Limitation of Actions Consultation - Law Commission

Central Trust Co v Rafuse, 301
a professional negligence case. Since then City of
Kamloops v Nielsen and Central Trust Co v Rafuse have been widely followed by
courts in Canada. 302
10.97 One of the most problematic areas of latent damage is that of sexual abuse, where
there can be a very long delay between the abusive acts and the manifestation and
understanding of the effects of those acts, for example as psychiatric illnesses. 303
Some jurisdictions have legislated specifically on claims for sexual abuse. In British
Columbia, Newfoundland and Saskatchewan there is no limitation period at all for
a cause of action based on misconduct of a sexual nature. 304
In Ontario the
Limitations Act Consultation Group appointed by the Attorney-General
recommended that limitation periods should be abolished in sexual abuse
claims. 305
In Nova Scotia a cause of action for various types of trespass to the
person will be deemed not to have arisen until the plaintiff is aware of the harm
and of its causal relationship with the abuse, and time will not run while the
plaintiff is not reasonably capable of commencing proceedings because of physical,
mental or psychological conditions resulting from the abuse. 306
10.98 But the Canadian courts have also taken an active role in dealing with this
problem. In KM v HM 307
the plaintiff had been abused during the period from
1964 to 1974, between the ages of 8 and 17. She later married, but her marriage
failed in 1983. She started to attend meetings of a self-help group in 1984 and
commenced therapy in 1984, and it was only then that she realised that the
psychological damage she had suffered was due to the abuse. She commenced
proceedings in 1985. The Supreme Court of Canada held that under the relevant
301 (1986) 37 CCLT 117.
302 See, eg, Consumers Glass Co Ltd v Foundation Co of Canada Ltd (1985) 20 DLR (4th) 126
(Ont CA); Desormeau v Holy Family Hospital (1989) 76 Sask R 241 (Sask CA). The courts
in Alberta refused to apply a discoverability test until one was enacted in the Limitations
Act 1996: see, eg, Costigan v Ruzicka (1985) 13 DLR (4th) 368 (Alta CA); Fidelity Trust Co
v Weiler [1988] 6 WWR 427 (Alta CA).
303 See generally paras 13.17 - 13.37 below.
304 British Columbia Limitation Act, RSBC 1979, s 3(3)(k); Newfoundland Limitations Act
1995, s 8(2); Saskatchewan Limitation of Actions Act, RSS 1978, s 3(3.1).
The Newfoundland provision requires that, for the limitation period not to apply, the
defendant must be under the care or authority of the plaintiff, or be financially, emotionally
or otherwise dependent on the plaintiff, or be the beneficiary of a fiduciary relationship with
the plaintiff.
The Saskatchewan legislation is limited to claims for trespass to the person, assault and
battery, and so would, eg, not relate to an action in negligence against a non-abusing
parent, but it also excludes any limitation period for any claims for trespass to the person,
assault and battery where at the time of the injury there was an “intimate and personal
relationship” or the plaintiff was in a state of dependency with regard to the person who
caused the injury.
305 Recommendations for a New Limitations Act Report of the Limitations Act Consultation Group
(1991) pp 17 - 21. Concern at the state of the law of limitations in sexual abuse cases was
one of the main reasons behind the setting up of the Group, although the common law has
developed since then so as to lessen those concerns: see para 10.98 below.
306 Nova Scotia Limitation of Actions Act, RSNS 1989, s 2(5).
307 (1992) 96 DLR (4th) 289 (Sup Ct of Canada).
216