WP v Alberta (No. 1), 2013 ABQB 295

Court of Queen ’ s Bench of Alberta Citation: WP v Alberta (No. 1), 2013 ABQB 295 Date: 20130523 Docket: 0803 03417 Registry: Edmonton Between: WP, MPE and EPO Plaintiffs/Respondents - and - Her Majesty the Queen in Right of Alberta and Attorney General of Alberta Defendants/Applicants Brought under the Class Proceedings Act , SA 2003, c C-16.5 Corrected judgment: A corrigendum was issued on June 24, 2013; the corrections have been made to the text and the corrigendum is appended to this judgment.

Corrected judgment: A corrigendum was issued on May 31, 2013; 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 Associate Chief Justice

J.D. Rooke _____________________________________________________ I. Introduction [ 1 ] The Plaintiffs applied for certification as a class proceeding under the Class Proceedings Act , SA 2003 c C-16.5 (the CPA). The Defendants (Alberta) made a cross application for

summary judgment on the basis that the Plaintiffs ’ claims are barred under the Limitations Act , RSA 2000, c L-12. This decision relates to the cross-application by Alberta for

summary judgment. For the reasons that follow, I find that the application of Alberta must prevail. I concurrently issue provisional reasons on the application for certification ( 2013 ABQB 296 ). [ 2 ] In this action, commenced in 2008, the Plaintiffs alleged that students at the Alberta School for the Deaf (ASD) were subjected to physical, sexual, and emotional abuse by teachers, staff, and other students between 1955 and 1996. Alberta argued that the Plaintiffs ’ claims are barred by the ultimate limitation period of ten years. [ 3 ]

Summary judgment is available on the basis of a limitations defence: Jackson v Canadian National Railway , 2012 ABQB 652 at paras 126-7 (S Martin J) , relying upon Borchers v Kulak , 2009 ABQB 457 at para 36 , 479 AR 136 (Verville J) ; and Edwards v Fisher , 2010 ABQB 594 at para 19 (Thomas J) . II. Parties ’ Positions [ 4 ] Alberta argued there is no genuine issue for trial because the Plaintiffs ’ claims are barred by the ultimate ten year limitation period under s 3(1)(

b) of the Limitations Act , and the limitation period was not suspended by age, fraudulent concealment, or disability. [ 5 ] Alberta argued that an action must be summarily dismissed where it is plain and obvious that no genuine issue for trial exists and the Court must dismiss a claim if the claim is barred by a limitation period: Papaschase Indian Band No 136 v Canada (Attorney General) , 2008 SCC 14 at paras 10-12 , [2008] 1 SCR 372 . [ 6 ] The Plaintiffs asked this Court to dismiss Alberta ’ s

summary judgment application, or alternatively, to adjourn the application until the individual issues are determined. The Plaintiffs argued it is unfair to decide the limitations issue before document and oral discoveries are completed because the Court cannot weigh conflicting evidence or make factual findings with respect to the limitation period before these events.

Further, the Plaintiffs argued that, in class proceedings, the merits of an individual plaintiff ’ s case are addressed at the individual issues stage, after the action is certified and after the Plaintiffs are successful at the trial of the common issues. III. Analysis [ 7 ] Rule 7.3 in the Alberta Rules of Court, Alta Reg 124/2010 provides in part: 7.3

(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds:

(

b) there is no merit to a claim or part of it; [ 8 ] The test for

summary dismissal was set out in Murphy Oil Co v Predator Corp , 2006 ABCA 69 at para 25 , 384 AR 251 : (

a) the applicant must show evidence that there is no genuine issue for trial; (

b) if the applicant meets this burden, the responding party may bring evidence to persuade the court that there is a genuine issue to be tried. [Emphasis added.] [ 9 ] The defendant who seeks

summary judgment application must prove there is no genuine issue of material fact requiring trial and cannot simply rely on mere allegations or the pleadings. If the defendant does prove this, the burden shifts to the plaintiff, who must either refute or counter the defendant's evidence, or risk

summary dismissal: Papaschase , at para 11. Where a claim is barred by the operation of a limitation period, there is no genuine issue for trial: Papaschase , at para 12. [ 10 ] Limitation periods provide a balance between treating a plaintiff fairly with regard to their circumstances and protecting a defendant ’ s entitlement to “ organize [their] affairs without fearing a suit: ” Papaschase , at para 13. [ 11 ] Alberta argued that any unfairness to the Plaintiffs who lose the right to sue is offset by the potential prejudice to Alberta.

