SCC File No - Wagners

IN THE SUPREME COURT OF CANADA
(On appeal from the Court of Appeal of Nova Scotia)
SCC File No.:
BETWEEN:
ROBERT LAWRENCE BORDEN
APPLICANT
(Appellant)
-and-
THE ATTORNEY GENERAL OF NOVA SCOTIA, REPRESENTING HER MAJESTY THE
QUEEN IN RIGHT OF THE PROVINCE OF NOVA SCOTIA; AND THE CHILDREN’S AID
SOCIETY OF HALIFAX, A BODY CORPORATE; AND THE NOVA SCOTIA HOME FOR
COLORED CHILDREN, A BODY CORPORATE
RESPONDENT
(Respondent)
APPLICATION FOR LEAVE TO APPEAL
(Robert Lawrence Borden, Applicant)
(Pursuant to Rule 25 of the Rules of the Supreme Court of Canada)
Raymond F. Wagner
Michael Dull
WAGNERS LLP
3rd Floor, Pontac House
Historic Properties
1869 Upper Water Street
Halifax NS B3J 1S9
Telephone: (902) 425-7330
Fax: (902) 422-1233
E-mail: raywagner@wagnerlaw.ca
Marie-France Major
LANG MICHENER LLP
300-50 O'Connor St.
Ottawa, ON, K1P 6L2
Phone: (613) 232-7171 Ext:131
Fax: (613) 231-3191
Email: mmajor@langmichener.ca
Ottawa Agent for Counsel for the Applicant
Leonard Anthony Smith
Counsel for the Applicant Leonard Anthony
Smith

John Kulik, Q.C.
MCINNES COOPER
1969 Upper Water St., Suite 1300
Halifax, NS B3J 2V1
Counsel for the Respondent The Nova
Scotia Home for Colored Children
Michael Wood, Q.C.
BURCHELLS
1801 Hollis Street, Suite 1800
Halifax, NS B3J 3N4
Counsel for the Respondent The Children`s
Aid Society of Halifax
Terry Potter
DEPARTMENT OF JUSTICE
5151 Terminal Road, 4 th Floor
Halifax, NS B3J 2L6
Counsel for the Respondent The Attorney
General of Nova Scotia
S. Raymond Morse, Q.C.
PATTERSON LAW
10 Church Street
P.O. Box 1068
Truro, NS B2N 5B9
Counsel for the Respondent The Children`s
Aid Society of Colchester County

TABLE OF CONTENTS
Tab
Page
1. Notice of Application for Leave to Appeal ............................................................
2. Certificate of Counsel ..............................................................................................
3. Judgments and Reasons for Judgments .................................................................
A. Judgment of the Supreme Court of Nova Scotia,
dated April 23, 2009 ............................................................................................
B. Order of Supreme Court of Nova Scotia, dated August 13, 2009 .......................
C. Judgment of the Court of Appeal of Nova Scotia,
dated February 23, 2010 ......................................................................................
D. Order of the Court of Appeal of Nova Scotia,
dated February 23, 2010 ......................................................................................
4. Memorandum of Argument
PART I — STATEMENT OF FACTS ........................................................................
A. Nature of the Case: When does the Clock Tick in Sexual
Abuse Cases? .......................................................................................................
B. Brief Chronology .................................................................................................
Robert Borden – A Resident and Victim of the Nova Scotia Home for
Coloured Children at Two Years Old ............................................................
Sexual and Physical Abuse Continues in Foster Home Placement By
Children’s Aid Society ...................................................................................
Prolonged Abuse Has Profound Impact ..............................................................
Robert Remains Unable to Seek Therapy ............................................................
Robert Commences An Action .............................................................................
Meets with Dr. Hayes – Diagnosed with Post-Traumatic Stress and a
Major Depressive Disorder ...........................................................................
Dr. Hayes Report – Robert Not Capable of Commencing an Action
Before He Did ................................................................................................
The Home and Truro Agency Attempt to Block Robert’s Claim – Argue
Statute of Limitations has Passed ..................................................................
Trial Decision – Dr. Hayes’ Report Dismissed; Robert Knew ‘the Abuse
He Suffered Was Wrong’; All Causes of Action Dismissed ...........................
Court of Appeal Decision – Appeal Dismissed; No Injustice; Would
‘Stretch Credulity’ To Suggest Robert Made Abuse Connection
Later in Adulthood .........................................................................................
LM - #50041344v1

