Extinctive Prescription
| Author | Nathalie Des Rosiers; Louise Langevin |
| Pages | 43-74 |
Chapter
3
Extinctive
Prescription
85. The
Problem
- As
already
discussed,1
victims
of
sexual
and
spousal
abuse
may try to
forget
their traumatic sexual experiences,
they
may
often
be
unable
to see
themselves
as
victims,
or
they
may
simply
be
unable
to
talk about their
experiences.2
Consequently,
many
years
may
pass until they realize
the
damage they have suf-
fered
or
confide
in
someone about
it. If
they
do
manage
to get
help
and
institute proceedings
before
the
civil courts, they
face
the
obstacle
of
extinctive
prescription,3
among others.
The
Civil
Code
of
Quebec
(art.
2925
C.C.Q.)
standardized
the
former
prescription peri-
ods4
by
establishing
a
three-year extinctive prescription period
for
1. See
Part
I
above.
2.
See
Nathalie
Des
Rosiers, "Limitation Periods
and
Civil Remedies
for
Childhood
Sexual Abuse," (1992)
9
Canadian Family
Law
Quarterly
43; see
also
the
opinion
of Mr.
Justice
La
Forest
in M.
(K.)
v. M.
(H.),
6.
See,
for
example, M.T.
v.
J.L.,
[1998]
B.C.J.
No.
1459
(B.C. S.C.) (Q.L.),
in
which
the
plaintiff,
who was
fifty-five
years
old,
waited
forty-five
years after
the end
of
the
sexual abuse
before
instituting
a
civil action
against
her
father.
The
plaintiff
was
able
to
institute
the
proceedings, notwithstanding
the
years
that
had
elapsed, because
the
British Columbia
statute
on
limitations
removes
all
prescription periods
in
matters
of
sexual abuse committed
against
minors.
See
Limitation Act, R.S.B.C.
1996,
c.
266,
s.
3(4)(k).
3.
Although
the
problem
of
extinctive prescription
has
arisen
most
often
in
cases
of
sexual
offences
perpetrated against children,
it may
also prevent adult vic-
tims
of
sexual
or
spousal abuse
from
instituting
civil proceedings. Therefore,
this chapter
is
applicable
to all
victims
who are
subject
to
prescriptive time
periods.
4.
In
matters
of
extracontractual liability,
the
Civil
Code
of
Lower Canada
pro-
vided
for
several extinctive prescription periods, including
a
period
of one
year
for
bodily injuries
(art.
2262
(2)
C.C.L.C.),
a
general two-year period
for
offences
(art.
2261
(2)
C.C.L.C.)
and a
three-year period
for
medical liability
(art. 2260a
C.C.L.C.).
The
standardization
of the
extinctive prescription peri-
ods
was
also among
the
objectives
of the
Civil
Code
Revision
Office
[here-
inafter
CCROJ.
See
CCRO,
Report
on the
Quebec
Civil Code,
vol.
2,
Commentaries
(Quebec:
Editeur
officiel,
1977)
at
934.
However,
for
injuries
that
appear gradually,
the
CCRO
had
suggested
a
deadline
of ten
years
from
the
event having caused
the
injury. Fortunately
for the
victims under discus-
43
44 THE
CONDITIONS
FOR
REMEDY
personal actions. However, there
are
certain exceptions.
For
exam-
ple,
prescription does
not run
between spouses while they
are
cohabiting
(art. 2906
C.C.Q.).
As for
minors, article 2905
C.C.Q.
stipulates
that
prescription runs against them, except when they
institute
proceedings against their
representatives—that
is,
people
who
have parental authority over
them.5
86. A
Serious
Obstacle
- As
recognized
by the
Supreme Court
in the
matter
of
M.
(K.)
v.
M.
(H.),6
a
decision
that
we
will examine
below,
short prescription periods constitute
a
serious obstacle
to
fair
com-
pensation
for
victims
of
sexual
and
spousal
abuse.7
A
blind
and
strict
application
of
prescription periods
would
make
it
almost
sion
in
this
book,
the
proposal
was not
retained
in the
Civil
Code
of
Quebec.
See
CCRO,
Report
on the
Quebec
Civil
Code,
vol.
1,
Draft
Civil
Code
(Quebec:
Editeur
officiel,
1977),
Book
7,
art.