Trying very old cases is, as C ô t é JA noted in Bowes v Edmonton (City) , 2007 ABCA 347 at paras 119 - 123 , 425 AR 123 , more like a game of roulette, than a serious exploration of the truth. Moreover, there is a high social cost of keeping information around for long periods of time. However, if an individual plaintiff loses part of a collective right to sue by virtue of this decision, he or she continues to have a right to pursue an individual claim, if individually proven factors suspend the limitation date: s 40 of the CPA. A.

Ultimate Limitation Period [ 12 ] The Plaintiffs ’ claim for certification is barred by the ultimate ten year limitation period. Section 3(1) and 3(3) of the Limitations Act states: 3

(1) Subject to

section 11, if a claimant does not seek a remedial order within (a) 2 years after the date on which the claimant first knew, or in the circumstances ought to have known, (

i) that the injury for which the claimant seeks a remedial order had occurred, (ii) that the injury was attributable to conduct of the defendant, and (iii) that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding, or (b) 10 years after the claim arose ,

whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

(3) For the purposes of subsection (1)(b), (

a) a claim or any number of claims based on any number of breaches of duty, resulting from a continuing course of conduct or a series of related acts or omissions, arises when the conduct terminates or the last act or omission occurs ; (

b) a claim based on a breach of a duty arises when the conduct, act or omission occurs; (Emphasis added) [ 13 ] Alberta argued that the Plaintiffs ’ claim was commenced after the expiry of the ultimate limitation period, therefore Alberta is entitled to immunity from all of the Plaintiffs ’ claims. [ 14 ] Alberta argued that the ultimate limitation period runs from the time of the wrong, not from the time it was discovered, relying upon Bowes , at para 151 . Justice C ô t é stated the following in respect of the ultimate limitation period: [Section 3(3) is plain].

It says that the time under the alternative absolute period starts to run from the negligent or wrongful act or omission itself. Therefore, one should not wait until the harm occurs. Where the Legislature adopts a specific event to start time running, that displaces the former discoverability rule : Ryan v.

Moore , 2005 SCC 38 , [2005] 2 S.C.R. 53 , 334 N.R. 355 (para. 27 ). (Emphasis added) [ 15 ] Alberta argued that the ultimate limitation period applies to all claims, including those involving physical and sexual abuse, as long as the limitation period is not suspended on the basis of fraudulent concealment or disability: N(EV) v Alberta, 2009 ABQB 117 at paras 26-31 , 473 AR 188 (Hanebury, Master) .

Finally, Alberta noted that the Plaintiffs ’ allegations are limited to each of the Plaintiffs period of attendance at the ASD, because each claim is an allegation of abuse by other ASD students or staff. [ 16 ] The Plaintiffs argued that the ultimate limitation period was suspended under the Limitations Act . [ 17 ] I find, on the basis of the affidavits before me, that the Plaintiffs ’ claims are barred by s 3(1)(

b) of the Limitations Act . The ten years starts to run from when the conduct, act, or omission occurred. Where the legislature has adopted a specific event to start the time running, discoverability no longer applies: Bowes , at para 151 ; Ryan v Moore , 2005 SCC 38 at para 27 , [2005] 2 SCR 53 . [ 18 ] Based on the affidavits on behalf of the Plaintiffs, EPO, SR, MPE and WP, their claims arose between 1959 and 1991.

The Statement of Claim was filed on March 11, 2008, approximately 17 years after the most recent alleged wrongful acts occurred. [ 19 ] Alberta noted that a number of ASD principals and witnesses have died, and therefore much of their evidence has been lost. In Bowes , C ô t é J stated, at para 127, “ [a]fter some years, a defendant cannot prove a proper defence, or even disprove the plaintiff ’ s allegations ” .

Furthermore, it is counterproductive and unjust to judge conduct by standards or rules which only came into force years after the conduct occurred: Bowes , at para 127 . [ 20 ] Unless the Plaintiffs can establish that the limitation period was suspended, the Plaintiffs ’ claims are statute barred. B. Was the Ultimate Limitation Period Suspended?

