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.