J.N. v. G.J.K.,

• Judge: McClung, Berger and Ritter, JJ.A.
• Neutral Citation: 2004 ABCA 394
• Citation: 2004 ABCA 394,(2004), 361 A.R. 177 (CA),248 DLR (4th) 245,[2005] 7 WWR 631,361 AR 177,40 Alta LR (4th) 42,[2004] CarswellAlta 1675,[2004] AJ No 1425 (QL),339 WAC 177,339 W.A.C. 177,(2004), 361 AR 177 (CA),[2004] A.J. No 1425 (QL),248 D.L.R. (4th) 245,361 A.R. 177
• Date: 08 December 2004
• Court: Court of Appeal (Alberta)

J.N. v. G.J.K. (2004), 361 A.R. 177 (CA);

    339 W.A.C. 177

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. DE.057

J.N. (respondent/plaintiff) v. G.J.K. and the Board of Trustees of Edmonton Catholic Regional Division No. 40, also known as the Edmonton Catholic School Board (appellants/defendants)

(0303-0025-AC; 2004 ABCA 394)

Indexed As: J.N. v. G.J.K. et al.

Alberta Court of Appeal

McClung, Berger and Ritter, JJ.A.

December 8, 2004.

Summary:

In 2001, the female plaintiff brought an action against a former teacher who became her husband, and the school board that employed him, for alleged sexual abuse that ended in 1987. The defendants applied to dismiss the action because it was barred by lapse of time under the Limitations Act, R.S.A. 2000, c. L-12.

The Alberta Court of Queen's Bench, in a decision reported 331 A.R. 380; 2002 ABQB 995, dismissed the application. The teacher appealed.

The Alberta Court of Appeal dismissed the action.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - In 2001, the female plaintiff brought an action against a former teacher who became her husband, and the school board that employed him, for alleged sexual abuse that ended in 1987 - The defendants applied to dismiss the action because it was barred by lapse of time under the Limitations Act, R.S.A. 2000, c. L-12 - The trial judge dismissed the application where the revelation of the true nature of the teacher's alleged conduct and its legal character had never taken place in the plaintiff's mind until she spoke to her counsel and a police officer in 2000 - The plaintiff did not know, and in the circumstances ought not to have known that the matter "warrant[ed] bringing a proceeding" within the meaning of s. 3(1)(a)(iii) until within two years before she commenced her suit - The Alberta Court of Appeal upheld the decision - The court added that the transitional provisions in s. 2(2) did not operate to bar the plaintiff's action where the factors in s. 3(1)(a) were relevant in determining what the plaintiff must know under s. 2(2) before the limitation period could begin to run - See paragraphs 8 to 32.

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - In 2001, the female plaintiff brought an action against a former teacher who became her husband, and the school board that employed him, for alleged sexual abuse that ended in 1987 - The defendants applied to dismiss the action because it was barred by lapse of time under the Limitations Act, R.S.A. 2000, c. L-12 - The trial judge dismissed the application where the revelation of the true nature of the teacher's alleged conduct and its legal character had never taken place in the plaintiff's mind until she spoke to her counsel and a police officer in 2000 - The Alberta Court of Appeal upheld the decision where there was ample evidence before the trial judge that the teacher fraudulently concealed the injury inflicted upon the plaintiff - Prior to the spring of 2000, the plaintiff was "under the impression always and certainly was led to believe by the teacher that everything that had occurred was her fault" - No contrary evidence was adduced by the teacher - Moreover, there was no evidence from which a contrary inference could be drawn - See paragraphs 33 to 38.

Limitation of Actions - Topic 9428

Bars - Disallowance of defence - Considerations - Fraudulent concealment - [See Limitation of Actions - Topic 9324 ].

