Sexual Abuse Claims Blog

Historical sexual abuse claims can be complicated and difficult to prove for many reasons; the abuse happened long ago, witnesses may have died, records are destroyed and memories fade.

Limitation Periods a Barrier

One of the biggest hurdles abuse survivors faced was the fact that the time limit to file a claim had usually run out by the time the survivor had the strength or courage to be able to disclose what happened to them as a child.

Supreme Court Provides Greater Access to Justice for Survivors

In 1992, the Supreme Court of Canada recognized the difficulties that sexual abuse survivors face in being able to pursue compensation for their injuries. The Court tried to provide greater fairness to abuse survivors who pursue civil claims against their abusers later in life.

In M(K) v M(H) the Supreme Court of Canada ruled that limitation periods in provincial legislation do not begin to run until the abuse survivor is aware of connection between the defendant’s wrongful act (the abuse) and the plaintiff’s injuries (the effect of the abuse).

This means that abuse survivors are now able to bring forward claims years, sometimes even decades, after the abuse occurred.

When Does Time Run Out?

However, there are limits to the courts discretion to extend the ability for survivors to pursue their claims through the courts. A recent case from Alberta’s Court of Queen’s Bench is a perfect example.

In OW v WP the Plaintif, OW, sued her brother, WP, for incestuous sexual abuse she has claimed to have suffered between 1940 and 1945.

The defendant, WP, made a motion to strike out OW’s claim based upon Alberta’s Limitations Act.

In considering the motion, Justice Mahoney referenced to the Supreme Court of Canada’s decision in MK and stated at paragraph 41 of his decision:

“As stated in M(K), 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 the plaintiff’s injuries. In MK that discovery occurred only when the applicant entered therapy. The law suit was commenced promptly thereafter. La Forest J., for the majority said at paragraph 30:

“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.””

The difficulty in the OW case was that the plaintiff waited for more than fifty years to bring forward her claim. The judge examined evidence provided by OW during her discovery, which confirmed that she and her sister were actively contemplating suing WP for compensation as early as 1972. Justice Mahoney stated at paragraph 33:

“OW, in her discussions with E, indicates that she was aware of the link between the alleged sexual assaults and problems in her life. She knew she could sue WP then, and her sister E would not join her. OW then told E she was going to sue WP, plainly indicating her awareness of the right to do so as early as 1972, when these discussions took place.”

Justice Mahoney concluded, paragraph 49:

“As already discussed when referring to MK, sometimes, regardless of the passage of time, limitation periods begin when the claimant discovers the harm from sexual abuse long after it occurred. Taking the latest possible time in this case, being when OW and her sister E were discussing suing WP some time before 1972, the limitation date would have expired in 1974 at the latest. As this action was commenced some 25 years later in 1999, it is statute barred.”

The unfortunate result in the OW case was that her lawsuit against her brother was struck out by the court.

Self-Blame a Key Issue in Abuse Claims

There is no doubt that it is difficult for survivors of sexual abuse to disclose what happened to them. Survivors often struggle from feelings of self-blame that can be difficult to overcome without professional help. In fact, in the MK case, the Supreme Court of Canada went so far as to say that there is a presumption that incest survivors were not capable of making the connection between the acts of abuse and the harm caused by the abuse until they received professional counselling.

Counselling is Critical for Survivors!

I believe that access to professional counselling is a critical part of the recovery process for any abuse survivor. In fact, I think it is counselling that helps transform abuse victims into abuse survivors.

Free Resource for Abuse Survivors

That is why we prepared The Maritime Directory of Services for Survivors of Sexual Abuse. If you would like a free copy of the Directory you can download a copy from our website by clicking on the link or you can contact us through this blog, or call us toll-free at 1 (877) 423-2050.

The Supreme Court of Canada ruled today on Christensen v. Roman Catholic Archbishop of Québec, an important case out of the province of Quebec that addresses the rights of sexual abuse survivors in that province to pursue compensation for their injuries.

Quebec has the shortest statute of limitation (time limit) in Canada for filing sexual abuse compensation claims. In Quebec, if sexual abuse survivors wish to pursue a compensation claim, they must sue their abuser (or the abuser's employer) within three years of the sexual assault!!

In other words, if a child is sexually abused when they are 7 years old, they must file a claim before they turn 11 years of age. Does that sound crazy?

Takes Time to Discover Effects of Abuse

Courts in every other province Canada have recognized that survivors of childhood sexual abuse may not realize they have a potential claim until much later in life. The so called “discoverability rule” has been applied by courts in every province in Canada. The discoverability rule has also been enshrined in provincial legislation.

For more information you can read one of my earlier posts: Statute of Limitations in Sexual Abuse Claims: Supreme Court of Canada

Hope For Survivors in Quebec

Those of us that advocate for sexual abuse survivors had hoped that the Supreme Court would address the unfair situation in Quebec. But it appears they have avoided making a decision on the issue.

The SCC's decision was released this morning.

Catholic priest Paul-Henri Lachance pleaded guilty last year to sexually abusing a girl in 1980 when she was seven years old. Lachance was sentenced to 18 months in prison.