51.
5.
Art. 2905, para.
2
C.C.Q. "Nor does
it run
against
a
minor
or a
person
of
full
age
under curatorship
or
tutorship with respect
to
remedies
he may
have
against
his
representative
or
against
the
person entrusted with
his
custody."
Pursuant
to the
Civil
Code
of
Lower
Canada, minors benefited
from
the
gen-
eral
rule
of
suspension
of
prescription. Art. 2232
(2)
C.C.L.C.
See
Francois
Frenette,
"De
la
prescription,"
in La
reforme
du
Code
civil, vol.
3
(Quebec:
Presses
de
1'Universite
Laval, 1993)
No. 26 at
574. Thus, prescription will
run
against
a
minor
who
wants
to
institute
proceedings
against
a
person
who is
not her
representative, such
as an
uncle having committed incest. However,
given
that
such victims
often
establish
the
link
of
causality between
the
fault
and
their
injury only after several years
of
therapy once they have become
adults, prescription
may be
suspended
in
such cases, because
it was
impossi-
ble
for the
victim
to act and
because
the
injury appeared gradually.
See
below,
at
§120ff.
6.
Above, note
2 at 17.
7.
As
regards
the
negative impact
of
short
prescription periods,
see the
analysis
presented
by
Janet
Mosher,
"Challenging Limitation Periods: Civil Claims
by
Adult Survivors
of
Incest," (1994)
44
Univ.
ofT.
L. J.
169;
Des
Hosiers,
above,
note
2;
Nathalie
Des
Rosiers,
"Les
recours
des
victimes
d'inceste,"
in
Pierre
Legrand,
ed., Common Law, d'un
siecle
I'autre
(Cowansville,
QC: Les
Editions
Yvon
Blais,
1992)
at
153. Much
has
also been written
in
American doctrine
regarding
this
major
obstacle. See, among others, Carol
W.
Napier, "Civil
Incest
Suits:
Getting
beyond
the
Statute
of
Limitations," (1990)
68
Wash.
U.
L.Q.
995; Melissa
G.
Salten,
"Statutes
of
Limitations
in
Civil Incest
Suits:
Preserving
the
Victim's Remedy,"
(1984-5)
7
Harv.
Women's
L. J.
189; Carolyn
B.
Handles, "Civil Claims
of
Adults Molested
as
Children: Maturation
of
Harm
and the
Statute
of
Limitations Hurdle," (1987)
15
Fordham
Urban
L. J.
709;
Rebecca
L.
Thomas, "Adult Survivors
of
Childhood Sexual Abuse
and
Statutes
of
Limitations:
A
Call
for
Legislative Action," (1991)
26
Wake
Forest
Law
Rev.
1245;
Ann
Marie Hagen, "Tolling
the
Statute
of
Limitations
for
Adult
Survivors
of
Childhood Sexual Abuse," (1991)
76
Iowa
L. R.
355.
EXTINCTIVE
PRESCRIPTION
45
impossible
to
institute
any
civil proceedings
for
injuries
resulting
from
spousal abuse
or
sexual
offences
perpetrated
against
children.
This explains,
in
part,
why
such proceedings
are
rare
in
Quebec.8
As
regards
the
small number
of
Quebec
decisions
on
this
topic,
see
Louise
Langevin,
"L'acces
des
femmes
au
systeme
judiciaire:
Les
poursuites civiles
pour violence sexuelle
et
conjugale
au
Quebec," (1999)
19
Cahiers
de
la
femme
86.
The
following
are the
decisions
that
we
have identified
on
this
subject:
Pie
v.
Thibert, [1976] C.S.
180
(Que. Sup. Ct.) (gang rape); Diamond
v.
Bikadoroff,
[1976]
C.A.
695
(Que. C.A.) (sexual touching
of a
patient
by a
psychiatrist—
dismissed because
the
prescription period
had
expired); Labonte
v.
Belanger,
J.E.
78-119
(Que. Sup. Ct.) (sexual
assault
on
young
girls—prescription);
Beaumont-Butcher
v.
Butcher, [1982] C.S.
893
(Que. Sup. Ct.) (spousal abuse);
Lacombe
v.
D'Avril, [1983] C.S.
