Statute of Limitations in Canadian Sexual Abuse Claims
Our experiences play a big role in shaping our mental health and well-being throughout our lives. Sexual abuse, during childhood or adulthood can leave mental scars that can remain with us for a very long time, affecting how we interact with the world around us.
Recently, Provincial governments across Canada have made a push to ensure that survivors of sexual abuse have more access to justice without having their claims barred because they were unwilling, or unable, to come forward until many years after their abuse.
Previously, limitation periods prevented access to justice for survivors of sexual abuse whose claims were not filed within the “Limitation Period”. A Limitation Period is a deadline when a lawsuit must be filed. Once a Limitation period runs out or expires, the plaintiff may be prevented from being able to file a compensation claim.
The courts, and provincial governments, have recognized that survivors of sexual abuse may be unable to come forward to file a claim due to guilt, fear, shame, the psychological consequences of the abuse and even a lack of understanding that they were victims of sexual assault, especially if they were very young when they were assaulted.
What is a Statute of Limitations for?
The theory behind a Statute of Limitation that sets a deadline on filing a claim is that plaintiffs who have a valid cause of action should be encouraged to pursue the claim with reasonable diligence. The idea is that if there is undue delay, evidence may be lost that makes it more difficult to defend a claim.
Statute of Limitations for sexual abuse in Canada
A pivotal case for abuse survivors was the 1992 decision of the Supreme Court of Canada in M.(K.) v. M.(H.), in which the appellant was a victim of incestuous sexual abuse by her father. While she did make efforts to disclose the abuse throughout her childhood, it was only when she attended a support group in her adult years that she realized that her psychological problems as an adult were the result of the incest.
In 1985, at the age of 28, the appellant sued her father for damages arising from incest and for breach of a parent’s fiduciary duty. The jury found that her father had sexually assaulted his daughter and assessed damages of $50,000.
The judge ruled, however, that the action was barred by the Limitations Act. The Ontario Court of Appeal dismissed an appeal from the trial judge’s ruling. One of the major factors discussed by the court was the reasonable discoverability rule, which states that the limitations period should begin to run only when the plaintiff/victim has a substantial awareness of the harm and its likely cause.
The Supreme Court of Canada upheld the legal principle that the limitation period for sexual abuse claims does not begin to run until the victim is aware of the nexus or connection between the abuse and the effects of the abuse.
In New Brunswick, a case was filed in 2012 by a man who claimed to be regularly sexually assaulted by his neighbour when he was 12 years old, from 1977 to 1979. It was not until 2003 that the plaintiff made the decision to report the abuses to the police, at the age of 39. The plaintiff read a victim impact statement at the defendants’ trial in 2003.
The plaintiff’s evidence was that his reason for not coming forward for all those years was that he felt uncomfortable when he was in the company of his friends from his hockey and baseball days. He did not tell them about the abuse because he felt ashamed. The previous Limitations Act had a limitations period of six years or two years from the date when such a person becomes of full age, to file a claim for sexual assault.
The defendant argued that based on the provisions of the Act, the plaintiff’s claim should be dismissed. Since the plaintiff was a minor at the time at which he was abused, the plaintiff had until the age of 25 years to bring a claim against the defendant.
The court ruled that because the plaintiff was aware of the abuse and the connection between the abuse and the harm he had suffered, the Limitation Period had run out and the claim was statute barred.
What is the New Nova Scotia Limitations of Actions Act?
In Nova Scotia, the new Limitations of Actions Act provides that claims in relation to an assault, battery or misconduct of a sexual nature are not subject to any limitation periods, either before the Act comes into force or following its proclamation. Victims of sexual misconduct are not expected to recognize the wrong that has happened to them nor can they bring claims within a limitation period due to the nature of sexual misconduct and its long-term psychological and physiological consequences.
Under the former Limitations Actions Act, victims were protected by suspending the concept of reasonable discoverability while the victim was incapacitated by the effects of the abuse. The limitation period did not begin until the victim was reasonably aware, which presented a greater challenge.
In some Canadian provinces, amendments have been made to eliminate limitation periods for sexual misconduct. However, the amendments do not include cases that occurred before the enactment of the new Act.
Some provinces like Ontario that do allow the Act to be enforced for cases of sexual misconduct that occurred prior to the proclamation of the new Act, may still apply all the former limitations periods and exemptions if such a case had already been brought to court before the proclamation and the case had no further appeals, or if the parties had already reached a legally binding settlement.
Contact a Trusted Sexual Abuse Lawyer
While there may be no limitation period for sexual abuse claims in Nova Scotia, sexual misconduct cases can be very challenging for victims to navigate. For this reason, it is critical that you get legal guidance immediately from our experienced sexual abuse claims lawyers at McKiggan Hebert.
If you are a recent victim of sexual abuse, or a survivor of childhood abuse and have decided to come forward; but you are unsure about whether your claim can be pursued, you can contact us at 902-423-2050 or fill out our online form for a free case evaluation.
|Applies whether the claimant’s right to commence the proceeding was at any time governed by a limitation period pursuant to the former Act or any other Act.
|Newfoundland & Labrador
|Shall apply regardless of when the cause of action arose.
|The operation of any limitation period established by this Act is suspended while the claimant is a minor.
|Whether or not the person’s right to commence the action was at any time governed by a limitation period under this or any other Act
|Will not apply if; (a) was dismissed by a court and no further appeal is available, or (b) was settled by the parties and the settlement is legally binding. 2016, c. 2, Sched. 2, s. 4 (2).
|In Certain Cases
|Period doesn’t run while plaintiff is a minor.