ii
PART II — POINTS IN ISSUE ....................................................................................
Is discoverability infused with a substantive knowledge of the harm
done? Does a superficial, generalized knowledge, on the other hand,
insulate and protect pedophile predators? Does the same standard of
discoverability in cases of incest apply to cases of sexual abuse when a
child is the ward of a Province? ..........................................................................
PART III — STATEMENT OF ARGUMENT...........................................................
A. Sexual Abuse – An Issue of National Importance ...............................................
B. Historical Racism in Nova Scotia – the “Mississippi of the North” ....................
C. Incest and Wardship Sexual Abuse – Cut from the Same Cloth? The
Comparable Case of M.(K.) v. M.(H.)..................................................................
D. Discoverability – When Does the Clock Start Ticking? ......................................
E. A Perversion of Purposes – Statutes of Limitations and a Short-sighted
Application of Discoverability .............................................................................
F. The Need for Fair Play – Why Revictimize the Victim? .....................................
G. Importance of Addressing Myth and Stereotypes – Sexual Abuse is
More Than Just a „Self-Esteem‟ Issue .................................................................
H. Children Are “Precious” – Or Are They? ............................................................
PART IV — SUBMISSIONS ON COSTS ...................................................................
PART V — ORDER SOUGHT ....................................................................................
PART VI — TABLE OF AUTHORITIES ..................................................................
PART VII — STATUTORY PROVISIONS ...............................................................
5. Documents Relied Upon
A. Originating Note, dated March 27, 2002 .............................................................
B. Amended Statement of Claim, dated March 27, 2002 .........................................
C. Answer to Demand for Particulars, 2004 .............................................................
D. Answer to Demand for Particulars, 2004 .............................................................
E. Answer to Interrogatories, 2006. .........................................................................
F. Independent Psychological Assessment Report,
dated March 4, 2009 ............................................................................................
6. Authorities
LM - #50041344v1

iii
Cases
A. Barton v. Sobeys Group Inc., [2009] N.S.C.C. 75 ...............................................
B. M.(K.) v. M.(H.), [1992] 3 S.C.R. 6 .....................................................................
C. Peixeiro v. Haberman, [1997] 3 S.C.R. 549 ........................................................
D. R. v. A.G., [2000] 1 S.C.R. 439 ............................................................................
E. R. v. L. (D.O.), [1993] 4 S.C.R. 419 ....................................................................
F. R. v. L. (W.K.), [1991] 1 S.C.R. 1091 ..................................................................
Remarks
Articles
G. Right Honourable Beverley McLachlin, Chief Justice of Canada,
“Protecting Our Children: The Law Takes Note” ..............................................
H. Husser, Amy, “Africville receives long-awaited apology to close ‘dark
chapter’ in Halifax history”, Canada.com, February 24, 2010 ...........................
I. MacDonald, Michael, “Halifax mayor apologizes to Africville
residents”, The Star, February 25, 2010 ..............................................................
LM - #50041344v1

"
PART I - STATEMENT OF FACTS
A: Nature of the Case: When does the Clock Tick in Sexual Abuse Cases?
1. This case is about a novel, unresolved issue at the Supreme Court of Canada. It is about
the procedural hurdles placed in front of victims of childhood sexual abuse who try to access
Canada's courts.
2. This case IS also about whether Canada should allow institutions to insulate their
employed sexual abuse perpetrators, by taking advantage of a victim's inability to fully realize
the psychological damage he or she has suffered.
3. The victim is by definition damaged - when that victim because of the damage comes to
realize what that damage was - can defendants juridically say:
• yes, we damaged you;
• but you woke up to that damage too late;
• go back to sleep, forget about it.
4. It's the direct legal equivalent of someone being so seriously hurt in a MVA they're put
into a coma, and when they wake up two years (or six years, depending on the limitation period)
later, the other driver says "Thank God you woke up after that limitation period was done".
5. In other words, to what extent can a standard limitations defence stand against nonstandard
civil conduct, in this case, historical sexual abuse.
B. Brief Chronology
6. A brief chronology of facts is as follows:
Robert Borden - A Resident and Victim of the Nova Scotia Home for Coloured Children at
Two Years Old
7. Robert Borden is born on July 14, 1964. He becomes a resident ofthe Nova Scotia Home
for Coloured Children ("Coloured Children Home") at 2 years old. He stays at the Coloured