[ 21 ] The ten year limitation period in s 3(1)(

b) may be suspended during the following periods of time: a. while the Plaintiffs were minors; b. a period during which Alberta fraudulently concealed the fact that the injury occurred; or c. while a Plaintiff was a person under disability: Limitations Act , s 4, 5, 5.1. [ 22 ] Alberta argued the Plaintiffs have not proved any of these factors justifying suspending the limitation period. [ 23 ] I note here that the Plaintiffs stated that they will seek leave to amend the pleadings, in order to plead that the Plaintiffs were under disability at the relevant periods and that Alberta fraudulently concealed the cause of action, but an application for

summary dismissal requires evidence, not just pleadings. 1. Age [ 24 ]

Section 5.1(2) of the Limitations Act states in part “ the operation of limitation periods provided by this Act is suspended during the period of time that the claimant is a minor. ” [ 25 ] Alberta conceded that the Plaintiffs were minors for at least part of the time following certain causes of action. However, Alberta pointed out that each of the Plaintiffs reached 18 years of age more than 10 years before the claim was commenced. [ 26 ] On the basis of the pleadings and the materials before me, I find that the Plaintiffs reached the age of majority more than 10 years before the claim was commenced.

Therefore, age does not suspend the ultimate limitation period. 2. Fraudulent Concealment [ 27 ]

Section 4 of the Limitations Act sets out an exception to the ten year limitation period: 4(1) The operation of the limitation period provided by section 3(1)(

b) is suspended during any period of time that the defendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred .

(2) Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1) (

b) was suspended. (Emphasis added) [ 28 ] To establish fraudulent concealment, the Plaintiffs must show on a balance of probabilities: (

a) Alberta perpetrated some kind of fraud; (

b) the fraud concealed a material fact and the injury for which the remedial order is sought; and (

c) the Plaintiffs exercised reasonable diligence to discover the fraud.

Ambrozic v Burcevski , 2008 ABCA 194 at para 21 , 433 AR 25 ; see also Huet v Lynch , 2000 ABCA 97 , 255 AR 359 . [ 29 ] Alberta argued that the Plaintiffs have not provided sufficient evidence relevant to fraudulent concealment and have thus failed to satisfy the requirements under the Ambrozic test. [ 30 ] The Plaintiffs argued Alberta engaged in fraudulent concealment by ASD: (

a) instructing students not to tell anyone about the alleged abuse; (

b) staff taking inadequate action when they learned about the abuse; (

c) providing inadequate education to the students such that their communication with the hearing world was impeded during and after their time at the ASD; and (

d) failing to properly educate the students about abuse and to institute proper procedures to report abuse. [ 31 ] The Plaintiffs also argued that they were not aware they could sue Alberta. In their written submissions, the Plaintiffs argued that discoverability remains relevant to their claims, because it matters when each cause of action was discoverable for each individual, and also during what periods disability or fraudulent concealment suspended the limitation period.

I will assume for the purposes of this analysis that it is arguable that if Alberta fraudulently concealed the material facts of injury, then discoverability could be relevant to determine when the fraud no longer concealed the harm. [ 32 ] I further note that s. 4 of the Limitations Act says that the limitation period is suspended “ during any period of time of fraudulent concealment ” . Therefore, I conclude that a fourth element must be proved by the Plaintiffs in addition to the Ambrozic factors: the time period during which there was a fraudulent concealment.

Once the alleged fraudulent concealment ended or the Plaintiff became aware of the wrong, the limitation period would start to run again. For a

summary judgment application, the Plaintiff need only raise some evidence sufficient to demonstrate that there is a triable issue as to how long the limitation period was suspended. (

a) Fraud i. The law [ 33 ] The Plaintiffs must first show that Alberta committed some type of fraud. Fraudulent concealment requires an element of unconscionability, which can include an active concealment or a failure to disclose: Ambrozic , at para 23 . The Court in Ambrozic also held that the defendant must know of the wrong, otherwise they are protected by statutory limitations: at para 23. [ 34 ] Alberta argued that the Plaintiffs have not established that Alberta deliberately concealed the wrongfulness of any alleged abuse or failed to disclose the injuries alleged by the Plaintiffs.

For example, EPO stated that she was unaware of her rights and that Alberta did not teach her about sexual, physical, emotional, or mental abuse, but Alberta argued that this does not constitute intentional or deliberate concealment, as contemplated by the Limitations Act . [ 35 ] The Court must ask whether any of the alleged acts can constitute fraud.

