.C.W.S. (3d) 490 (C.A.) dismissed an appeal from the trial judge's ruling.

[159] The Supreme Court, unanimous in the result, overturned the appeal on the basis that the plaintiff could not have reasonably discovered the cause of action until she was able to connect the effects of the incest to the abuse itself. Justice La Forest, writing for the majority, stated, at paras. 14 and 30:

The tort claim, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and her injuries. [page149] In this case, that discovery took place only when the appellant entered therapy, and the law-suit was commenced promptly thereafter[.]

In my view the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisite that the Plaintiff have a substantial awareness of the harm and its likely cause before the limitations period begins to toll. It is at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes. I am in complete agreement with Professor Des Rosiers that the causal link between fault and damage is an important fact, essential to the formulation of the right of action, that is so often missing in cases of incest; see "Les recours des victimes d'inceste et d'agression sexuelle" to be published in Legrand, ed., Common law d'un siècle à l'autre (1992). What is more, I am satisfied that the weight of scientific evidence establishes that in most cases the victim of incest only comes to an awareness of the connection between fault and damage when she realizes who is truly responsible for her childhood abuse. Presumptively, that awareness will materialize when she receives some form of therapeutic assistance, either professionally or in the general community. I have come to this conclusion after studying the expert evidence in this case and the American jurisprudence which has wrestled with this problem over the past decade. The presumption will, of course, be displaced when the evidence establishes that the victim discovered the harm and its likely cause at some other time.

[160] It is to be observed that Justice La Forest's attention is focused on how the nature of sexual assault influences the application of the discoverability rule.

[161] Justice La Forest derived his approach from the comments of Justice Hall in G. (K.E.) v R. (G.), 1992 CanLII 4040 (BC SC), [1992] B.C.J. No. 256, 89 D.L.R. (4th) 315 (S.C.), where he stated:

. . . it seems to me that the hypothetical reasonable person in the shoes of the plaintiff would not have been acting sensibly in commencing an action until such a person come to appreciate that a wrong or wrongs that had occasioned significant harm to her wellbeing could be established. That to me is the essence of what Taylor J.A. is saying in a different context in this passage at p. 266 of the Karsanjii case:

. . . The court must ask whether such a patient "ought" in such circumstances, in the eyes of an objective observer, "in his own interests" "to be able to bring an action". While the exercise required demands some intellectual contortionism, its purpose, in my opinion, is fairly discernible. It is that time shall not start to run until the reasonable person would consider that someone in Mr. Karsanjii's circumstances ought, in his own interests, to have been "able to bring an action" against Dr. Roque.

[162] On this topic of the effect of the cause of action being a sexual assault on the running of limitation periods, I agree with the comments of Justice B.H. Matheson in Morgan v. Kent, supra, at paras. 56-57, where he states:

In matters that involved sexual assaults the court is now directed to follow the legislative route as set out in the Limitations Act. The court must [page150] look at the impact on the victim and take into account the mental condition of him or her.

That position is well stated in R. v. L. (W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091, at page 1101, when the Supreme Court wrote:

For victims of sexual abuse to complain would take courage and emotional strength in revealing those personal secrets, in opening old wounds. If proceedings were to be stayed based solely on the passage of time between the abuse and the charge, victims would be required to report incidents before they were psychologically prepared for the consequences of that reporting.

[163] In its Report on the Law of Limitation of Actions (1989), a report that preceded the enactment of the Limitations Act, 2002, the Canadian Bar Association -- Ontario commented:

It is further argued in the literature that the law of limitations cannot respond to the problems of sexual assault victims. [The] theory of "accommodation" is often cited as one reason why the limitation period should be extended in such cases. Because the victim must cope alone, "he or she" often internalizes feelings of self blame, anger, fear, confusion, and demoralizing anguish, shame and sadness generated by incest. This internalization or repression of anger and anxiety is a survival mechanism known as "accommodation" . . . the victim often "blocks out" the experiences for many years. It has also been found that incest victims often meet the diagnostic criteria for post-traumatic stress disorder. PTSD is similar to "accommodation" as the victim attempts to repress psychologically unacceptable experiences until a later time in life when it might be possible to cope with them. This may prevent the sexual assault victim from taking civil action against the offender within the applicable statute of limitations.

