



Every Thursday, Confabulous’ resident lawyer Tannis A. Waugh discusses the most interesting legal issues emerging in popular culture and addresses your burning law-related queries. Want to contest a parking ticket? Can’t help you. Got a legal question for our in-house LLB? Drop her a line at tannis [at] confabulous [dot] ca. Note: Nothing in this column constitutes legal advice in any jurisdiction and is for information and discussion purposes only. If you have a legal problem, consult a lawyer in your jurisdiction immediately.
As an alumni of Carleton, I thought this was very apropos that I would get a chance to review and comment on the negligence suit that’s been brought against the university.
On August 31, 2007, a Carleton University student working late in one of the labs was violently sexually assaulted. It’s important that you hear the facts of the assault because they’re particularly egregious. The victim had her head slammed down to the ground while the perpetrator repeatedly smashed her face against the floor after which he sexually assaulted her. The perpetrator then wiped her body down, stole some of her clothes and her cell phone and left victim on the floor tied up and semi-naked.
Just shy of the two year limitation period to bring a suit against Carleton, the victim has brought a suit against the university for just over $500,000.
In the Statement of Defence served by the university, they engage in victim-blaming, according to the Carleton University Student’s Association (CUSA) and other student organizations, by indicating that Carleton is not responsible because the victim failed to keep a “proper lookout,” didn’t lock the door of the lab and stayed in the lab alone.
This is a civil suit and the university is being represented by lawyers hired by its insurer and as such, all the stops are being taken to shield itself from liability which is generally what happens when an insurance company is involved in negligence matters such as this one.
It might be helpful for me to give a crash course in how a civil case comes to pass in Ontario.
Firstly, the plaintiff will file a statement of claim which is meant to be a precise statement of the facts that the plaintiff intends to prove at trial. It doesn’t get into the evidence that will be relied upon by the plaintiff but rather, it is a concise statement of the facts that the plaintiff intends to prove by calling evidence.
The university, or more particularly, its insurers, have 20 days to respond (or 30 by filing a Notice of Intent to Defend) or longer if the parties’ lawyers agree to a further extension, to prepare and serve a statement of defence.
When drafting a statement of defence, the purpose is to set out all possible defences to the claims set out in the statement of claim. If this is not done, the defendant may not be able to add defences at a later point (this is generally done with leave of the court or consent from the other party only) and generally, will not be granted if it would prejudice the other party.
As a result, the statement of defence is usually set up as a kitchen sink denial of any and all possible liability.
For this reason, it would be pretty difficult to draft a statement of defence that complied with a lawyer’s duty to its defendant client by professional standards to not engage in victim blaming. That is, after all, the very nature of the statement of defence.
While the statement of defence obviously leaves me with a bad taste in my mouth, I do understand that is the job of Carleton’s lawyer and frankly, there’s really no way to get around that…or is there?
After this assault, Carleton’s response was to institute significantly more security measures. To me, that indicates that Carleton recognized its lax security for its students who may be alone or working late.
It is a university, after all. Is that not what we were expected to do when we were in university? One only needs to think about being in an isolated area of the library or other part of their own university late at night to send a few chills down your spine about your own vulnerability.
The university may have been able to settle this case without the need for a public civil case to take place. Obviously, I’m not involved in this particular case but it’s general practice for a plaintiff’s lawyer to send a letter to the defendant prior to issuing a statement of claim in the interests of attempting to settle the matter without having to go through litigation. While it’s possible that this didn’t happen, it seems to me that this would have been the perfect opportunity to do the right thing. If the matter had settled, Carleton wouldn’t be receiving the bad publicity is now or the public outcry regarding its treatment of the victim.
Likely, this matter will be resolved before trial, as most civil cases are, and hopefully, the victim will obtain a settlement that will allow her to get on with her life as best as she can but in the meantime, the victim has to live through the stress of a claim that may take many years to resolve.
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