The bases for the fraud claim are that ASD staff told students not to tell anyone about the alleged abuse; ASD staff took inadequate action when they learned about the abuse; ASD provided inadequate education impeding the students ’ communication with the hearing world during and after their time at the ASD; and ASD failed to properly educate the students about abuse and to institute proper procedures to report abuse. The latter three allegations

actually constitute the basis of several of the claims against Alberta for negligence and breach of fiduciary duty.

Logically, they cannotbe both the injury and the concealment of the same injury, although arguably each could conceal the other injuries. [36] Assuming there was evidence to establish that the ASD staff took inadequate action when they learned about the abuse (aquestion that requires an assessment of such factors as the appropriate standard of care, on which no evidence was lead), the fact thatASD did not respond adequately is not evidence of fraud or concealment of any of the wrongs, but of negligence or breach of duty. [37] Providing inadequate education is also part of the claim for negligence, again raising the question of the appropriate standardof care, upon which the Plaintiffs lead no evidence. [38] For such evidence to prove fraud, there must also have been “some abuse of a confidential position, some intentionalimposition, or some deliberate concealment of facts.” (Halsbury's, 4th ed., vol. 28, para. 919, at p. 413, cited in M (

K) v M (H) [KM vHM], (SCC), [1992] 3 SCR 6 (at par 65). In other words, the plaintiff must establish some element of unconscionabilityin a special relationship between the parties: Kitchen v Royal Air Forces Association, [1958] 2 All ER 241 (CA) at p 249. In Huet, atpara 35, the Court noted that lack of malice or dishonesty may not be necessary and that: Such unconscionable conduct could be a defendant's active concealment of some wrongdoing, or it could be his passive failure to informthe plaintiff of some wrongdoing he knowingly or recklessly committed: Wilson v.

McDonnell Douglas Canada Ltd. (1985), (ON SC), 4 C.P.C. (2d) 197 (Ont. S.C.). [39] Does providing inadequate education constitute fraud in the broad sense of equitable fraud set out in Kitchen and confirmedin Guerin v The Queen, (SCC), [1984] 2 SCR 335?

In Huet, the Court held that there was an issue for trial arisingfrom the fact that the hospital held the Plaintiff in the psychiatric ward, against her will, contrary to the applicable statutory provisions.The Court held that this behaviour could be found at trial to rise to the level of unconscionability necessary to establish equitable fraud.Here, a failure to provide adequate education hindering communication with the hearing world may raise an issue of unconscionabilityand could constitute fraud in the very broad sense if there is some evidence that the Plaintiffs were inadequately educated and could notdeal with the hearing world. [40] Similarly inadequate education about sexual abuse, if established, could constitute such fraud, depending on the evidence. [41] Finally, the allegation that ASD staff told the students not to tell anyone about the abuse could support an assertion of fraud.In M (

K) v M (H), the Supreme Court of Canada, citing Halsbury’s 4th ed, vol. 28, para 919, at p 413, noted that fraudulent concealmentmay arise from the manner in which the alleged act is performed (at para 64). In the context of incest, the Court noted: As the authorities make clear, incest is really a double wrong -- the act of incest itself is followed by an abuse of the child's innocence toprevent recognition or revelation of the abuse ...

I should add that given the nature of the concealment in abuse cases, namely, that theabuser compels the complicity of the victim in denying the harm done to her, it may be that the doctrine can operate in a tort as wellas fiduciary context to toll the limitation period because of the deliberate attempts at concealment on the part of the abuser. (Emphasisadded) [42] Thus, ASD’s staff’s directions to the students to not tell of their abuse could conceivably constitute concealment as the abusercompelled the victim’s complicity in keeping the secret.

However, the facts in evidence do not support the Plaintiffs’ allegation that theywere unaware of the tort and denied the harm done to them. ii. The evidence [43] Alberta was in a “special relationship” of trust with the Plaintiffs, but without further evidence of intentional imposition ordeliberate concealment, I find that the evidence before me is insufficient to establish fraud. [44] In MPE’s examination on her affidavit she indicated she was unaware of her right to sue the Defendant (TR April 12, 2012,pp19-22). However, I have reviewed her examination at length.

In it she confirmed that by the time she graduated from ASD, she had

heard the term “ rape, ” she knew that she had herself been raped, and she knew that it was wrong. It is clear, therefore, that MPE knew that abuse had occurred. [ 45 ] MPE also stated that she was raped by a student in or around 1971 or 1972, who was not a student at ASD. At the time of this incident, she recalled that the police picked up the student, took him to jail, and then Father Bauer came to see her to explain court proceedings. She stated: No.