2
Children Home from the ages of 2 to 9 years old. After staying in a foster home, he is transferred
back to the Coloured Children Home at age 16 through 21.
Ref: Summary Judgment at para. 6 [Tab 3A]
8. While living in the Home, Robert is the victim of sexual and physical abuse, including:
• Acts of Violence - Severely beaten by staff and residents; forced to participate in
fights organized by staff;
• Sexual Assaults by Staff - Forced to kiss male staff member Van Tolliver, who
frequently tries to put his tongue in Robert's mouth; Robert's penis is grabbed by
Fred Sparks, who threatened to 'tear it off; and
• Sexual Assaults by Residents - At the age of 7 is forced by a 17 year old male
resident, Frankie Jackson, to fondle Frankie, take off his own clothes, watch
Frankie masturbate and let him (Frankie) ejaculate on Robert's naked body;
violently forced by a female resident, Carmen Desmond, on several occasions to a
bathroom where, at the age of 5, Robert is forced to perform and submit to sexual
acts, including having his face forced into Carmen's vagina.
Ref: Statement of Claim, para. 18 and 19 [Tab 5B]
Ref: Particulars, 2004 at 2 [Tab 5D]
Ref: Particulars, 2004 at 12 [Tab 5C]
9. Robert reports abuse to staff members at the Coloured Children Home. Instead of dealing
with it, Robert is told to "stop lying and to behave".
Ref: Statement of Claim, para. 20 [Tab 5B]
Ref: Particulars, 2004 at 6 [Tab D]
Sexual and Physical Abuse Continues in Foster Home Placement By Children's Aid Society
10. From the ages of 9 to 16, Robert lives in a foster home with a Mr. and Mrs. Bright. He is
placed there by the Children's Aid Society. The physical and sexual abuse continue, including:
• Excessive Beatings - Beatings often to the point of unconsciousness; a broken
wrist caused by a beating by Mrs. Bright with a broom handle;
• Enslavement -Menial labour and servitude at the age of 7, Robert is forced to
perform hard labour and regularly whipped and beaten for taking breaks; and
• Sexual Assaults - Being forced to take showers with Mr. Bright where he would
force Robert to stand facing his (Mr. Bright's) erection and then slap Robert in the
face with his erect penis.
Ref: Statement of Claim, para. 22 [Tab 5B]
Ref: Dr. Hayes' Report at p. 4 [Tab 5F]

3
Prolonged Abuse Has Profound Impact
11. Robert faces daily struggles as a result of his experiences at the Coloured Children Home
and with his foster family. For example:
• unable to interact with his children as a normal parent - he is unable to bathe his
children and has problems showing them physical affection;
• cannot maintain relationships with women - he harbors thoughts that everyone is
"perverted";
• cannot hold down a regular job - he has problems coping with people in authority
positions; and
• difficulty sleeping, has nightmares about abusing his own children and suffers low
self-esteem.
Ref: Interrogatories, 1 [Tab 5E]
Robert Remains Unable to Seek Therapy
12. Like many men who are sexually victimized as boys, Robert does not feel ready for
therapy. The scars of the past still feel fresh. As a result, he has been unable to substantively
address the abuse he experienced as a child. He feels that he does not fully understand the causal
relationship between the current psychological problems he is suffering from and the abuse he
experienced.
Ref: Interrogatories at 2 [Tab 5E]
13. Robert keeps his darkest memories of abuse "locked up inside". He struggles with
feelings of powerlessness and has "difficulty speaking about" his experiences as a child.
Ref: Interrogatories, at 10 [Tab 5E]
Robert Commences An Action
14. Robert commences an action against the Nova Scotia Home for Colored Children, the
Attorney General of Nova Scotia and the Children's Aid Society and Family Services of
Colchester County ("Truro Agency") on March 1, 2001. He alleges vicarious liability for assault,
sexual assault, negligence and breach of fiduciary duty for incidents having occurred while he
was a ward of Nova Scotia.
Ref: Summary Judgment, at 2 [Tab 3A]

4
Meets with Dr. Hayes - Diagnosed with Post-Traumatic Stress and a Major Depressive
Disorder
15. In an attempt to address his psychological problems, Robert meets with an expert clinical
psychologist, Dr. Hayes, in March, 2009. He undergoes a series of nine psychological tests
frequently used for psychiatric patients in order to make a diagnosis.
Ref: Dr. Hayes Report, p. 29[Tab 5F]
16. Dr. Hayes finds that Robert suffers from flashbacks of traumatic experiences from the
Coloured Children Home in excess of five times a week. Dr. Hayes also finds that Robert
satisfies the DSM-IV -TR criteria for Post-Traumatic Stress Disorder. He also suffers from a
Major Depressive Disorder.
Ref: Dr. Hayes Report, p. 16 and 17,23 [Tab 5F]
Dr. Hayes Report - Robert Not Capable of Commencing an Action Before He Did
17. Dr. Hayes drafts an official report. He finds that the issues Robert is dealing with are
psychologically complex. While he would understand as a child that his treatment was wrong, he
did not make the connection between his problems with relationships, work, distrust and low
self-esteem and the abuse he suffered at the Home.
Ref: Dr. Hayes Report at p. 23 [Tab 5F]
18. Dr. Hayes notes that this connection has "not been fully realized", as Robert blamed
himself and assumed that his failures were as a result of his own personal inadequacies. Only
now is he beginning to appreciate the connection between his experiences of being victimized
and his personal problems.
Ref: Dr. Hayes Report, p. 24 [Tab 5F]
19. Dr. Hayes concludes that due to Robert's "learned helplessness", chronic depression and
post-traumatic stress it would be "impossible for him" to have pursued any action independently
at an earlier time.
Ref: Dr. Hayes Report, p. 25 [Tab 5F]