592
(Que. Sup. Ct.) (spousal abuse); Gosselin
v.
Fournier, [1985] C.S.
481
(Que. Sup. Ct.) (sexual touching
of a
student
by a
teacher); Rousseau
v.
Quessy,
[1986]
R.R.A.
222
(Que. Sup. Ct.) (sexual
assault
on
a
waitress
by a
customer); Jacques
v.
Tremblay, J.E. 89-734 (Que. Sup. Ct.)
(threats
made
by the
defendant
against
the
plaintiff,
who had
filed
a
com-
plaint
for
sexual
assault
on her
daughter); Goodwin
v.
Commission scolaire
Laurenval,
[1991]
R.R.A.
673
(Que. Sup. Ct.) (sexual touching
of a
student
by
a
janitor); Lakatos
v.
Sary, J.E. 92-6 (Que. Sup. Ct.) (spousal abuse); Gagnon
v.
Bechard,
J.E. 89-590 (Que. Sup.
Ct.),
rev'd [1993] R.J.Q. 2019 (Que. C.A.)
(sexual touching
of
children
by
their
babysitter—appeal
allowed
on an
issue
of
prescription,
no
decision
on the
merits); Bosquet
v.
Zahas
(25
January
1994),
Montreal 500-05-013873-896 (Que. Sup. Ct.) (spousal abuse);
Berube
v.
Bilodeau, J.E. 95-1244
(C.Q.)
(spousal abuse);
Cote
v.
Beaulieu
(22
August
1995) 150-05-000250-920 (Que. Sup. Ct.) (spousal abuse); Larocque
v.
Cote,
[1996] R.J.Q. 1930 (Que. Sup. Ct.) (sexual
assault
on a
soldier
by
colleagues);
Walker
v.
Singer,
[1996]
R.R.A.
175
(Que. Sup. Ct.) (action
for
defamation fol-
lowing
a
complaint
of
sexual
assault);
Pelletier
v.
Emery, J.E. 97-1360 (Que.
Sup. Ct.) (harassment
by an
ex-husband);
A.A.
v. B.,
[1998] R.J.Q. 3117 (Que.
Sup. Ct.) (victim
of
incest);
Roberge
v.
Carrier, AZ-98026065,
98
B.E.
86
(Que.
Sup. Ct.) (spousal abuse); G.B.
v.
A.B., [1999] J.Q.
No.
5129 (Que. C.A.)
(Q.L.),
rev'g
[1998]
J.Q.
No.
1588 (Que. Sup. Ct.) (Q.L.)
(sexual
assault
on a
child-
had
allowed
a
motion
to
dismiss
on the
ground
of
prescription);
Major
v.
Surette, [1999] J.Q.
No.
5060
(C.Q.)
(Q.L.)
(spousal abuse); Lapointe
v.
Lapointe,
succession, [1999] J.Q.
No. 385
(C.Q.)
(Q.L.)
(incest—dismissed
for
reasons
of
prescription, among other reasons); T.L.
v.
M.L.,
[1999] J.Q.
No.
5783 (Que. Sup. Ct.)
(Q.L.)
(spousal abuse, action
for
damages within
the
scope
of
a
divorce); Marcoux
v.
Legare,
J.E. 2000-960
(C.Q.),
AZ-00021467
(on
appeal: C.A.Q. 200-09-003076-004) (spousal abuse);
Lavallee
v.
Masse,
AZ-
00036289
(C.Q.)
(sexual
assault).
From among
these
cases,
two
were dis-
missed
due to
prescription: Diamond
v.
Bikadoroff
and
Labonte
v.
Belanger.
Moreover,
other decisions dealing with
the
dismissal
of
employees
as a
result
of
sexual
assault
show
that
the
victims
who
complained
to the
police
or to
other
authorities
did not
institute
civil proceedings. See,
for
example,
Association
des
bibliothecaires
et des
professeurs
de
I'Universite
de
Moncton
et
Universite
de
Moncton, [1999] R.J.D.T. 1457 (Arbitration
Trib.),
D.T.E. 99T-
848;
Syndicat national
du
transport
ecolier
Saguenay
- Lac
St-Jean
et
Compagnie
d'autobus
xxx
Itee,
D.T.E. 99T-1149 (Arbitration
Trib.).
8
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