The police picked up Ethan, took him to jail, and the reverend then came to visit me and to explain you ’ ll – you know, about the court proceedings that were upcoming and talking about suing, and that is where I learned a lot of this information about the possibility of a lawsuit. He was very supportive. MPE TR April 12, 2012, p 21, ll 36-42. [ 46 ] I infer from all of this evidence that MPE knew she had been raped and that rape was wrong. [ 47 ] The Plaintiffs also argued that MPE confused suing Alberta civilly, as opposed to criminal proceedings, the form of which would constitute fraudulent concealment.

For example, in the examination: Q And by the time you graduated, you knew that if someone raped you, you could sue them? A Well, I – I knew that they would go to jail, and I wouldn ’ t get anything, and I was a little pissed off. MPE TR, April 12, 2012, p19. [ 48 ] However, I find that this was not fraudulent concealment, but a mistake by her, (ignorance of the law, if you will) as to how to remedy the wrong she recognized, a matter to which I will return. [ 49 ] Also, MPE stated in her affidavit that she told a teacher about being raped and he said nothing to her.

However, in examination on her affidavit on April 12, 2012, MPE clarified that this conversation with the teacher happened in 2001 (TR p 14, ll 28- 30). Alberta pointed out that this was not a conversation with the teacher when he was in his role with the school, but in fact decades later. I find therefore her evidence in the affidavit which implies that a teacher ignored her telling him about the abuse is misleading and does not constitute fraudulent concealment of this incident by the ASD. [ 50 ] I conclude that, on MPE ’ s evidence, it is clear that there was no fraud.

Unlike in Huet , MPE knew that wrongs had been committed against her, and thus the special relationship between her and Alberta was not used to conceal the fact of the wrongs committed. [ 51 ] EPO alleged physical and sexual abuse by other students and several incidents involving ASD staff and indicated that she left the school because of the abuse. That statement alone indicates that she was aware of the injury, that she blamed the school and its staff, and therefore she left the school.

Her second affidavit asserts that she was unaware of what her rights were, including that she had a right to sue, but as with MPE, that is not evidence of fraud or concealment, but of her own ignorance of the law. EPO acknowledged that she knew that the alleged abusive conduct was wrong by the time she was 19. Again, in the absence of evidence that EPO was unaware of the wrong, there can have been no fraud. [ 52 ] WP alleges physical abuse, but does not provide any evidence that could constitute fraud within the meaning set out by the Supreme Court in M (

K) v M (H) . Moreover, in examination on his affidavit he acknowledged that he thought that the actions he complained of were unfair.

[ 53 ] Based on this affidavit evidence, I find that there was no fraud. (

b) Fraud Concealed a Material Fact and the Injury [ 54 ] In Huet , the Court of Appeal held that it is not sufficient for the plaintiff to simply prove there has been fraud, the plaintiff must prove that the fraud “ concealed the existence of the plaintiff ’ s cause of action ” (at para 28). In other words, the fraud must conceal a material fact that the plaintiff must prove to succeed at trial.

In Huet , the defendant ’ s false assertion that it had authority to hold her could constitute fraudulent concealment (at para 37). [ 55 ] Alberta argued that, based on the wording of the statute, in order to show fraudulent concealment, the Plaintiffs must show Alberta fraudulently concealed the fact of the injury, not concealment of the right to a remedy. Alberta argued that the fact someone has no idea they can sue does not meet the Ambrozik requirement for evidence of intentional or deliberate concealment of the facts. In my view, this shows ignorance of the law, not fraudulent concealment.

Ignorance of the law does not postpone the ultimate limitation period: Salna v Awad , 2011 ABCA 20 at para 28 ; Laasch v Turenne , 2012 ABCA 32 at para 24 , 522 AR 168 . [ 56 ] Alberta argued that the fact of the injury was not concealed because the Plaintiffs knew about their injuries and have admitted that they were aware that the alleged abuse was wrong, more than 10 years before the claim was filed. [ 57 ] The Plaintiffs argued that they were not taught about abuse or how to prevent it.

As evidence of this, the Plaintiffs pointed to a letter from a social worker attached as Exhibit W to Simonson ’ s Affidavit of January 30, 2012 at p 669-671. The letter described sex education at the ASD. The letter was dated June 3, 1991. It stated, in part, that the school did not have any formal program for adolescents relative to sexual abuse, apart from every couple of years a speaker would come in from a local Sexual Assault Centre to give an assembly for junior and senior high school students on topics such as sexual harassment and rape. [ 58 ] I have reviewed this letter.

