OW v WP, 2012 ABQB 252

Court of Queen ’ s Bench of Alberta Citation: OW v WP, 2012 ABQB 252 Date: 20120417 Docket: 9901 02246 Registry: Calgary Between: OW Plaintiff - and - WP Defendant Corrected judgment: A corrigendum was issued on April 24, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________

[ 1 ] This decision was delivered orally on January 31, 2012. [ 2 ] On February 11, 1999, the Plaintiff, OW filed a Statement of Claim in which she alleges the Defendant, her brother, WP, sexually assaulted her during the years 1940 - 1945, when she would have been between 8 and 13 years old. She claims damages for these alleged sexual assaults. [ 3 ] WP seeks

summary dismissal of OW’s claims based upon a Limitation ’s Act defence. OW seeks dismissal of WP’s application and cross-applies for a direction that the limitation issue and the merits of the case should be decided at the same time at a full trial. [ 4 ] This lawsuit has taken a long and circuitous route which was summarized by Justice Kenny in her ruling on the inordinate delay application or the “drop dead” rule, pursuant to Rule 244.1(1): OW v WP , 2009 ABQB 385 , 470 AR 195. [ 5 ] WP’s application is for

summary dismissal of OW’s claim, pursuant to Rule 7.2(

a) of the Rules of Court , on the basis that the admissions she made during questioning disclose that the limitation date for bringing her action expired long before she filed her Statement of Claim on February 11, 1999. [ 6 ] Rule 7.2(

a) provides as follows: 7.2 On application, the Court may at any time in an action give judgment or an order to which an applicant is entitled when (

a) admissions of fact are made in a pleading or otherwise, or (

b) the only evidence consists of records and an affidavit is sufficient to prove the authenticity of the records in which the evidence is contained. [ 7 ] OW opposes WP’s application and argues in her cross-application that there is conflicting evidence before the Court that needs to be resolved through viva voce evidence at a trial, and not on conflicting affidavit evidence presented at this special chambers hearing. [ 8 ] OW further argues that limitation date calculations in sexual assault cases are nuanced and do not lend themselves to

summary dismissal application. [ 9 ] On a more technical basis, OW argues that WP had a non-party, his son and Power of Attorney, DP, swear an affidavit in support of WP’s application. OW complains that the affiant, DP, also refused to answer questions that she says were relevant and material to her application. This issue was not very aggressively argued by OW and can be dealt with first. It turns out that WP suffered a debilitating stroke in January, 2011. WP had granted a Power of Attorney to his son, DP. The Rules of Court do not state that only parties can file affidavits.

I find that DP, in his role as attorney, was by his affidavit simply putting facts before the Court by attaching excerpts from transcripts taken at the questioning of OW. The Rules of Court at Rule 2.13 provide for this procedure and nothing unfair or

improper was done here. This argument is dismissed. [10] On the issue of conflicting affidavit evidence before the Court in this application, OW argues that this conflicting evidenceneeds to be resolved through a viva voce hearing not on a

summary basis. [11] OW further argues that the Affidavit evidence clearly demonstrates that she suffered significant harm as a result of theDefendant’s actions. [12] OW submits that she also suffered from post-traumatic stress disorder as a result of WP’s wrongful acts and the disorder wasuntreated until after her mother’s death in 1998. [13] OW also relies on the leading case on limitation period issues in sexual assault cases, M(

K) v M(H), (SCC),[1992] 3 SCR 6, which she says supports her position. [14] In the face of conflicting evidence, according to OW, the Court must not attempt to determine the critical issue of when OW’sawareness materialized without hearing her explanation of the whole history given orally at a trial. [15] OW relies on Persaud v Garcia-Persuad, 2009 ONCA 782, 81 RFL (6th) 1, an Ontario Court of Appeal decision holding atpara 5 that: ... resolutions of conflicting evidence on critical matters requires a trial of issues, in which viva voce evidence is called [16] OW argues that sexual assault victims go through a fundamentally different process than other tort plaintiffs.

Unlike partieswho suffer a car accident or fall down a flight of stairs, sex assault victims do not instantly know the cause and extent of their injuries. [17] OW also argues that the evidence de bene esse of OW’s treating psychologist, Dr. Maria Eriksen, needs to be weighed as tocredibility. OW further submits that her testimony should be heard in the video format that it was taken, so as to allow the Court a muchbetter assessment of that evidence. Dr. Eriksen’s evidence was taken de bene esse because at the time she was suffering from a terminalillness. She has since passed away. [18] OW also relies on P(

D) v S(W) (1995), (MB KB), 101 Man R (2d) 161 (QB) which held that to determinethe question of whether a person has been harmed and when it was discovered, if tried separately, would involve the same issues whichwould necessarily be canvassed as part of the substantive issues in the case, and therefore should be left for a full canvass of the mattersat trial. [19] To summarize, OW argues that in order to determine the limitation issue the Court must hear orally all of OW’s evidence andthe Dr. Eriksen video.

