Improving the potential of tort law for redressing historical abuse claims: the need for a contextualized approach to the limitation defence.

• Author: Adjin-Tettey, Elizabeth
• Position: Canada

This paper examines the broad question of whether the limitation defence as currently constructed and applied in the context of tort actions for historical abuse in Canadian common law jurisdictions leads to unfairness and inequities, and asks whether a more nuanced and contextualised approach which looks at the power imbalances between the parties is needed to do justice in such cases. The paper canvasses the traditional rationales for setting limitation dates and ways in which courts and legislatures avoid or minimise the harshness of their application to plaintiffs' claims. Particular attention is paid to the effects of these approaches in historical abuse cases, noting their inability to ensure all survivors of historical abuse can seek redress. The paper uses two historical abuse cases involving sterilisation--Muir v Alberta and DE (Guardian ad Litem) v British Columbia--to illustrate the arbitrariness and questionable results of some of the strategies used to circumvent the limitation defence. This paper concludes with some thoughts about a more nuanced and contextualised approach to limitation periods in historical abuse claims. The approach is grounded in the importance of giving meaning to autonomy, security and dignity over one's body and promotes consistency in survivors' ability to seek justice for both sexual and non-sexual abuses.

Cet article a pour objet une question de portee generale touchant la defense de prescription. Il s'agit de savoir si, interpretee et appliquee comme elle l'est actuellement dans le contexte d'actions en responsabilite civile introduites devant des tribunaux canadiens de common law et se rapportant a des mauvais traitements subis dans un passe relativement eloigne, la defense de prescription cause des injustices et des iniquites. Cet article cherche egalement a determiner si, pour que justice soit rendue dans de tels cas, il est necessaire d'appliquer une approche qui soit plus nuancee et contextuelle et qui prenne en compte le desequilibre du rapport de forces entre les parties. Cet article se penche sur les justifications qui ont traditionnellement ete avancees pour fixer des dates de prescription, ainsi que sur les facons dont s'y prennent les tribunaux et les assemblees legislatives pour juguler ou attenuer la severite de leur application aux poursuites des demandeurs. Une attention particuliere est portee aux effets que ces approches ont eus dans des cas de mauvais traitements infliges dans un passe relativement eloigne. Elles ne peuvent assurer que tous les survivants de mauvais traitements infliges dans un passe relativement eloigne puissent demander un redressement. Aux fins de sa demarche pour illustrer le caractere arbitraire et l'absurdite de certaines des strategies employees pour contourner la defense de prescription, l'article fait appel a deux causes portant sur des mauvais traitements infliges dans un passe relativement eloigne et mettant en jeu la sterilisation : Muir c Alberta et DE (Guardian ad Litem) c British Columbia. Certaines reflexions sur la teneur que devrait revetir une approche qui soit plus nuancee et contextuelle lorsqu'il est question de delais de prescription applicables aux poursuites pour mauvais traitements infliges dans un passe relativement eloigne. L'approche repose sur l'importance de donner un sens a l'autonomie, a la securite et a la dignite des personnes dans leur rapport a leur propre corps et la necessite que le systeme soit empreint de coherence.

Table of Contents I. INTRODUCTION II. WHY LIMITATION PERIODS? III. AVOIDINGTHE HARSHNESS OF LIMITATION PERIODS: CURRENT APPROACHES A. Non-Judicial Settlements B. The Discoverability Principle 1. Limits of Discoverability C. Wilful Concealment D. Eliminating Limitation Periods: Sexual and Non-Sexual Abuse 1. Hierarchy of Abuses: The Need for Uniformity E. Summary IV. MUIR V ALBERTA AND DE (GUARDIAN AD LITEM OF) V BRITISH COLUMBIA V. THE NEED FOR A CONTEXTUALIZED APPROACH TO LIMITATION PERIODS IN HISTORICAL ABUSE CLAIMS A. Protecting all Invasions of Personal Autonomy and Security B. Responding to the Harshness of the Limitation Defence in Historical Abuse Claims 1. Eliminating Ultimate Limitation Periods in Historical Abuse Claims 2. Giving fudges Discretion to Ignore Limitation Periods in Personal Injury Actions VI. CONCLUSION I. INTRODUCTION

