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

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.