Not only does the Court have to hear this evidence but it has to weigh its credibility before deciding when thelimitation clock starts. [20] Both parties agree that it is generally accepted that a special approach must be taken by the Courts when considering anextension of the limitation period brought by victims of incest or sexual assault. [21] This issue arose in the case of M(K), supra. In M(K), at the age of 28, the plaintiff brought an action against her father forincestuous abuse when she was between the ages of 8 and 16 years old, and against her mother for breach of fiduciary duty.

Thedefendants argued that the claim was statute-barred. The Supreme Court found in favour of the plaintiff. The Court found that incest isboth a tortious assault and a breach of fiduciary duty.

[ 22 ] In G Mew, The Law of Limitations (Toronto: Butterworths, 2004), at 110 the author, in discussing M(K) , states that with respect to the tortious assault, the limitation period did not start to run until the plaintiff was reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. In M(K) , the Court held that the law must also take account of the unique and complex nature of incestuous abuse and its consequential harms.

Although various psychological and emotional harms immediately beset the victim much of the damage is latent and extremely debilitating. The Court went on to say that when the damages begin to become apparent, the causal connection between the incestuous activity and present psychological injuries is often unknown to the victim.

Therefore a statute of limitations provides little incentive for an incest victim to prosecute his or her action in a timely fashion if the victim has been rendered psychologically incapable of recognizing that a cause of action exists. [ 23 ] The Supreme Court held that the reasonable discoverability rule should be applied in such cases, and that the limitation period should only begin to run when, as set out above, the plaintiff has a substantial awareness of the harm and the likely cause. [ 24 ] Mew at 111 quotes the Report of the Law of Limitations of Actions where the Canadian Bar Association in Ontario, commented as follows: The reasons explaining the delay in bringing these particular claims should be stressed; the major obstacle to an adult incest survivor’s claim is that the Statute of Limitations often expires before injuries become evident.

Very often the severe emotional damage that such abuse causes to the child victim does not become apparent until many years after the abuse ends. It is further argued in the literature that the law of limitations cannot respond to the problems of sexual assault victims. [The] theory of “accommodation” is often cited as one reason why the limitation period should be extended in such cases. Because the victim must cope alone, “he or she often internalizes feelings of self-blame, anger, fear, confusion, and demoralizing anguish, shame, and sadness generated by the incest.

This internalization or repression of anger and anxiety is a survival mechanism known as “accommodation”... the victim often blocks out the experiences for many years.” It has also been found that incest victims often meet the diagnostic criteria for Post-Traumatic Stress Disorder (PTSD). PTSD is similar to “accommodation” as the victims attempt to repress psychologically unacceptable experiences until a later time in life when it might be possible to cope with them.

This may prevent the sexual assault victim from taking civil action against the offender within the applicable Statute of Limitations period. [ 25 ] WP submits that admissions made by OW during her examinations clearly indicate that she knew of the alleged sexual assaults by her brother, and the damage to her, decades before she filed her action. Those admissions, according to WP, are clearly reflected in the transcripts of her questioning which are reproduced at para 2 of WP’s brief filed in this application.

OW was last questioned on 21 March 2011. [ 26 ] It is established law that the admissions relied upon by WP must clearly show that OW’s action is statute-barred. These admissions must be plain, unambiguous, and unequivocal, failing which the

summary judgment application will fail, and the matter will go to trial. [ 27 ] It is a futile exercise, prejudicial and unjust to compel a party to undergo a full trial when the action could have been brought to an earlier conclusion on the foundation of admissions made by one of the parties during questioning under oath. [ 28 ] The questions to be asked are, “when did it become evident or apparent?” or “when did the incest victim discover the connection between the harm she suffered and her childhood history?” The answer to those questions enables the court to decide the date when the cause of action crystalizes. [ 29 ] WP asked the Court to review the transcript of OW’s questioning.

In reviewing the transcript of OW’s testimony under oath, I find the following admissions, which I will summarize from the transcripts. [ 30 ] At pages 287 and 278 of the transcript, OW indicates that she was clearly aware of the sexual assault. She told her father when she was 50 years old, which would have been in 1983.

[ 31 ] At pages 289 and 291, OW indicates that sometime in 1972 or earlier, she and her sister E, were both linking the alleged abuse by WP to problems they were having in their lives. They were then actively contemplating suing WP for their damages.

They appear to know of their rights and options to sue WP. [ 32 ] Page 292 demonstrates that, in OW’s discussions with her sister E, OW clearly understood that she and E could then sue WP for the damages that were caused by the alleged sexual assaults, at some time in 1972 or earlier. [ 33 ] At pages 293 and 294 OW, in her discussions with E, indicates that she was aware of the link between the alleged sexual assaults and problems in her life. She knew she could sue WP then, and her sister E would not join her.

OW then told E she was going to sue WP, plainly indicating her awareness of her right to do so as early as 1972, when these discussions took place. [ 34 ] At pages 294 and 295, OW reveals that she did not sue WP at the time she and E contemplated this back in 1972 because E said she would deny the sexual assaults. [ 35 ] At pages 298 and 299, OW again confirms that the only reason she did not sue WP at the time she and E contemplated it in 1972, was because E said she would deny it.