[Footnote omitted]

[164] Although the observations in this report are directed at incest victims, in my opinion, it is also the case that all victims of sexual assaults have to grapple with powerful if not overpowering emotions that affect all of their mental capacities to discover their sexual assault claim, to act on that discovery and to have the mental capacity to bring legal proceedings.

[165] See, also, G. Mew, D. Rolph and D. Zacks, The Law of Limitations (3rd ed.) (Toronto: LexisNexis, 2016), pp. 87, 253-58; G. Mew and A. Lomaga, "Abusive Limits: M. (K.) v. M. (H.) and a Comparison of the Limitation Periods for Sexual Assault" (2009), 35 Adv. Q. 133; G. Mew, "When Does Time Start to Run? When Does Time Run Out? When Does the Clock Stop Running?" (2004), 28 Adv. Q. 448.

(c) The discovery of Ms. A.C.'s sexual assault claim

[166] In the case at bar, Ms. A.C. submitted that she and Mr. Joyce were in a relationship that fell within the parameters of s. 16 of the Limitations Act for which there would be no limitation period for her sexual assault claim. [page151]

[167] I disagree. Ms. A.C. was and is an independent adult woman, who had had a short romantic relationship and a longer platonic relationship with Mr. Joyce. She had a career of her own. While her personal financial resources were paltry in comparison to his wealth, she was not his dependent, and he never had a legal obligation to support her. They were friends, but their friendship did not rise to the level of the type of relationship for which the law does not impose a limitation period for a sexual assault claim.

[168] Apart from the effect of the recent amendments to the Limitations Act, 2002, discussed below, a limitation period applies to Ms. A.C.'s sexual assault claim. Although I make no binding finding on the matter, for present purposes, it can be assumed that Ms. A.C. was sexually assaulted by Mr. Joyce on May 19, 2011 and that the constituent elements of the tort of sexual assault existed as of May 19, 2011. Pursuant to s. 5(2) of the Act, the onus is on Ms. A.C. to rebut the presumption that she discovered her claim on May 19, 2011.

[169] Ms. A.C. attempts to meet the onus by submitting that it was not until she received legal advice, which occurred on June 21, 2011 that she discovered her claim. In my opinion, she has indeed met the onus, and she did not discover her sexual assault claim until she spoke to her lawyers and then instructed them to write a demand letter to Mr. Joyce.

[170] I appreciate that Ms. A.C. was thinking about taking legal proceedings against Mr. Joyce even perhaps from the moment she phoned him angry at his quick departure to travel to Barrie or a little later in the day when her mother reported about her conversations with the police officer who she chanced upon at the Starbucks at the mall in Burlington. But, it was not until she spoke to a lawyer that she had a substantial awareness of the harm that she had suffered. As Justice La Forest noted in M. (K.) v. M. (H.), that substantial awareness may materialize when the victim receives some form of therapeutic assistance either professional or in the community.

[171] Professor Bruce Feldthusen, in "The Civil Action for Sexual Battery: Therapeutic Jurisprudence?" (1993), 25 Ottawa L. Rev. 203, an article written in 1993, before the enactment of the Limitations Act, 2002, noted that sexual assault claimants were not typical litigants whose primary motivation would be financial gain, but rather the victims of a sexual assault would have other thoughts in mind when they sought access to justice; rather, Professor Feldthusen noted:

Instead of the prospect of financial gain, many sexual battery plaintiffs have reported therapeutic motivations for suing. By therapeutic, I mean only that [page152] some aspect of the litigation -- the complaint, the process, or the outcome -- is expected to, or does, assist the victim along the path to recovery. For some plaintiffs, the sexual battery litigation was perceived as part of the healing process. Others have indicated that they brought suit to punish their assailant. Still others claim they sought public vindication. At least one plaintiff specifically hoped her suit would encourage other victims. Taken together, these constitute an unusual modern manifestation of the original justifications for tort law: corrective justice, vindication, appeasement, and even retribution.

[172] During the course of her argument, Ms. A.C. voiced all these therapeutic and non-therapeutic motivations, and, of course, she also brought a civil action claiming $7.5 million of financial gain. I take from all this that in the context of a sexual assault claim that, to borrow the language from s. 5(1), "having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it" is not so simple a thing as knowing that you were sexually assaulted and knowing the assailant.

