Articles Posted in Time Limits

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Nova Scotia has proclaimed a new Limitation of Actions Act. That is the law that establishes the statute of limitation period (how long a plaintiff has to sue) for various claims.

There are a number of important changes in the new statute of limitations. Specifically it shortens the limitation period for many claims to two years.

Court still has discretion to extend limitation periods

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Jian Ghomeshi criminal charges

There are few Canadians that haven’t heard about the sexual assault allegations being made against former CBC host Jian Ghomeshi. Two weeks ago Ghomeshi was charged with four counts of sexual assault and one count of physical assault. To date nine women have come forward stating they were victims of sexual or physical assault by Ghomeshi. Some of the allegations date back a decade or more.

Bill Cosby facing sex assault allegations but no criminal charges

South of the border about 20 women have come forward claiming that they were sexually assaulted by Bill Cosby.

Cosby has faced allegation of sexual assault in the past. In 2005 a Canadian woman told Canadian Police she had visited Cosby at his Philadelphia mansion. Cosby gave her medication which she said made her dizzy and pass out. She claimed when she woke up her bra was undone and her clothes were in disarray. At the time, Police found “insufficient credible and admissible evidence” to support criminal charges.

This week prosecutors in California decided not to lay criminal charges against Cosby based on allegations he he sexually assaulted a 15 year old girl.

So why is Jian Ghomeshi facing criminal charges in Canada while Bill Cosby is unlikely to face charges anywhere in the United States?

These two cases highlight the difference in the laws (both criminal and civil) relating to sexual assault.

American Statue of Limitations on criminal charges

A “Statute of Limitation” is a law that sets a time limit on how much time one has to file a law suit or press criminal charges.

In the United States there are statutes of limitations for most criminal charges. In other words, if a sexual assault victim does not swear out a criminal complaint within a certain period of time after the assault the ability to lay criminal charges is barred.

For example, under Nevada law sexual assault victims must lay a charge within 4 years of the assault. In New York sexual assault charges must be laid within 5 years of the assault. In California, where the most recent allegations arise, the time limit for felony sex crimes in 1974 was 3 years from the date of the offence.

In other words, if the victim was 15 years old, she had to go to police to lay charges before she turned 18 years old.

Canada has no statute of limitations on serious criminal charges.

On the other hand, in Canada, there is no time limit for filing charges of a serious criminal nature. So charges of serious sexual assault have no statute of limitations.

As a result, Ghomeshi is now facing sexual assault charges for acts alleged to have happened almost ten years ago.

Difference for civil suits for compensation

There is also a big difference in the laws relating to civil suits for compensation for harms suffered as a result of sexual assault.

In the United States, like criminal charges, civil law suits for sexual assault have specific and sometimes very short statutes of limitations. So if a sexual assault victim wants to pursue their abuser (or the institution that employed the abuser) for compensation they are not able to do so unless they bring forward their claim within a few years of the assault.

Time limits on claims unfair to abuse survivors

This can be problematic for many victims. For people who have been subjected to severe sexual assault the psychological consequences can be devastating. Sexual assault victims may simply be psychologically incapable of filing a civil suit as a result of the harm they suffered because of the sexual assault.

Supreme Court of Canada changed the rules for abuse survivors

In Canada, the laws relating to filing sexual abuse compensation claims changed dramatically as a result of a 1992 court decision known as M(K) v. M(H).

In that case the Supreme Court of Canada ruled the time limit for filing a civil suit did not begin to run until the sexual assault victim discovered the connection between the assault and the harms they experienced later in life.

The Supreme Court of Canada and the Canadian Criminal Code recognize that survivors of sexual assault can feel a paralyzing sense of shame and embarrassment. Sometimes the assaults create such a powerful lack of trust that they are fearful of going to the police or talking to a lawyer.

In many cases survivors of sexual abuse suffer serious psychological problems that effectively disable them. Survivors may not realize that the problems they are suffering later in life (alcoholism, depression, problems with interpersonal relationships, anxiety, and post-traumatic stress) are connected to sexual assaults they experienced earlier in their life.

Since the M(K) v. M(H) case, most provinces in Canada have changed their Limitations of Actions Acts to allow victims to sue for compensation for sexual abuse years (and sometimes decades) after the assault occurred.

Most provinces have no limitation period for sexual assault claims. Some provinces apply the “discoverability rule” as described in the M(K) v. M(H) case.

Nova Scotia to change Statute of Limitations for sexual assault claims

Nova Scotia is currently looking at changing its Limitations of Action Act to eliminate all limitation periods for sexual assault compensation claims.

As an advocate for surviors of childhood sexual abuse I fully support the proposed changes to Nova Scotia’s Limitation of Actions Act. But the changes may not go far enough.

Some survivors want the proposed legislation to be made retroactive.

The proposed limitation period, when it is proclaimed into effect, will apply to anyone who brings forward a claim after the new law is in place.

But what about sexual abuse survivors who have already come forward and may have had their claims statute barred?

If the province of Nova Scotia is recognizing that there shouldn’t be a time limit on when sexual abuse survivors can file their claim, shouldn’t that apply to all sexual abuse survivors?

What do you think?

Breaking the Silence

Many survivors suffer in silence thinking that they are the only one who was victimized by their abuser. In many cases when one survivor has the courage to break their silence and come forward to lay criminal chargers or file a civil suit it sheds light on the abusers activities and other victims, who thought they were alone, take courage and are able to come forward to seek accountability.

Sexual assault survivors often carry a crushing guilt throughout their lives blaming themselves for what happened to them. Reaching out to talk to someone; be it a friend, a family member, a health care professional, a police officer, or a lawyer, is for many survivors the first and hardest step in their healing journey.
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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.

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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.
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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.
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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.

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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.

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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.

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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.

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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.