OW said that there was no other reason. [ 36 ] At pages 318 and 319, OW confirms that she and E discussed how WP’s sexual assaults caused problems in their relationships with their respective husbands, indicating an awareness of the causal link between the abuse and their damages. [ 37 ] At pages 319 and 320, OW answers that she was aware of the impact that the sexual abuse was having on her relationships by the early 1950’s, almost 50 years before she filed her statement of claim in 1999. [ 38 ] At pages 323 and 324, OW states her reason for suing WP was that after the death of their mother, she was upset by his statements to her about their mother’s estate.

She acknowledges that she knew much earlier that she could sue WP for the alleged abuse, but chose not to until after their mother’s death when WP angered her with respect to matters involving their mother’s estate. [ 39 ] I also find that the testimony of Dr. Maria Eriksen, during her de bene esse examination, plainly indicates that the respondent knew of the causal link between the sexual assaults by WP and their impact on her life, decades before she filed her action. [ 40 ] At pages 57 and 58 of her transcript, Dr.

Eriksen confirms that in her opinion OW would have been aware of the consequences of the alleged sexual abuse by WP sometime during the period 1952 and 1966, and by 1966 would have been aware of the extent of the damage allegedly caused by WP. At page 63 Dr. Eriksen also confirms that OW was aware of the harm she was suffering in her relationship with her husband that led to a divorce around 1966, and that she was aware of who was responsible for those problems.

It was WP. [ 41 ] As stated in M(K) , the tort claim, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. In M(

K) that discovery occurred only when the applicant entered therapy. The lawsuit was commenced promptly thereafter. La Forest J, for the majority said at paragraph 30: It is at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes. [ 42 ] And at paragraph 48 he went on to say:

The close connection between therapy and the shifting of responsibility is typical in incest cases. In my view this observed phenomenon is sufficient to create a presumption that certain incest victims only discover the necessary connection between their injuries and the wrong done to them (thus discovering their cause of action) during some form of psychotherapy. [ 43 ] I find that OW’s admissions unmistakenly show that she appreciated the causal link between her injuries and the alleged sexual assault, without the benefit of Dr. Eriksen’s therapy, decades before she filed her Statement of Claim. As a result the presumption referred to in M(

K) does not apply. [ 44 ] The limitation date in OW’s case would start when she was aware of the causal link between her problems, or the harm, and the alleged sexual assault. This occurred well before she was in therapy. [ 45 ] I find that OW was probably aware of this link as early as the 1950’s. She certainly was aware of it by the time she and her sister E were discussing suing WP for the alleged sexual assaults, at least ten years before E died in 1982, which would place them in 1972 at the latest. This is 27 years before the Statement of Claim was filed in 1999. There is no conflicting evidence on that time-line. [ 46 ] P(

D) v. S(W) , supra , is distinguishable. That was not a case dealing with admissions. [ 47 ] This action was commenced on February 11, 1999. The current Limitations Act , RSA 2000, c L-12, applies only to actions commenced on or after 1 March 1999. As such this action is governed by the Limitations Act , RSA 1980, c L-15 .

Section 51(

b) of the Act provides for a two-year limitation period in a case such as this.

Section 51 reads: Except as otherwise provided in this part an action for (

b) trespass to the person, assault, battery, wounding, or other injury to the person, whether arising from an unlawful act or from negligence or from breach of statutory duty may be commenced within two years after the cause of action arose and not afterwards. [ 48 ] There are good reasons, well known to many, for statutes of limitations. Over time memories fade, evidence is lost or changes, records vanish, witnesses disappear, get disabled, or pass away. Here the allegations go back 70 years. E, OW’s sister, Dr. Eriksen, and OW’s mother have all passed away. WP has suffered a stroke.

Much of the evidence is lost or tainted. [ 49 ] As already discussed when referring to M(K) , sometimes, regardless of the passage of time, limitation periods begin when the claimant discovers the harm from sexual abuse long after it occurred. Taking the latest possible time in this case, being when OW and her sister E were discussing suing WP sometime before 1972, the limitation date would have expired in 1974 at the latest.

As this action was commenced some 25 years later in 1999, it is statute-barred. [ 50 ] The cross application to have the limitation period issue and the merits of the case heard at a trial is dismissed. Heard on the 30 th day of January, 2012. Delivered orally on the 31 st day of January, 2012. Dated at the City of Calgary, Alberta this 17 th day of April, 2012.

Bryan E. Mahoney J.C.Q.B.A. Appearances: Peter J. Major and Andrew E. Stead, McMillan LLP for the Plaintiff Nestor Makuch, Wheatley Sadownik for the Defendant _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Bryan E. Mahoney _______________________________________________________ Please note a correction has been made to paragraph 9 of page 2, the word deliberating has been replaced with debilitating.