Date: Tue, 8 Jul 2008 16:37

From: Hector MacQueen

Subject: Bye-bye limitation?

Surely the problem with all these arguments about particular types of case is, where do you stop? For example, claims about child abuse in the 1960s were recently held excluded by limitation provisions in a Scottish House of Lords appeal available here.

Seems pretty tough to me, but I can see why the judges have taken this line all the way up the court ladder.

We might also want to look at environmental damage cases and so on and so on. It seems to me that if we accept the validity of the policy of limitation (and prescription) rules, then they ought to operate as generally as possible and in as strict law manner as possible (i.e. no equitable extensions or the like). Responding to the hard cases which will always arise makes for bad law-making, I think.

Hector

--
Hector L MacQueen
Professor of Private Law
Co-Director, AHRC Research Centre Intellectual Property and Technology Law
Edinburgh Law School
University of Edinburgh
Edinburgh EH8 9YL
UK
Tel: (0)131-650-2060; Fax: (0)131-662-6317

Quoting Louise Belanger-Hardy:

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.

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