5
The Horne and Truro Agency Attempt to Block Robert's Claim -
Limitations has Passed
Argue Statute of
20. Eight (8) years after the action has commenced, in March, 2009, the Horne and Truro
Agency seek summary judgments relating to the allegations of assault, sexual assault and
negligence, which effectively dismiss all causes of action alleged. They request this on the basis
that the claims were brought outside the applicable limitation period.
Ref: Summary Judgment at 2 [Tab 3A]
21. The Truro Agency also seeks to have the claim of breach of fiduciary duty dismissed.
Trial Decision - Dr. Hayes' Report Dismissed; Robert Knew 'the Abuse He Suffered Was
Wrong'; All Causes of Action Dismissed
22. Under section 5 of the Limitation of Actions Act, R.S.N.S. 1989 c. 258, for a cause of
action for assault, battery or wounding based on sexual abuse:
• The action does not arise until the person becomes aware of the injury or harm
resulting from the sexual abuse and discovers the causal relationship between the
injury and the sexual abuse; and
• The 6 year limitation period does not begin to run while the person is not
reasonably capable of commencing a proceeding because of that person's
physical, mental or psychological condition resulting from the sexual abuse.
Ref: Summary Judgment at 9,10 [Tab 3A]
23. The motions judge Goodfellow dismisses all of Dr. Hayes' evidence as "totally without
merit and contrary to undisputed facts". He notes while there is "no doubt that victims of sexual
abuse suffer trauma that often have residue effects ... including low self-esteem", it "cannot be
said that persons with low self-esteem are ... not reasonably capable of commencing a
proceeding" .
Ref: Summary Judgment at 25 and 29 [Tab 3A]
24. The motions judge selectively notes Robert's discovery evidence - evidence, Justice
Goodfellow suggests, that shows an awareness of a causal connection between the injury or harm
suffered and the sexual abuse. This includes:
• Robert remembers the abuse;
• He knew the abuse was wrong;
• Robert spoke about his abuse to a woman named Ann, his friend Denise and his
Reverend in 1986;

6
• He recognizes that he has problems with women, authority and violence; and
• He spoke to a lawyer in 1997 regarding the abuse in the Home.
Ref: Summary Judgment at 33 [Tab 3A]
25. The motions judge emphasizes that Robert knew "at all times" that "the abuse he suffered
was wrong". He relies on this fact as evidence that "Clearly he [Robert] knew at the age of
majority ... that he had been wronged and the cause of harm done to him".
Ref: Summary Judgment at 44 [Tab 3A]
26. The motions judge says Robert was reasonably capable of commencing a proceeding as
early as 1985 when he reached the age of majority. He grants the summary judgments. He also
dismisses the claim against the Truro Agency for breach of fiduciary duty. All causes of action
are dismissed by summary judgment except for breach of fiduciary duty by the Coloured
Children Home.
Ref: Summary Judgment at 55 and 60 [Tab 3A]
Court of Appeal Decision - Appeal Dismissed; No Injustice; Would 'Stretch Credulity' To
Suggest Robert Made Abuse Connection Later in Adulthood
27. The Court of Appeal hears Robert's case along with that of another victim of the
Coloured Children Home, Tony Smith.
Ref: Appeal at 1 [Tab 3C]
28. The Court says it will not interfere with a decision on a summary judgment application
like this one unless there is an error of law resulting in an injustice.
Ref: Appeal at 13 [Tab 3C]
29. The Court concludes that the motions judge correctly applied proper legal principles in
his assessment of evidence and finding that the claims were statute barred because Robert and
Tony were aware of the harm they suffered years before they filed a lawsuit.
Ref: Appeal at 14 [Tab 3C]
30. The Court finds "no error or injustice" in the motions judge's conclusion there was no
genuine issue for trial and that Dr. Hayes' assessment was "completely unsustainable".
Ref: Appeal, at 14, 15 [Tab 3C]