The archdiocese of Quebec asked the victims parents to keep the incident quiet, telling them that the church would take charge.

Lachance's victim filed a lawsuit against Lachance and the Archdiocese seeking compensation. The Church defended the claim on the basis that she should have filed her lawsuit in 1983 when she was ten years old.

The Church was successful in Que civil court, in having the lawsuit dismissed. The Quebec Court of Appeal upheld the dimissal.

Today the Supreme Court of Canada ruled that there wasn't enough evidence presented to the court at the trial level to properly determine when the time limit for filing a claim started to run. The SCC sent the case back to the trial judge.

The entire text of the judgement reads as follows:

This appeal raises the issue of prescription in a case involving a sexual assault that occurred more than 25 years before an action in civil liability was filed. The respondents filed motions to dismiss the action on the ground that it was prescribed. The Quebec Superior Court granted their motions and dismissed the action. A majority of the Court of Appeal affirmed that judgment, but for different reasons (2009 QCCA 1349, [2009] R.J.Q. 1970). We agree with the dissenting reasons of Chamberland J.A.

The issue of the point at which prescription started to run raised questions of fact that could not be resolved on the face of the record. The trial judge will have to assess the evidence to determine whether, on the facts, inferences can be drawn that establish either that prescription did not start to run until 2006 or, possibly, that it was suspended in the circumstances of this case.

For these reasons, the appeal is allowed and the case is remanded to the Superior Court, with costs throughout.

Another Chance at Justice

So Lachance's victim has another chance to convince the court that she is entitled to fairness, accountability and justice. Abuse survivors across the province of Quebec, and Canada, are watching.

Continue reading "Supreme Court of Canada Sends Time Limits Case Back to Court" »

Time Limits for Sexual Abuse Claims

This week the Supreme Court of Canada released its decisions in a pair of historical sexual abuse cases arising out of Nova Scotia. In Borden v. Attorney General of Nova Scotia and Smith v. Attorney General of Nova Scotia, the plaintiffs filed claims against the Nova Scotia Home for Colored Children and the Children’s Aid Society alleging the defendants were liable for damages for sexual assault and breach of fiduciary duty relating to sexual abuse that allegedly occurred in the home between 1966 and 1984.

The Home for Colored Children and the Children’s Aid Society applied for summary judgment to dismiss the claims on the basis that they were statute barred pursuant to Nova Scotia’s Limitation of Actions Act.

Takes Time to Discover Effects of Abuse

Courts across Canada have recognized that survivors of childhood sexual abuse may not realize they have a potential claim until much later in life. The so called “discoverability rule” has been applied by courts in every province in Canada. The discoverability rule has also been enshrined in provincial legislation.

Harms Connected to Assaults

Essentially, the discoverability rule means that the time for filling a lawsuit is “paused” until the plaintiff recognizes the connection between the sexual assaults and harms that they have suffered. The time limit is paused if the claimant is not capable of taking steps to pursue their claim as a result of a physical or psychological disability they suffered because of the sexual abuse.

Time is Still Important!

However, the discoverability rule also requires that plaintiffs take steps to move forward with their claim as soon as they discover the connection between their childhood abuse and the effects/harms that they have suffered.

In the Borden and Smith cases the defendants led evidence that both plaintiffs were aware that they were sexually abused as children, they were aware that the abuse was wrong, and they were aware of the effects that they had suffered as a result of the abuse many years before they filed their claims.

As I have reported before, Justice Goodfellow determined that the claims for negligence and sexual assault were statute barred because the plaintiffs had waited too long before filing their claims.

Nova Scotia Sexual Abuse Claims Barred by Statute: Breach of Fiduciary Duty Claims can Proceed

However, Justice Goodfellow confirmed that the claim for breach of fiduciary duty was not barred by statute and allowed the breach of fiduciary duty claims to continue.

The Nova Scotia Court of Appeal confirmed Justice Goodfellow’s decision. Today the Supreme Court of Canada upheld the decision of the Nova Scotia Court of Appeal and dismissed the plaintiffs' appeals. The Court also ordered the plaintiffs to pay the defendants’ cost of the appeal.

Why is it Important?

This decision is important to survivors of sexual abuse because it shows that defendants can successfully defend these claims even before the case gets to trial by arguing that the plaintiff waited too long to file their lawsuit.

As a result of this decision, survivors can expect defendants to spend a great deal of time examining the plaintiff’s past medical and counseling records to see if the survivor ever disclosed the abuse to anyone before they filed their lawsuit. If so, how long did they wait before getting legal advice?

Get Legal Advice as Soon as Possible

The fact is that no matter how difficult it is for survivors of sexual abuse to move forward with these types of claims, it is important that they get proper legal advice as soon as possible about their rights because a survivor’s right to receive fair compensation may be eliminated by a statute of limitation if the survivor waits too long before taking steps to pursue a compensation claim.

Continue reading "Statute of Limitations in Sexual Abuse Claims: Supreme Court of Canada" »