Incest Survivor Waits Too Long to Sue – Claim Struck-Out

by John McKiggan

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 (877) 423-2050.

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