Navigating the civil sexual assault claims landscape

Money isn’t everything when it comes to litigating civil sexual assault claims.

For sexual assault survivors dealing not only with the physical and psychological trauma of their experience, but also the societal stigma that comes with it, the simple act of disclosure to a lawyer can be a momentous step, according to Gillian Hnatiw, the co-chair of OsgoodePD’s 2024 Guide to Civil Sexual Assault Claims.

“Sexual assault, fundamentally, is the stripping of someone’s power over their bodily autonomy. The damage [is] complex, and so is every survivor’s path to healing. So it’s very important to understand what your client wants out of litigation at the outset, because often it’s more than money,” says Hnatiw, the founder of Toronto law firm Gillian Hnatiw & Co.

“Obviously, maximizing the amount you get for your client is important, but to really do this kind of work well, you need to find ways to empower them through the process,” she adds.

Over two decades in practice, Hnatiw has maintained a broad civil litigation practice, but traces her particular interest in claims concerning sexual assault, abuse and harassment back to her articling term at Lerners LLP, where she practised under the guidance of Elizabeth Grace, a pioneer in the field. 

Despite the heavy emotional toll civil sexual assault litigation can take on both Hnatiw and her clients, she says it also offers an extra layer of professional and personal reward compared with run-of-the mill commercial claims, where the stakes are simply not comparable. 

“At end of day, I will never care as much about a fight over money as I care about a fight to restore someone’s sense of dignity and control over their own bodies and lives,” Hnatiw says. 

As the complexity of the sexual assault landscape has grown, so too has the need for specialized continuing education, according to Alexi Wood, Hnatiw’s co-chair for the program.

“It’s not really an area in which people can or should dabble,” she says. “It does take a particular skillset for both plaintiff and defence counsel and if you don’t really know some of the issues in the area, you can end up doing a lot of harm.”

Wood initially went to law school with the goal of working in women’s reproductive rights. After seven years working for NGOs, she entered private practice, and now litigates matters related to women and gender issues. As part of her wide ranging litigation practice at St. Lawrence Barristers PC, the Toronto firm she founded, Wood has developed a niche assisting clients with online defamation and harassment issues that are frequently a feature of civil sexual assault claims, including cyber-stalking and non-consensual sharing of intimate images. 

“Whereas before, you might be blackmailed by someone with actual film pictures, people now have the ability to destroy someone by sharing digital pictures that go viral instantly,” she says. 

Since Hnatiw first partnered with OsgoodePD to launch the guide to civil sexual assault claims as a lunchtime webinar series in 2016, the program has transformed into a full-day, must-attend event in the calendars of lawyers and human resources professionals working in the area.

Typically held every two years, a spike in demand prompted a switch to an annual schedule for the 2024 program, where attendees will hear from a faculty of judges and senior practitioners – including Hnatiw’s mentor, Grace – delivering the key knowledge and practical strategies needed to successfully advance or defend a civil sexual assault claim.

Wood is encouraged by the surge in interest among members of the legal profession, which she sees as a sign of increased openness among survivors of sexual assault.

“Many people would prefer to bury it. It takes a lot of strength, courage and emotional support to come forward and litigate these issues, so I’m happy that we have created a space where people are recognizing that something bad has happened to them that is actionable,” Wood says.

Still, it’s not just lawyers for plaintiffs who could benefit from attending the OsgoodePD program, according to Wood, who says the program has been designed with defence counsel in mind.  

“There are ways to be a defence counsel in this space with decency and integrity, without re-traumatizing people or perpetuating rape myths and sexual stereotypes,” she says. “It’s to the benefit of your clients to do so, not just ethically and morally, but probably also financially.”

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