7
31. The Court says that it would "stretch credulity" for Robert and Tony to suggest that only
now were they beginning to understand the connection between the alleged events and the hann
they suffered.
Ref: Appeal at 16 [Tab 3C]
32. The Court dismisses the appeals on the basis that: limitation period expired; judge
reviewed evidence, applied correct principles and his conclusion did not result in an injustice; no
genuine issue for trial.
Ref: Appeal at 21 [Tab 3C]
PART II - POINTS IN ISSUE
33. This case raises a key issue of public importance that warrants the consideration and
guidance of the Honourable Court:
Is discoverability infused with a substantive knowledge of the harm done? Does a
superficial, generalized knowledge, on the other hand, insulate and protect
pedophile predators? Does the same standard of discoverability in cases of incest
apply to cases of sexual abuse when a child is the ward of a Province?
PART III - STATEMENT OF ARGUMENT
34. The key issue for this Honourable Court to consider is the nature of discoverability in the
context of victims of childhood sexual abuse. When can it be said that a person who was a victim
of sexual abuse as a child has made a causal connection between his abuse and his current
psychological injuries? Does the same standard in cases of incest apply to cases of sexual abuse
when a child is the ward of a Province?
A) Sexual Abuse - An Issue of National Importance
35. The issue of sexual abuse against children and the ability of victims to hold their abusers
accountable is an issue of national importance. As noted in R. v. L.(D.O):
• Each year, in Canada, the number of children who face traumatic situations of
sexual abuse and the resulting aftermath increases;

8
• From 1983 to 1988 the reports of sex crimes increased over 100%; and
• It is estimated that almost 80% of all sex crimes are committed against girls and
boys and young women and men under the age of 20.
Ref: R. v. L. (D.O.), [1993] 4 S.C.R. 419 at 28 [Tab 6E]
36. What is equally concerning is that boys are less likely to get help and address or
understand their traumatic experiences. The 1984 Report of the Committee on Sexual Offences
Against Children and Youths (the Badgley Report) notes that girls are more than twice as likely
(23.8%) as boy victims (11 %) to have sought assistance. For about nine in ten male victims,
incidents of abuse are kept as "closely guarded personal secrets".
Ref: R. v. L. (WK.), [1991] 1 S.C.R. 1091 at 26 [Tab 6F]
37. In an attempt to address the pervasiveness of the sexual abuse of children, many of the
states in the U.S. have enacted legislation modifying or extending the limitation period III
recognition ofthe fact that sexual abuse may not be fully realized by the victim for years.
Ref: R. v. L. (WK.), supra at 28 [Tab 6F]
B) Historical Racism in Nova Scotia - the "Mississippi of the North"
38. Nova Scotia has been plagued by a legacy of prejudice, racism and hostility towards its
Black community. As noted by Carol Aylward, a law professor at Dalhousie University, Nova
Scotia is known as the "Mississippi of the North". Incidents of racism in the Province include:
• An interracial couple finding a two-metre cross with a noose attached to it burning on
their front lawn in Hants County (February 21,2010);
• The burning to the ground of the Black Loyalist Society in Shelburne (2006);
• The attempted firebombing of the offices ofthe Black Cultural Society in North
Preston;
• Racial profiling by police;
• Racial violence at Cole Harbour High School; and
• The altercation between white police officers and Black youth in Digby.
Ref:
Carol Aylward, "Nova Scotia: Mississippi of the North", The Mark News, Online:
http://www.themarknews.comlarticles/ 1 070-nova-scotia-mississippi -of-the-north.
[Tab 6H]
39. In addition, the Courts of Nova Scotia have taken judicial notice ofthe realistic
possibility for partiality concerning "persons of African Nova Scotian descent".
Ref: Barton v. Sobeys Group Inc., 2009 NSSC 75 (CanLII). [Tab 6A]