Over the last few decades, cases of historical abuse in both institutional and noninstitutional settings have come to light. The institutional settings included Indian residential schools, mental institutions, reform schools and other out-of-home care programs such as foster homes and camps. (1) Abuse in non-institutional settings included that perpetrated by family members and others. Abuse took many forms, including physical, sexual, emotional, cultural and spiritual abuse, and often involved abuses of power and breaches of trust. Perpetrators targeted children, women, Aboriginal and other racialized people, immigrants, persons living with mental and physical disabilities and others who were vulnerable because of their socio-economic locations. (2)

Survivors are increasingly turning to tort law to obtain remedies directly against individual perpetrators or vicariously against their employers. (3) The trespass torts in particular, with their focus on the importance of personal autonomy, bodily integrity and security, dignity and psychological well-being, (4) have become important avenues for survivors of historical abuse and systemic discrimination to seek justice. Not only are the trespass torts relatively easy to establish, (5) they may be the only causes of action open to survivors. (6)

Survivors choose to bring trespass actions for a number of reasons. Although individual perpetrators may be dead or impecunious, (7) a survivor might also have a claim for direct or vicarious liability against the perpetrator's employer or an institution responsible for her or his care at the time of the abuse, and hence possibly obtain compensation from a solvent defendant that may be of material assistance in the healing process. (8) Bringing an action may also serve a therapeutic function even if the perpetrator is deceased at the time of the action; this is not uncommon in historical abuse claims. If successful, the perpetrator is held personally responsible and accountable for the abuse, something that may be important for the survivor's healing. (9) In some cases, public authorities and governments are held directly liable for authorizing tortious interference. (10) In these cases, individuals who were victimized because of their vulnerability and marginalization are able to hold government officials accountable. Findings of liability against the government also help promote the rule of law by demonstrating to survivors and society that governments and their agents must operate within the law.

However, tort litigation can be costly, time-consuming and stressful. A plaintiff has to relive the experience through examination and cross-examination and attacks on her or his credibility, especially where the claim is based on sexual abuse and/or against persons in authority who are often considered credible. (11) There are also concerns that if the claimant is unsuccessful this may result in self-blame for the abuse and may also place cost awards at risk. (12) In addition, survivors of historical abuse face one major "technical" barrier in their quest to seek civil remedies that other survivors of abuse do not always face: the limitation defence. Plaintiffs must institute legal proceedings for redress within a specified time or they may lose the right to do so.

Expiration of a limitation period does not necessarily bar the plaintiff's action; however, it can be raised as a defence and, if successful, will extinguish the claim. (13) Defendants have vigorously invoked the limitation defence to defeat historical abuse claims. This trend has been particularly worrisome in claims against provincial and the federal governments for abuse of children in their care. Government defendants have gone to great lengths to defend against certain claims, including invoking the limitation defence at considerable expense to taxpayers, (14) and in disregard of the Law Commission of Canada's recommendations that the federal government take a lead role in redressing institutional child abuse by adopting a policy of not relying on the limitation defence in such claims. (15) While not all allegations of abuse will succeed, a successful pleading of the limitation defence denies the plaintiff an opportunity to have the merits of her or his case determined in court.

This paper examines the broad question of whether the limitation defence as currently constructed and applied in the context of historical abuse cases in Canadian common law jurisdictions leads to unfairness and inequities, and asks whether a more nuanced and contextualized approach, which looks at the power imbalances between the parties, is needed to do justice in such cases. The first part of the paper canvasses the traditional rationales for setting limitation dates. This is followed by a discussion of the current approaches taken by courts and legislatures to avoid or minimize the harshness of limitation dates. We pay particular attention to the effects of these approaches in historical abuse cases. The third part of the paper uses two historical abuse cases involving sterilization--Muir v Alberta (16) and DE (Guardian ad Litem of) v British Columbia (17)--to illustrate the arbitrariness and absurdity of some of the strategies used to circumvent the harshness of the limitation defence. We conclude with some thoughts on what a more nuanced and contextualized approach to limitation periods in historical abuse cases could look like. Our approach seeks to recognize the interests of survivors and broader societal interests in giving meaning to autonomy, security and dignity over one's body, and to ensure...