J.T. v. E.E.H., (2007) 424 A.R. 160 (QB)

JudgeHughes, J.
CourtCourt of Queen's Bench of Alberta (Canada)
Case DateAugust 31, 2007
Citations(2007), 424 A.R. 160 (QB);2007 ABQB 537

J.T. v. E.E.H. (2007), 424 A.R. 160 (QB)

MLB headnote and full text

Temp. Cite: [2007] A.R. TBEd. SE.050

J.T. (plaintiff) v. E.E.H. (defendant)

(9701-08839; 2007 ABQB 537)

Indexed As: J.T. v. E.E.H.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hughes, J.

August 31, 2007.

Summary:

The plaintiff brought an action for damages against the defendant for sexual assaults allegedly committed between 1976 and 1982, when the plaintiff was between five and 11 years of age. At the close of the plaintiff's case, the defendant brought a non-suit motion under rule 260 on the grounds that the plaintiff's action was statute-barred by the two year limitation period under s. 51(b) of the Limitation of Actions Act.

The Alberta Court of Queen's Bench allowed the non-suit motion on the ground that the action was statute-barred by the expiration of the two year limitation period in s. 51(b). Applying the discoverability rule, the plaintiff would have been aware of the causal connection between the alleged sexual assaults and her present problems no later than the end of 1992. Since the action was not commenced until June 1997, the action was clearly statute-barred.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See Limitation of Actions - Topic 3212 ].

Limitation of Actions - Topic 3212

Actions in tort - Trespass to the person - Assault and battery - The plaintiff brought an action for damages against the defendant for sexual assaults allegedly committed between 1976 and 1982, when the plaintiff was between five and 11 years of age - At the close of the plaintiff's case, the defendant brought a non-suit motion under rule 260 on the grounds that the plaintiff's action was statute-barred by the two year limitation period under s. 51(b) of the Limitation of Actions Act - The Alberta Court of Queen's Bench allowed the non-suit motion on the ground that the tort action was statute-barred by the expiration of the two year limitation period in s. 51(b) - Applying the discoverability rule, the plaintiff knew or ought to have known of the nexus between the sexual assaults and her present problems no later than the end of 1992 - Since the action was not commenced until June 1997, the action was clearly statute-barred - Although an action for breach of fiduciary duty was subject to a six year limitation period, the evidence did not support a finding of a fiduciary relationship between the plaintiff and defendant - There was also no evidence of fraudulent concealment by the defendant - There was no evidence that the defendant abused either a confidential position or deliberately concealed facts.

Limitation of Actions - Topic 3215

Actions in tort - Trespass to the person - Sexual misconduct - [See Limitation of Actions - Topic 3212 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 3212 ].

Limitation of Actions - Topic 9324

Postponement or suspension of statute - Fraud - Fraudulent or wilful concealment - [See Limitation of Actions - Topic 3212 ].

Practice - Topic 5390

Dismissal of action - Application or motion for dismissal - Nonsuit, at close of plaintiff's case - Evidence and proof - The Alberta Court of Queen's Bench referred to the following summary of the law respecting non-suit motions: "a non-suit should only be granted in the clearest of cases. There must be 'no evidence which if believed and not contradicted would support a jury finding for the plaintiff'. ... On a non-suit motion, the court must not weigh the plaintiff's evidence. ... The following legal analysis of the issues proceeds on the assumption that the evidence of the plaintiff is believed. Based upon the evidence presented by the plaintiffs, there must be enough evidence for a prima facie case." - See paragraph 3.

Cases Noticed:

Baum v. Graham Construction & Engineering Inc. et al., [2006] A.R. Uned. 382; 2006 ABQB 460, refd to. [para. 3].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 34].

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. 34].

R. v. W.K.L., [1991] 1 S.C.R. 1091; 124 N.R. 146, refd to. [para. 35].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 36].

T.R. v. Criminal Injuries Review Board (Alta.) (2006), 417 A.R. 163; 410 W.A.C. 163; 2006 ABCA 306, refd to. [para. 40].

S.G.H. v. Gorsline et al. (2001), 285 A.R. 248 (Q.B.), refd to. [para. 46].

Calmont Leasing Ltd. v. Kredl et al. (1995), 165 A.R. 343; 89 W.A.C. 343 (C.A.), refd to. [para. 65].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 66].

C.D.C. v. Starzecki, [1996] 2 W.W.R. 317 (Man. Q.B.), refd to. [para. 69].

L.A.J. v. H.J. (1993), 13 O.R.(3d) 306 (Gen. Div.), refd to. [para. 70].

Beaudoin et al. v. Conley (2000), 150 Man.R.(2d) 34; 230 W.A.C. 34 (C.A.), refd to. [para. 71].

T.L.B. v. R.E.B. - see Beaudoin et al. v. Conley.

Counsel:

N. Shanks, for the plaintiff;

B.E. Devlin, Q.C., for the defendant.

This non-suit motion was heard on May 22 and 24, 2007, before Hughes, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on August 31, 2007.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT