Date: Tue, 8 Jul 2008 16:18

From: Louise Belanger-Hardy

Subject: Bye-bye limitation?

Thanks Tsachi,

I agree with your comments. In 1992, the Supreme Court of Canada proposed a flexible approach towards limitation periods in cases of sexual assault and incest. See M.(K). v. M.(H.), [1992] 3 S.C.R. 6. Although this decision may have encouraged victims of sexual assault and incest to consider a civil action for compensation, as far as I know it has not lead to a large increase in compensation claims. The province of Ontario has recently revamped its Limitations Act, S.O. 2002, c. 24. Section 10 provides as follows:

Assaults and sexual assaults

10 (1) The limitation period established by section 4 does not run in respect of a claim based on assault or sexual assault during any time in which the person with the claim is incapable of commencing the proceeding because of his or her physical, mental or psychological condition.

Presumption

(2)  Unless the contrary is proved, a person with a claim based on an assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced if at the time of the assault one of the parties to the assault had an intimate relationship with the person or was someone on whom the person was dependent, whether financially or otherwise.

(3) Unless the contrary is proved, a person with a claim based on a sexual assault shall be presumed to have been incapable of commencing the proceeding earlier than it was commenced.

Although I cannot back this up by empirical studies, my sense is that this change in the legislation has not created a huge increase in compensation claims.

Studies show that the pain and suffering related to incest and sexual assault can continue for a very long time. The Ontario solution seems fair to me.

Louise Bélanger-Hardy
Faculty of Law
Common Law Section
University of Ottawa
Ottawa, Ontario
Canada

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De : Tsachi Keren-Paz  
Envoyé : 8 juillet 2008 10:05
Objet : Re: bye-bye limitation?

Dear Andrew and colleagues,

I strongly disagree. This case, for me, is not even a difficult one. The defendant's interest in closure is by far outweighed by the plaintiff's interest in being compensated for being sexually violated.

I find especially unfortunate your flippant approach towards the victim by saying "That's tough, but now get on with your life". I wonder if you would have found it as an acceptable answer if YOU were raped. I think this phrase reflects insensitivity which is at times typical of men of certain age and upbringing.

The question how far should we stretch this principle in balancing between the interests of victims of deliberate acts in compensation and of defendants in closure is indeed not easy to answer. I have no doubt that in this case, allowing the claim is just, and in general I would accord much less weight to the interest in closure when on the one hand, a serious transgression had occurred, and on the other hand, the defendant only later became worth suing.

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