Limitation of Actions Consultation - Law Commission

13.25 We are therefore provisionally of the view that claims by victims of child
sexual abuse should continue to be subject to a limitation period. We ask
consultees whether they agree and, if not, to say why not.
(3) Approaches to Dealing with Sexual Abuse
13.26 If it is accepted that a limitation period should apply to claims by victims of child
sexual abuse, it must then be asked whether such claims require a separate regime,
or can properly be dealt with under the core scheme we propose.
(a) Separate regime
13.27 As was noted above, the Ontario Limitations (General) Bill 1992, which
incorporated the recommendations of the Ontario Limitation Act Consultation
Group in their 1991 report, provided that in certain instances of sexual assault
there should be no limitation period. 33
In addition, it also provided that in sexual
assault claims outside relationships of trust or dependency and for claims of nonsexual
assault in relationships of trust and dependency, a rebuttable presumption
should be created to the effect that the plaintiff was “incapable of commencing the
proceeding because of his or her physical, mental or psychological condition” until
the proceeding was commenced. 34
In relation to the presumption the Group
said: 35
In such circumstances, it does not seem unreasonable to assume that
most victims will be unable to commence civil proceedings within two
years of the attack. The focus should be on the validity of the claim,
and not on the condition of the plaintiff. Thus, instead of compelling
every victim to prove inability to pursue the claim, the limitation
period should be postponed unless the defendant can prove that the
victim was capable of bringing the proceedings within the relevant two
year limitation period [that is the primary limitation period
recommended by the group].
The class of defendants who would have to prove the plaintiff’s
capability is drawn more narrowly than in the cases of sexual assault in
[relationships of trust or dependency] because the defendant will be
dealing with claims in respect of any assault. The broad compass of
assault includes not only the most vicious or persistent beating but also
the non-consensual administration of medical treatment and a shove
by a teacher or police officer. It would be unduly onerous for a doctor
also been characterised as “disappointing” by Elizabeth Palmer in a brief report on the case
[1997] EHRLR 164.
33 See further para 13.20 above.
34 See Limitations Bill 1992 cl 9(3). It was intended that these provisions be retrospective:
Ontario Report (1991) p 51. In light of this Report, British Columbia and Saskatchewan
abolished limitation periods for sexual misconduct where the plaintiff was a minor when the
misconduct occurred. Prince Edward Island removed all limitation periods where injury
occurred due to sexual misconduct in relationships of intimacy or dependency. See Law
Reform Commission of Western Australia, Report on Limitation and Notice of Actions, Project
No 36 - Part II (1997), para 9.40.
35 Ontario Report (1991), pp 31 - 32.
331