[173] If Mr. Joyce was correct in submitting that Ms. A.C.'s almost immediate angry thoughts about bringing legal proceedings was sufficient to start the running of the limitation period, it would be virtually impossible to rebut the presumption already found in s. 5(2) of the Limitations Act, 2002 because the circumstances that constitute discovery would always be present. Just as the threshold imposed by the Insurance Act suggests a nuanced approach to what it is to "discover" a personal injury claim, the interpretation of discoverability in the context of a sexual assault claim requires an approach that provides the plaintiff with an opportunity to be better informed and to achieve a substantial awareness of the discovery of his or her sexual assault claim.

[174] While there is (under the version of the Limitations Act that was operative until March 6, 2016) a limitation period for sexual assaults, the presumption in s. 5(2) of the Act that the limitation period begins to run immediately upon the occurrence of the sexual assault should be tempered by the prerequisite to the discoverability rule that the plaintiff should have had a substantial awareness of the implications of prosecuting such a claim. Such an interpretation of discoverability for sexual assault claims is consistent with the reading of the Act in its entirety and recognizes that sexual assault claims are about more than compensatory damages.

[175] Applying this approach to my findings of fact in the immediate case, I conclude that Ms. A.C. has met the onus of showing that discoverability of her claim occurred on June 21, 2011, and the two-year limitation period only commenced to run from that date. [page153]

[176] I also conclude based on my findings of fact that the running of the limitation period was in a state of suspension from the date of the sexual assault, May 19, 2011, until June 21, 2011 because of the presumption found in s. 10(3) of the Limitations Act, 2002 that "unless the contrary is proved, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced".

[177] The onus of proving that the plaintiff had the capacity of commencing the proceeding earlier than he or she did is on the defendant, Mr. Joyce. In the case at bar, Mr. Joyce has not shown that Ms. A.C. had the requisite capacity earlier than June 21, 2011.

[178] To repeat the point I made above, the mental state that constitutes discoverability is not the same as the mental state of having the legal capacity to sue. In the case at bar, even if it could be said that Ms. A.C. had discovered that she had a claim for sexual assault on May 19, 2011, including a substantial awareness of the claim, it does not follow that she had the legal capacity to sue at the same time as she discovered her claim.

[179] This type of legal phenomenon of different mental states co-existing is not unknown to the law. The mental capacity to sue is not the same as the mental capacity to contract, or to marry or to execute a will, or to consent to medical treatment. To take a simple example, a teenager involved in a car accident might have discovered her claim but without a litigation guardian having been appointed, the limitation period for that discovered claim would be suspended because the teenager would be a minor without the legal capacity to sue.

[180] In the immediate case, even if Ms. A.C. discovered her sexual assault claim on May 19, 2011, which I have found not to be the case, her discovery of the claim does not entail that she had the legal capacity to sue on May 19, 2011. Discoverability and legal capacity to sue should not be conflated. Ms. A.C.'s legal capacity to sue did not occur until June 21, 2011, and it was only then that the two-year limitation period began to run.

[181] My conclusion is that Ms. A.C.'s sexual assault claim is not statute-barred.

(d) The limitation period pursuant to the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016

[182] As noted above, after the summary judgment motion was argued, the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016 [page154] came into force and it amended the Limitations Act, 2002. Pursuant to s. 16(1)(h) of the amended Act, there is no limitation period in respect of a proceeding arising from a sexual assault.

[183] Pursuant to s. 16(1.1) of the amended Act, the no limitation period for sexual assault claims (s. 16(1)(h)) applies 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). In the case at bar, no previously applicable limitation period has expired and s. 16(1)(h) would therefore apply to the current proceeding subject to s. 16(1.2).

[184] Pursuant to s. 16(1.2), s. 16(1.1) applies to a proceeding -- like the immediate one -- that was commenced before March 6, 2016, when 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. Neither of those precluding conditions applying, it follows that there is no limitation period for Ms. A.C.'s sexual assault claim.

E. Conclusion

[185] For the above reasons, I grant Mr. Joyce's summary judgment motion in part, and I dismiss the slander claim. I dismiss the balance of Mr. Joyce's summary judgment motion.

[186] I order costs in the cause with respect to the partially successful and partially unsuccessful summary judgment motion.

Motion granted in part.

End of Document