The Pandemic Exceptions to Limitations

From an evidentiary perspective, there are two principled reasons for having a limitations on civil actions. The first form can be found in historical precedents through ex ante statutes of repose, which establish a period of time through which an action must be initiated, barring any action after that time.

The second form is an extension of the common law doctrine of laches, which employs a discoverability rule based on reasonableness. The extent to which due diligence is exerted in this context is usually an important principle. This concept in common law also contained equitable principles that rights require vigilance to be enforced, and that defendants are entitled to some certainty after a period of time.

Both reasons limit the amount of time for an action to commence in order to preserve the evidence necessary for a civil proceeding, with the assumption that witnesses and material evidence are more readily available closer to an actionable event.

Applying limitation periods also ensures that judicial interpretation occurs within the social context through which the actions occurred, in a roughly contemporaneous manner.

There are numerous exceptions to limitations, even in regular circumstances. The Supreme Court of Canada reviewed one of these in an incest case in M.(K.) v. M.(H.), where Justice Laforest stated,

There comes a time, it is said, when a potential defendant should be secure in his reasonable expectation that he will not be held to account for ancient obligations. In my view this is a singularly unpersuasive ground for a strict application of the statute of limitations in this context. While there are instances where the public interest is served by granting repose to certain classes of defendants, for example the cost of professional services if practitioners are exposed to unlimited liability, there is absolutely no corresponding public benefit in protecting individuals who perpetrate incest from the consequences of their wrongful actions. The patent inequity of allowing these individuals to go on with their life without liability, while the victim continues to suffer the consequences, clearly militates against any guarantee of repose.

I am not convinced that in this type of case evidence is automatically made stale merely by the passage of time. Moreover, the loss of corroborative evidence over time will not normally be a concern in incest cases, since the typical case will involve direct evidence solely from the parties themselves.

Elizabeth Adjin-Tettey & Freya Kodar also make a compelling argument for extending the limitation period for both sexual and non-sexual abuse, in the Ottawa Law Review, where they state,

24 Whether these public policy and fairness considerations will operate to preserve a plaintiff’s right of action depends on the type of abuse that occurred, and the jurisdiction in which the claim arose… These differences across jurisdictions create unnecessary distinctions among survivors who were all victimized because of their vulnerability or marginalized status, sometimes in the same environment. They can also parse the abuse in an unrealistic manner, allowing only the sexual abuse claim to proceed, while dismissing the non-sexual aspects of the plaintiff’s claim because they are statute-barred.

25 Many of the rationales for eliminating limitation periods for sexual abuse are also applicable to non-sexual abuse, especially childhood abuse. It is not uncommon for childhood non-sexual abuse to be perpetrated by persons in positions of authority and in a fiduciary relationship vis-à-vis the victim. The nature of the relationship may also prevent the victim from reporting the abuse for fear of retribution. Similarly, victims may also experience delayed and long lasting psychological harm, similar to that experienced by sexual abuse survivors. Furthermore, victims may fail to recognize the wrongfulness of the defendant’s conduct or appreciate its consequences until much later. Yet survivors of non-sexual abuse can proceed with claims at any time in some, but not all, Canadian jurisdictions…

26 The privileging of childhood sexual abuse as qualitatively different from other types of abuse is not justifiable in light of the common effects of all childhood abuses. Both types of abuses have been found reprehensible and in need of redress. It is no less difficult for defendants to receive a fair trial in non-sexual abuse claims than in those based on sexual abuse or breach of trust. Nor is the alleged public interest in finality and certainty greater in some historical abuse claims than in others when they all involve the victimization of vulnerable persons. There is societal interest in responding to all forms of abuse, especially those involving vulnerable people, as is evidenced by legislation in jurisdictions that preserve survivors’ cause of action for all childhood abuses, abuses in intimate and trust relationships or those involving trespass to the person. As well, the Supreme Court has affirmed [in Non-Marine Underwriters, Lloyd’s of London v. Scalera] the importance of the inviolability of the person, regardless of the type of interference.

In Ontario, these concerns were entered into statute through Bill 132, in 2016, which amended s. 16 of the Limitations Act to remove limitations in for:

(h) a proceeding based on a sexual assault;

(h.1) a proceeding based on any other misconduct of a sexual nature if, at the time of the misconduct, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the misconduct:

(i) the other person had charge of the person with the claim,

(ii) the other person was in a position of trust or authority in relation to the person with the claim,

(iii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:

(i) they had an intimate relationship,

(ii) the person with the claim was financially, emotionally, physically or otherwise dependent on the other person;

These provisions were analyzed and applied in Jane Doe v. Weinstein, interpreting them as being remedial and addressing broad, systemic problems relating to sexual harassment and assault. They dismissed a motion to dismiss a claim as falling outside of these amendments, stating,

[25] I note that the wording of s. 16 (1.3) includes expansive language to the effect that the elimination of the limitations period for sexual assaults is “not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act”. The clear objective of this provision is to ensure that victims of sexual assault may pursue civil claims, not just against the perpetrators of the assaults but also against others who may be civilly liable in connection with the assaults, regardless of when the claim is commenced. Moreover, although Minister MacCharles referred in her remarks to claims against institutional defendants, the reference in s. 16 (1.3) to there being no limit “in any way with respect to the claims that may be made” indicates that claims may also be pursued against individuals who may be civilly liable in connection with a sexual assault.

[26] With that context in mind, in my view the purpose of section 16 (1.3) is to ensure that, where a proceeding involves a claim for civil liability arising from or relating to a sexual assault, that proceeding cannot be barred by the Act. This encompasses proceedings against third parties (i.e. persons other than the perpetrator of the sexual assault) regardless of the nature of the claim, whether for breach of duty, vicarious liability or otherwise, provided that the connection with a sexual assault is established.

To these exceptions, we can now add another, that of a pandemic-related exception to limitations.

When an emergency was declared by an Order in Council on March 17, 2020, under s. 7.0.1 of the Emergency Management and Civil Protection Act, it allowed for the temporary suspension of the operation of statutes and regulations under s. 7.1(2).

The government of Ontario passed a new regulation (O. Reg. 73/70) under the Act on March 20, 2020, as follows:

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

2. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken in any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

Here is to hoping that counsel need not rely extensively on this exception, or its successors, in the years to come.

Comments

  1. Extinctive prescription periods (limitation periods in civilian terms) under the Civil Code have similarly been suspended by joint order of the Chief Justice of Québec and the provincial Minister of Justice. https://courdappelduquebec.ca/fileadmin/Fichiers_client/Actualites/Arrete_n___2020-4251.pdf

  2. The Regulation should have provided guidance in relation to the end of the suspension period. Section 7(3) of Ontario’s Limitation Act,2002 would have provided a model but, by its terms, it applies only to suspensions under that Act.

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