9
40. This past February, the Mayor of Halifax issued a public apology to fonner residents of
Africville - an all-Black Halifax community which was tom down in the 1960s to make way for
a bridge. Africville is a hallmark for the shameful treatment of Blacks in Nova Scotia. While it
existed, it was an impoverished community which had no running water, no sewers, no fire
department and little access to electricity or police protection. In tenns of displacement, nearly
100 Black families - the descendants of fonner slaves from American and British colonies who
first settled there in the early 1800s - were evicted.
C) Incest and Wardship Sexual Abuse - Cut from the Same Cloth? The Comparable Case
of M.(K.} v. M.(H.}
41. When children live in a facility like the Coloured Children Home, those who look after
them take on a special role. They are providers, protectors and akin to parents. When these
figures fail to protect and provide for children and instead sexually abuse them, the ramifications
for the child can be similar to the damage caused by incest. Much like incest, the full injury
caused by this kind of sexual abuse is both complex and devastating. As noted in M (K) v.
M. (H.), the damages often manifest:
... slowly and imperceptibly, so that the victim may only come to realize the
hanns ... suffered, and their cause, long after the statute of limitations has
ostensibly proscribed a civil remedy.
Ref: M.(K) v. M.(H), [1992] 3 S.C.R. 6 at 1 [Tab 6B]
42. M. (K) v. M (H.) is a comparable case which focuses on incest. In this case a young girl
was sexually abused by her father from the ages of 8 to 16 years old. She commenced an action
against him much later in life, at the age of 28.
Ref: M. (K) v. M. (H), supra at 4, 5, 7 [Tab 6B]
43. Like Robert Borden, she told several people about the abuse, including:
• A high school guidance counsellor;
• A psychologist;
• Her employer;
• Her first husband; and
• Her second husband.
Later, she joined a self-help group for incest victims. Only then did she begin to "make the
connection between that history and her psychological and emotional problems". Before then,
she believed her psychological issues "were attributable to her own stupidity".

10
Ref: M (K) v. M (H), supra at 1 [Tab 6B]
44. Unlike Robert, the incest victim engaged in rehabilitative therapy. It was through her
therapeutic relationship that she fully realized the extent of harm caused by her abuser. Her
therapist, Ms. Pressman, noted that, but for engaging in therapy, she "would have been unaware
of the connection between the incest and her psychological and emotional injuries until she
understood that she was not responsible for her childhood abuse and had assigned blame to her
father".
Ref: M.(K) v. M(H), supra at 8 [Tab 6B]
45. Robert had not sought rehabilitative therapy. He consulted Dr. Hayes as preparation for
litigation. He has trouble talking about his abuse, suffers from graphic flashbacks and has not yet
explored the full connection between his abuse and the psychological damage he has suffered.
46. Both Robert and the victim of incest had a constant, vague awareness of the fact of abuse.
Yet while the incest victim has been able to become fully aware that her level of functioning was
related to those earlier events in her life, without a therapeutic relationship, Robert is only now
beginning to make this discovery on his own.
Ref: M (K) v. M. (H), supra at 8 [Tab 6B]
47. Justice LaForest noted in the case of M(K) v. M.(H) that the tort claim of sexual assault
"does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of
the defendant's acts and the nexus between those acts and her injuries". It was held in this case
that discovery only took place when the victim entered therapy.
Ref: M(K) v. M(H), supra at 14 [Tab 6B]
48. The Court held that the victim's psychological injuries were not fully appreciable until
later in life when "she was able to confront her past with the assistance oftherapy".
Ref: M (K) v. M. (H), supra at 21 [Tab 6B]
49. Robert has not yet been able to fully address and discover the extent of his injuries
through therapy. Yet, like the respondent in M (K.), the motions judge claims Robert was aware
of his cause of action when he reached the age of majority.
Ref: M(K) v. M.(H), supra at 21 [Tab 6B]

11
D) Discoverability - When Does the Clock Start Ticking?
50. As noted in M. (K) v. M (H), a sensible application of the discoverability rule requires
that the plaintiff have "a substantial awareness of the harm and its likely cause before the
limitation period begins to toll" [emphasis added]. The cause of action crystallizes when the
victim fully discovers the connection between:
• The harm and psychological injuries suffered; and
• The childhood history of sexual abuse.
Ref: M(K) v. M(H), supra at 30 [Tab 6B]
51. Justice LaForest notes that the key question is
• When does the victim become fully cognizant of who bears responsibility for
the childhood abuse? [emphasis added] Only then does the victim realize the
nature of the wrong done.
A victim is fully cognizant when he stops blaming himself and recognizes who was really
responsible for the sexual abuse. This redirection of responsibility results in an awareness of the
causal connection between his childhood history and resulting injuries.
Ref: M(K) v. M(H), supra at 44,47 [Tab 6B]
52. The motions judge Goodfellow makes several missteps, which could have a devastating
impact on the ability of childhood sexual abuse victims to hold their abusers accountable.
Contrary to his assertion, the limitation period clock does not (and should not) start ticking when:
• The victim recognizes that the sexual abuse is wrong;
• The victim tells someone about the abuse; or
• The victim remembers the abuse clearly.
Such claims are dubious at best and serve only to revictimize the victims. For example, the
motions judge notes Robert was able to tell a few individuals about his abuse and that "this tends
to indicate that you are a person capable of commencing proceedings". Yet if this contention
holds true, then victims of sexual abuse will be further discouraged from seeking help and
discussing their abuse in order to fully understand the injuries they have suffered.
Ref: Summary Judgment Borden at 45 [Tab 3A]
E) A Perversion of Purposes - Statutes of Limitations and a Short-sighted Application of
Discoverability

12
53. If left uncorrected, this misguided interpretation of discoverability will pervert the true
purposes of this principle. As noted by Justice LaForest, statutes of limitations have three
underlying purposes - certainty, evidentiary and diligence rationales. When these purposes are
viewed in the context of Robert's case, there are sound reasons to find that a strict application of
the statute oflimitations should not apply.
Statute of Limitations Rationale
Inapplicability to Context of Childhood Sexual Abuse
1) Certainty Rationales:
• Idea that there comes a time
where a potential defendant
should be "secure In his
reasonable expectation that he
will not be held to account for
ancient obligations".
• Serves the public interest by not
allowing unlimited liability.
• There is "absolutely no corresponding public
benefit" in protecting individuals who sexually
abuse children from the consequences of their
actions.
• There is "patent inequity" in allowing abusers to
go on with their lives without liability, while
victims continue to suffer the consequences.
2) Evidentiary Rationales:
• Based on the desire to shut out
claims based on stale evidence.
• Evidence of childhood sexual abuse will "often
be 'stale' under the most expedient trial process".
3) Diligence Rationales:
• Based on the idea that plaintiffs
are expected to act diligently
and not "sleep on their rights".
• This is entirely inappropriate in cases of child
sexual abuse as many, if not most, of the damage
flowing from this type of abuse remains "latent
until the victim is well into adulthood".
• When damage appears, the causal connection
between the sexual abuse and present
psychological injuries is "often unknown to the
victim".
Ref: M.(K.) v. M.(H), supra at 21-25 [Tab 6B]
54. As noted by Justice LaForest, "a statute of limitations provides little incentive for
victims... to prosecute their actions in a timely fashion if they have been rendered
psychologically incapable of recognizing that a cause of action exists".
Ref: M(K.) v. M(H), supra at 25 [Tab 6B]

13
55. Beyond these three rationales, the discoverability principle has one overarching purposeto
avoid injustice caused by "precluding an action before a potential plaintiff becomes aware of
the existence of the facts underlying the claim". To deny Robert's claim on the basis of
discoverability is to cause a great injustice that will have national implications on victims of
childhood sexual abuse.
Ref: Peixeiro v. Haberman, [1997] 3 S.C.R. 549 [Tab 6C]
F) The Need for Fair Play - Why Revictimize the Victim?
56. It takes "courage and emotional strength" for victims of abuse to fully come to terms with
the abuse they suffered and its effects on their personal problems. To allow this decision to stand
is to allow sexual abusers to take advantage of the failure of victims to fully realize and come to
terms with their experiences. It is to allow sexual abusers to take advantage based on the
suffering they caused. As noted by Justice Stevenson, "This is not a result which we should
encourage".
Ref: R. v. L. (WK.), [1991] 1 S.C.R. 1091 at 28 [Tab 6F]
G) Importance of Addressing Myth and Stereotypes - Sexual Abuse is More Than Just a
'Self-Esteem'Issue
57. As noted R. v. A.G., there is a need to affirm the principles of equality and human dignity
in our law through addressing the problem of myths and stereotypes about sexual abuse. The
Supreme Court has consistently held that such myths and stereotypes have no place in a rational
and just system of law.
Ref: R. v. A.G., [2000] 1 S.C.R. 439 at 1-2 [Tab 6D]
58. In this light, it is concerning that some of this nation's courts, including those in Nova
Scotia, would make the suggestion that while there is "no doubt that victims of sexual abuse
suffer trauma that often have residue effects ... including low self-esteem", it "cannot be said that
persons with low self-esteem are ... not reasonably capable of commencing a proceeding".
Ref: Summary Judgment at 25 and 29 [Tab 3A]
59. The effects sexual abuse has had on Robert go far beyond low self-esteem. He suffers
from Post-traumatic Stress Disorder, heightened anxiety, depression, interpersonal dysfunction
and dissociative responses. To suggest that the main concern or result of sexual abuse is merely

