Sexual Abuse Claims Blog

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.