Non-profit organizations often rent their premises out to non-related groups to run programs involving children. The organization’s own members may not be present during such programs. Although the tenant group may have confirmed that it has liability insurance, there is always the possibility that a child involved in the program, or his parents, may bring a claim against the landlord for damages suffered while the child was a participant in the tenant program. To protect against such claims, the landlord should retain all documentation proving that the tenant rented the space for as long as there is the possibility that such a claim may be brought.
In a hypothetical scenario, an employee of the tenant group running the program engages in inappropriate behaviour with the children, and the children, once grown, seek to bring a claim against the landlord.
The landlord should retain documentation that its premises were rented so as to deferd against any claims based on vicarious liability, agency, or employment relationships relating to a potential sexual assault by an employee of the tenant at the rented premises. In other words, if a child is assaulted by a tenant’s employee while on the landlord’s property, the child may bring an action against the landlord for liability as owner of the property, vicarious liability for the actions of the employee, and the child may even claim that the employee was an agent or employee of the landlord. Having documentation regarding the rental arrangement may provide a defence against those claims. This is particularly so when the claim is brought many years after the alleged incident and it may be difficult to remember whether it was the non-profit organization or the tenant that ran the particular program.
How long should these documents be retaired? Since the potential claim is assumed to be based on a sexual assault, the limitation period can be lengthy. In Ontario, currently basic the limitation period is 2 years from the date when the claim was discovered. A claim is discovered at the earlier of when the assault took place, and when the child determines that he or she suffered damages, who assaulted him or her, and that a lawsuit is the proper action to take. The limitation period for sexual assaults prior to January 1, 2004 is 4 years. However, there are special transition rules.
The possible limitation periods that could apply to a claim based on a sexual assault are as follows:
- Basic limitation period: 2 years from when the claim is discovered.
- Ultimate limitation period: 15 years after the claim is discovered.
- There is no limitation period if the assault was committed by a person in a position of trust, authority or a fiduciary relationship.
- It is possible that a person in a leadership position in a program for children is in a position of trust, authority or a fiduciary relationship, particularly if he or she has the ability to exercise some discretion or power so as to affect the child’s interests, and if the child is particularly vulnerable to or at the mercy of the leader.
- For sexual assaults, the limitation period does not run during any time in which the plaintiff was incapable of commencing litigation because of his or her mental, physical or psychological condition. It is presumed that the plaintiff was incapable of bringing the action until he or she did actually bring it, unless the evidence proves otherwise.
- For minors, the limitation period is suspended until they reach the age of majority (18 years) or have a litigation guardian appointed.
Based on these possible limitation periods, the limitation period in the hypothetical scenario could be 15 years, until the child reaches the age of majority, or until the child is capable of bringing an action, or perhaps there may be no limitation period. The most prudent course of action for a non-profit organization in this position would be to retain records indefinitely, or for at least 25 years, so as to allow the 15 year ultimate limitation period to pass after an 8-year old child reaches the age of majority. It must be kept in mind that if a tenant employer is found to be in a position of trust and authority with respect to the child, there will be no limitation period. In any particular case, the determination of whether the limitation period has expired will be based on the facts in that situation.