14
low self-esteem is to simplify and trivialize the full extent of damage suffered by victims. It is a
suggestion based on misunderstandings and myths of sexual abuse.
Ref:
Dr. Hayes Report, p. 24 [Tab SF]
H) Children Are 'Precious' - Or Are They?
60. The Right Honourable Chief Justice McLachlin has recently written (in published
remarks):
• "Children are precious. We love them, we value them. We are fond of saying that they
are our future - the future of our families, our communities, our country."
• "Yet perversely, children are abused".
• There exists a "right to sue institutions ... whose employees or members may have
inflicted sexual and other abuse on children in their control or custody".
• "Moreover, the law has erased the rule oflimitations, which prescribe the time in which a
person can sue for abuse. It has recognized that often it is only when a person is an adult
that they realize that what was done to them as a child constituted child abuse and how it
is connected to their present suffering. The law has said that limitations do not begin to
run until the victim understands the causal link between the abuse suffered as a child and
the damage the individual still suffers as an adult".
• Holding abusers responsible "is also about the child, who, instead of being treated as
mere property, is seen as fully human being possessed of human dignity and rights". P. 9
Ref:
The Right Honourable C.J. McLachlin, Protecting Our Children: The Law Takes
Note, Remarks for the Muriel McQueen Fergusson Foundation Gala Dinner,
Moncton, New Brunswick, October 23,2007, at pp. 1,2,8 and 9 [Tab 60]
61. It is important (obviously) that these words carry meaning, carry reality. That these words
not be constantly prefaced "except in Nova Scotia". The courts below in the instant case make it
juridically plain:
• "except in Nova Scotia" applies;
• the Chief Justice's words are merely that, words.
62. This Application is an opportunity to this Honourable Court to give juridical reality to the
statement that Canada (not just parts of Canada) protects its children.
Conclusion - Integrity
63. Without the guidance of this Honourable Court, victims of childhood sexual abuse may
be prevented from holding their abusers accountable. Those who prey on our children will rest
easy, assured with the knowledge that should their victims tell a friend, or perhaps even know

15
that the abuse was wrong, the clock starts ticking. Victims who have yet to fully realize the
extent of the harm they have suffered will be silenced forever.
64. Like so many victims of childhood sexual abuse, Robert merely wants his day in court
and a trial. Like so many other victims, he deserves one. This is a case about an institution in
charge oflooking after Black children, an institution that turned a blind eye to sexual abuse by its
staff. Should institutions that employ perpetrators of sexual abuse be able to benefit from a
victim's inability to fully realize the impact the abuse has had on his life?
65. The Applicant Robert wants his case to go to court. Wants to have a trial.
66. The bottom-line real question is this - in Canada, is there a statute of limitations on
integrity?
PART IV - COSTS
67. The Applicant seeks costs set out within the Leave to Appeal.
PART V - ORDERS SOUGHT
68. Section 46.1 of the Supreme Court Act states:
The Court may, in its discretion, remand any appeal or any part of any appeal to the court
appealed from or the court of original jurisdiction and order any further proceedings that
would be just in the circumstances.
Ref.: Supreme Court Act, s. 46.1
69. The Applicant states that it "would be just in the circumstances" for this case to be sent to
trial. This could be done at either the leave stage, or granting leave then sending the matter to
trial (should this Honourable Court consider that s. 46.1 applies only to appeals, not leaves).
70. In the alternative, the Applicants ask that this leave to appeal be granted, and the appeal
heard on the issues within.

Raymond F. Wagner
Michael Dull
Co-Counsel for the Applicant
16

17
PART VI - TABLE OF AUTHORITIES
CASES
PARAS.
Barton v. Sobeys Group Inc., [2009] N.S.C.C. 75 .................................................................. 39
M.(K.) v. M.(H), [1992] 3 S.C.R. 6 ........................................................41 - 44, 46 - 51, 53, 54
Peixeiro v. Haberman, [1997] 3 S.C.R. 549 ........................................................................... 55
R. v. A.G., [2000] 1 S.C.R. 439 ............................................................................................... 57
R. v. L. (D. 0.), [1993] 4 S.C.R. 419 ........................................................................................ 35
R. v. L. (WK.), [1991] 1 S.C.R. 1091.. ........................................................................ 36,37,56
Remarks
Right Honourable Beverley McLachlin, Chief Justice of Canada, "Protecting Our
Children: The Law Takes Note" ............................................................................................. 60
Articles
H. Aylward, Carol, "Nova Scotia: Mississippi o/the North", The Mark News.
Husser, Amy, "Aji-icville receives long-awaited apology to close 'dark chapter' in
Halifax history ", Canada.com, February 24, 201 0 ................................................................. 38
MacDonald, Michael, "Hah[ax mayor apologizes to Africville residents", The Star,
February 25, 2010 .......................................................................................................................
None relied upon.
PART VU- STATUTORY PROVISIONS