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Limitations Act - Intimate Partner Violence [LA s.16(1)(h.2)]. Malamas v. Wey
In Malamas v. Wey (Ont CA, 2026) the Ontario Court of Appeal partially allowed a plaintiff's appeal, here brought against a summary judgment order "dismissing the appellant’s action" and involving "allegations and evidence of intimate partner violence".
The court considered Limitations Act s.16(1)(h.2) ['No limitation period - assault - intimidate relationship'], here in an assessment of whether a 'genuine issue for trial' lay in a summary judgment context:[40] The appellant submits that her claims against Eberhard, arising out of or connected to intimate partner assault, may fall within s. 16(1)(h.2) of the Limitations Act, 2002. This issue must be assessed in light of the pleadings, the statutory provisions, and the fact that the appellant was self-represented. The statement of claim alleges intimate partner violence alongside claims for fraud and emotional distress. Given those allegations, and the assaults admitted by Eberhard, the motion judge was required to consider whether the appellant’s claims, as pleaded or with amendment, could engage s. 16(1)(h.2). Read generously, the appellant’s submissions raised that issue: R. v. Morillo, 2018 ONCA 582, 362 C.C.C. (3d) 23, at paras. 11-12.
[41] Sections 16(1)(h.2) and 16(1.3), enacted by the Sexual Violence and Harassment Action Plan Act[1] in 2016, remove the limitation period for claims advanced in a proceeding “based on” an assault in an intimate relationship if those claims are made “in relation to” that assault. This protection may apply to claims against third parties as well as against the alleged perpetrator: X.H. v. Cota, 2022 ONCA 274, at para. 7.
[42] The “based on” requirement is met where the assault is an important component of the proceeding: Choc v. Hudbay Minerals Inc., 2013 ONSC 1414, 116 O.R. (3d) 674, at paras. 80, 82, citing J.P. v. Sinclair (1997), 1997 CanLII 12500 (BC CA), 148 D.L.R. (4th) 472 (B.C.C.A.), at para. 17, and John Doe v. Bennett, 2002 NFCA 47, 215 Nfld. & P.E.I.R. 310, at para. 209, aff’d 2004 SCC 17, [2004] 1 S.C.R. 436. On summary judgment, the plaintiff must show a genuine issue requiring a trial that such an assault occurred: Deluca v. Bucciarelli, 2022 ONCA 774, at paras. 14, 24.
[43] The “in relation to” requirement is satisfied where the claim has some connection to the assault. This requirement is broad and does not require a direct or proximate link: Cota, at para. 8; Jane Doe v. Weinstein, 2018 ONSC 1126, 47 C.C.L.T. (4th) 326, at paras. 26-27, per Monahan J. (as he then was); see also Markevich v. Canada, 2003 SCC 9, [2003] 1 S.C.R. 94, at para. 26; R. v. McNab, 2020 SKCA 4, 384 C.C.C. (3d) 316, at paras. 28-31.
[44] These provisions are remedial and are to be interpreted generously in light of their purpose – “addressing broad systemic problems” concerning intimate partner violence: Jane Doe, at para. 24, per Monahan J.; see also Clarke v. Clarke, 1990 CanLII 86 (SCC), [1990] 2 S.C.R. 795, at p. 807. They must be applied contextually, including in light of the jurisprudential recognition that intimate partner violence may involve multiple forms of conduct and harm: Bates, at para. 30; Ahluwalia, at paras. 91-92.
[45] On this record, the assaults admitted by Eberhard are capable of satisfying the “based on” requirement. They form part of the factual foundation for the appellant’s emotional distress claim and provide context for the related financial allegations.
[46] There is likewise a genuine issue requiring a trial as to whether the appellant’s claims are “in relation to” those assaults. The emotional distress claim may be linked directly to the assaults. The appellant’s evidence also raises an arguable temporal and contextual connection between the alleged financial deception and the assaults, including events said to have followed her report to police. Whether that connection is established is a matter for trial.
[47] In these circumstances, the applicability of s. 16 cannot be determined on summary judgment. As in Cota, that issue should be determined on a full evidentiary record at trial: at para. 11.
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