Sexual Abuse Claims Blog

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" »

In two related decisions released last month, Justice Walter Goodfellow has ruled that the plaintiffs' claims for compensation for assault and negligence as a result of childhood sexual abuse were statute barred. However, Goodfellow J. allowed the plaintiffs' claims for compensation for breach of fiduciary duty to continue.

Robert Lawrence Borden and Leonard Anthony Smith were both former residents of the Nova Scotia Home for Colored Children.

Borden and Smith have filed a proposed class action on behalf of all former residents of the school seeking compensation for assault and negligence as a result of sexual abuse they allege happened while they were residents were living in the Home for Colored Children.

With respect to Borden’s claim, Justice Goodfellow determined that the "undisputed" facts were that Borden knew what had happened to him was wrong and had provided full disclosure to friends (and strangers) about what had happened to him at the home many years before he filed his lawsuit.

Similarly, Justice Goodfellow determined that the undisputed facts were that Smith was also aware that what had happened to him in the home was wrong and that there was a causal connection with his experiences in the home and the harm that he had suffered. He had clear memories of the abuse which he disclosed to his wife and to an author who was writing a book about the Home. He also disclosed his experiences to a potential employer when applying for jobs as a youth counselor.

Justice Goodfellow determined that the claims for assault and negligence were statute barred under Nova Scotia's Limitation of Actions Act.

However, Justice Goodfellow confirmed that, in accordance with the Nova Scotia Court of Appeal’s decision in Milbury v. Nova Scotia (Attorney General) (another claim arising from the Home for Colored Children) there is no limitation period (at least in Nova Scotia) for a claim for breach of fiduciary duty.

Therefore, all of the claimants’ claims based on assault and negligence were struck as being statute barred. However, the claimants’ claims based on breach of fiduciary duty were allowed to proceed.

Childhood sexual abuse can cause lasting and disabling psychological injuries. However, these decisions point out the difficulty that survivors of childhood abuse may have when seeking access to justice through the courts. The decisions confirm that survivors of childhood sexual abuse should consult with legal counsel as soon as possible when they become aware of the connection between their childhood abuse and the disabling effects of the abuse later in life.

This article is a fascinating (at least to lawyers who represent survivors of sexual abuse) review of the development of the law in the U.K. regarding time limits for filing civil claims for compensation for sexual abuse.

Until recently, I would have said that Canada, and Nova Scotia in particular, had the most liberal time limits for filing civil claims for historical sexual abuse. Based on this article I believe that the U.K. may now have taken the lead in protecting the rights of survivors of childhood sexual absue.

A state legislator wants to eliminate the statute of limitations for sexual abuse lawsuits.

Rep. Gwyn Green (D-Golden) is sponsoring the "Children's Protection Bill." Based on the proposed law, a victim of sexual abuse would be able to sue an organization or an agency if it knew about the abuse and failed to take reasonable steps to prevent the perpetrator from committing the abuse.

In the landmark ruling of the Supreme Court of Canada in M.K. v. M.H. the court ruled that the time limit in historical sexual abuse claims did not start to run until the victim was reasonably capable of discovering the wrongful nature of the abuser's acts and the nexus between those acts and the victim's injuries.

The ruling in M.K. v. M.H. has since been codified in the limitation statutes of all Canadian provinces and territories and is generally refered to as the "discoverability rule".

The proposed Colorado statute seems to go even further than the Canadian discoverability rule. There is no indication that when the victim discovered the effects of the abuse has any bearing on the time limit to bring a claim.

If this is the case, then the statute would be one of the most liberal victim protection laws in North America.

The House of Lords decision extending time limits for filing sexual abuse claims that I posted about yesterday is likely to open the "floodgates" to hundreds of historical sexual abuse claims, according to an article today in the Evening Gazette.

The story reports that:

A landmark legal ruling has opened the floodgates to one of the biggest claims of alleged sexual abuse in history.

The Catholic Diocese of Middlesbrough is set to be sued by 140 men over alleged physical and sexual abuse suffered while in care.

The House of Lords decision gives broad discretion to judges to allow historical claims for sexual abuse, even when time limits for filing the claims have passed.

The ruling appears to go even further than the historic decision of the Supreme Court of Canada in M.K. v. M.H. which ruled that historical sexual abuse claims, although subject to limitations legislation, did not accrue until the plaintiff was reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and the plaintiff's injuries.

The Court clarified that the "reasonable discoverability rule" means that in cases of historical sexual abuse, the limitations period should begin to run only when the plaintiff has a substantial awareness of the harm and its likely cause.

The House of Lords decision means that the courts in the U.K. have gone even further than the courts in Canada and the United States to protect the rights of victims of childhood sexual abuse.

In an interesting decision released this week in the U.K. the House of Lords extended the time limit for filing a claim for compensation for sexual abuse.

In the U.K. the general rule is that the period of limitation for an action in tort is six years from the date on which the cause of action accrues. Claims for “damages for negligence, nuisance or breach of duty", causing personal injuries have a limitation period of three years from either the date when the cause of action accrued or the “date of knowledge” (similar to the Canada's "discoverability" rule).

The decision appears to grant broad discretion to judges in the U.K. to extend time limits for filing claims for compensation for sexual abuse.

Personally, my view is that there should be no time limit for filing claims for compensation for sexual abuse. In my experience representing survivors of childhood sexual abuse I have found that many (if not most) survivors do not disclose their experiences until later in life. Usually after the survivor has gone through years of counselling or therapy.

In Nova Scotia, this reality is recognized by Section 2(5) of our Limitation of Actions Act which says:

(5) In any action for assault, menace, battery or wounding based on sexual abuse of a person,

(a) ... the cause of action does not arise until the person becomes aware of the injury or harm resulting from the sexual abuse and discovers the causal relationship between the injury or harm and the sexual abuse; and

(b) notwithstanding subsection (1), the limitation period ...does not begin to run while that person is not reasonably capable of commencing a proceeding because of that person's physical, mental or psychological condition resulting from the sexual abuse.