Limitation of Actions Consultation - Law Commission

or police officer to prove 10 years after the event that the plaintiff was
in a position to commence the proceedings two years earlier.
However, in the case of sexual assault, or a non-sexual assault of a
person in a personal and intimate relationship or a relationship of
dependency, the defendant will have direct knowledge of the
circumstances and will not have significant problems about the loss of
evidence.
13.28 The use of the presumptions recommended by the Ontario Limitations Act
Consultation Group was considered in KM v HM 36
which was decided after the
Group’s report. Two members of the majority in that case were against the use of
presumptions. In giving the judgment for the majority, La Forest J held that there
was a presumption that a victim of incest will only discover the connection
between the injuries and the abuse when they have started therapy. Two members
of the Court, Sopinka and McLachlin JJ, distanced themselves from this reasoning
preferring that the burden of proof be left as it is with the issue being decided as a
matter of fact in each case. 37
13.29 The Western Australia Law Reform Commission 38
also rejected the use of a
presumption noting that it would make it necessary to inquire when the plaintiff
recovered which in turn focuses on the position of the plaintiff rather than the
alleged misconduct of the defendant. They rejected the Ontario proposals for
special provisions to deal with sexual abuse. Instead the two general limitation
periods they proposed would apply, namely, a three year period running from the
date on which the plaintiff first acquired or in his or her circumstances ought to
have acquired, the necessary knowledge together with a fifteen year long-stop
running from the date on which the claim arose, that is, the date of the abuse.
There would also be a judicial discretion to extend the period.
13.30 Our provisional view is that a separate regime for sexual abuse should only be
adopted if such claims cannot be properly dealt with by our core regime.
Minimising the number of exceptions to our core regime would assist in achieving
a major aim of this review, that is, to reduce the categories and variances in
limitations law and to promote uniformity and reduced technicality. We therefore
now turn to consider how our core regime would apply to actions by victims of
child sexual abuse.
(b) Applying our core regime
(i) The initial limitation period
13.31 A key proposal of our core regime is that the initial limitation period should run
from the date when the plaintiff knows the facts constituting the cause of action
(that is, he or she knows the injury suffered, and that it was attributable to the
conduct of the defendant), the identity of the defendant, and that the injury is
36 (1992) 96 DLR (4th) 289.
37 (1992) 96 DLR (4th) 289, 338 per Sopinka J and 339 per McLachlin J. A similar approach
was followed in S v G [1995] 3 NZLR 681, discussed in para 10.75 above.
38 Report on Limitation and Notice Actions, Project No 36 Part II (1997), para 9.45.
332