Limitation of Actions Consultation - Law Commission

It is also provided that
unless the contrary is proved, a person with a claim based on a sexual
assault shall be presumed to have been incapable of commencing the
proceeding earlier than it was commenced. 172
12.121 Newfoundland also protects victims of sexual abuse, both by providing that in
some circumstances there is no limitation period for actions arising from sexual
misconduct, 173
and otherwise by extending the concept of disability to include
those who are “for the purpose of an action for misconduct of a sexual nature not
under section 8(2), incapable of commencing that action by reason of his or her
mental or physical condition resulting from that sexual misconduct.” 174
12.122 Alberta gives limited protection to victims of sexual abuse by providing that
minors are deemed to be disabled by minority in the case of actions against a
parent, or, in the case of actions relating to sexual abuse or sexual misconduct, in
actions against any person. 175
This relieves victims of sexual abuse from the
presumption that minors in the actual custody of a parent or guardian are not
under a disability, 176
but does not extend the disability beyond majority.
12.123 We have recently reviewed generally the concept of “mental disability” 177
in the
context of an examination of the ways in which decisions may lawfully be made on
behalf of those unable to make decisions for themselves. 178
It was recommended
that the focus should shift from “mental disability” to a “lack of capacity”, which
could have causes other than mental disability. It was recommended that the
following definition should apply:
(1) A person is without capacity if at the material time:
172 Ontario Limitations (General) Bill 1992, clause 9(3).
173 Under s 8(2) of the Newfoundland Limitations Act 1995, where “a person who commits
misconduct of a sexual nature against another person
(a) is in a position of trust or authority with respect to that other person;
(b) has a financial, emotional, physical or other dependent relationship with the other
person; or
(c) has charge of the other person,
the person against whom the sexual misconduct occurred is not governed by a limitation
period and may bring an action arising from that sexual misconduct at any time.”
174 Newfoundland Limitations Act 1995, s 15(5)(c).
175 Limitations Act c L-15.1 1996 s 5, as amended by the Justice Statutes Amendment Act
1997 (given the Royal Assent on 18 June 1997, but not yet proclaimed).
176 See n 201 below.
177 Used instead of “mental disorder” in part because of the derogatory implications felt to be
attached to the concept of a “disorder” and to distinguish the review from the language of
the Mental Health Act 1983. See Mental Incapacity (1995) Law Com No 231, paras 3.10 -
3.12.
178 See Mental Incapacity (1995) Law Com No 231.
294