Practice - Topic 5255.4

Trials - General - Summary trials - Availability of - Counsel elected to use a summary trial procedure for an application to dismiss the plaintiff's action on the grounds that it was statute-barred - On appeal from the trial judge's decision, the Alberta Court of Appeal declined to interfere respecting the procedure used and stated: "Given the importance of credibility in this case, it may well have been inappropriate to invoke the summary trial procedure, notwithstanding counsel's election to do so. The decision whether to proceed by summary trial on affidavit material, however, is a matter within the discretion of the trial judge" - The court added: "Reliance upon affidavits alone will not warrant interference, unless the summary trial judge reached a conclusion for which there is no evidentiary support or made a palpable and overriding error [...] We discern no such error here. The conclusions reached by the trial judge have ample support in the uncontradicted evidence - See paragraphs 39 to 48.

Cases Noticed:

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 9].

Cowen v. Gray, [2001] B.C.T.C. 487 (S.C.), refd to. [para. 9].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 11].

R. v. W.K.L., [1991] 1 S.C.R. 1091; 124 N.R. 146, consd. [para. 12].

S.G.H. v. Gorsline et al. (2001), 285 A.R. 248 (Q.B.), consd. [para. 13].

Reykdal (N.V.) & Associates Ltd. v. 571582 Alberta Ltd. et al., [2000] A.R. Uned. 444; 90 Alta. L.R.(3d) 37; 2000 ABCA 330, refd to. [para. 21].

Orangeville Raceway Ltd. v. Wood Gundy Inc. et al. (1995), 59 B.C.A.C. 241; 98 W.A.C. 241; 6 B.C.L.R.(3d) 391 (C.A.), refd to. [para. 21].

N.V. Bocimar S.A. v. Century Insurance Co. of Canada, [1987] 1 S.C.R. 1247; 76 N.R. 212, refd to. [para. 21].

Andrews v. Coxe (2003), 320 A.R. 258; 288 W.A.C. 258; 2003 ABCA 52, refd to. [para. 21].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 22].

Predator Corp. v. Ricks Nova Scotia Co. (2002), 317 A.R. 322; 284 W.A.C. 322; 2002 ABCA 248, refd to. [para. 22].

Mohr v. 477470 Alberta Ltd., [2003] A.J. No. 408 (Q.B.), refd to. [para. 27].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 27].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 27].

Sparham-Souter v. Town & Country Developments (Essex) Ltd., [1976] 1 Q.B. 858 (Eng. C.A.), consd. [para. 27].

Beaudoin et al. v. Conley (2000), 150 Man.R.(2d) 34; 230 W.A.C. 34 (C.A.), refd to. [para. 35].

Bank of Montreal v. Lysyk et al. (2003), 334 A.R. 308; 2003 ABQB 186, refd to. [para. 40].

Comptom Petroleum Corp. v. Alberta Power Ltd. (1999), 242 A.R. 3 (Q.B.), refd to. [para. 41].

Adams et al. v. Norcen Energy Resources Ltd. (1999), 248 A.R. 120 (Q.B.), refd to. [para. 41].

Jabrica v. Krueger et al. (2001), 306 A.R. 113; 2001 ABQB 1085, refd to. [para. 45].

Christensen et al. v. Proprietary Industries Inc. et al. (2002), 309 A.R. 201; 2002 ABQB 97, refd to. [para. 45].

Abbenbroek v. McCusker (2002), 328 A.R. 83; 2002 ABQB 945, refd to. [para. 45].

Braintech Inc. v. Kostiuk, [1999] 9 W.W.R. 133; 120 B.C.A.C. 1; 196 W.A.C. 1; 1999 BCCA 169, refd to. [para. 46].

Statutes Noticed:

Limitations Act, R.S.A. 2000, c. L-12, sect. 2(2), sect. 3(1), sect. 4(1), sect. 4(2), sect. 5(1), sect. 5(2) [para. 7].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on Construction of Statutes (4th Ed. 2002), pp. 281, 285 [para. 30].

Counsel:

G.K. Randall, Q.C., for the respondent/plaintiff;

B.A. Vail and E.A. Olszewski, for the appellants/defendants.

This appeal was heard on April 15, 2004, by McClung, Berger and Ritter, JJ.A., of the Alberta Court of Appeal.

The Court of Appeal delivered the following memorandum of judgment on December 8, 2004. McClung, J.A., took no part in the judgment.