In my view, this paragraph must be read in the context of the entirety of the letter which outlines programming the ASD started in 1982 for younger aged school children on sexual abuse prevention. It is misleading for the Plaintiffs to use this one paragraph as evidence that the school had no formal programming on the subject. The letter clearly indicates that the school did, in fact, have such programs, for younger aged students.

The letter also describes an information book on sexual abuse for the hearing impaired, which was “ excellent for teens and adults. ” [ 59 ] I do not find that this constitutes fraudulent concealment. [ 60 ] Furthermore, MPE stated in examination on her affidavit on April 12, 2012 (TR p 14, ll 30-35) that she thought of suing once she learned of the Jericho Hill School settlement around 1997: August, year 2000, is when I started to find out about the Jericho Hill School issue and that there was a lawsuit happening there.

And all these things - through discussions with other people in the deaf community, I learned a lot about my own situation and how it wasn ’ t fair. And so then I contacted my counsel. [ 61 ] I find, based on her evidence, that MPE knew she had been injured, she knew it was wrong, and she had contacted a lawyer as early as 2000. Even if this was the first time she discovered her injury, which I do not accept, discoverability is not relevant to the ten year limitation period.

This does not constitute concealment of a material fact. [ 62 ] Alberta also argued that WP, who worked as a filing clerk for the Supreme Court of Ontario in 1984, ought to have known that the alleged abuses he suffered were actionable under the law. However, in my view, the fact that he worked for a court does not, by

itself, impute knowledge of his rights, although it might give more focus to the need to pursue those rights. [ 63 ] Finally, in her affidavit, EPO stated that she did not know ASD students could have sued for the abuse until 2004. However, Alberta pointed out that EPO participated in legal proceedings when she was a teenager, related to where she should live because of alleged abuse suffered at home. Also, in examination on her affidavit on March 1, 2012, EPO acknowledged that she attended a sexual assault centre in 1990, although she could not recall what she spoke about (TR p 47-48).

From this I infer she had sufficient knowledge to pursue her rights. [ 64 ] Alberta stated that it was clear that the Plaintiffs could testify in great detail about what happened to them, therefore there was no fraudulent concealment of the fact of the injury. The test does not consider concealment of what you should do about an injury.

Fraudulent concealment relates to concealing the fact of the injury, not the right to claim for the injury. [ 65 ] I find, based on these examples, that there is evidence that each of the Plaintiffs knew about their injury and Alberta did not conceal any material facts. [ 66 ] Further, fraudulent concealment suspends the running of the limitation period for the period of the concealment. Even assuming that the ASD ’ s staff concealed the cause of action, that concealment would have ended once the students left the school or once Alberta ceased operating the school, 13 years before the Claim was filed. (

c) Exercised Reasonable Diligence to Discover the Fraud [ 67 ] Depending on the facts of the case, a plaintiff is required to exercise “ reasonable diligence ” to uncover the fraud, and therefore uncover the cause of action: Huet , at para 29 . [ 68 ] Alberta argued the Plaintiffs provided no evidence that they exercised any reasonable diligence to discover any alleged fraud. [ 69 ] The Plaintiffs have not shown that there was fraud or that material facts or injury were concealed. It is therefore unnecessary to proceed onto whether they exercised due diligence to discover the fraud.

To the extent that the materials showed that the Plaintiffs did exercise due diligence, by either speaking with a lawyer or a priest, it occurred over ten years ago. [ 70 ] In conclusion, I find there was no fraudulent concealment. The ten year limitation period is not suspended by s. 4 of the Limitation Act . (

d) Period of suspension [ 71 ] Finally, the Plaintiffs have provided no evidence of the period of time during which they allege Alberta fraudulently concealed the fact of an injury from them. As noted above, more than 13 years have passed since the school closed and 17 years since the last complained of wrongful act.

If the limitation was suspended for some period of time within those years, the Plaintiffs should have provided evidence of when the limitation period stopped running, and if applicable, began to run again. [ 72 ] Arguably, some action by Alberta could continue to constitute concealment after the school closure. For example, inadequate education impairing the Plaintiffs ’ ability to interact with the hearing world, might constitute concealment that would continue until claimants learned to function in the hearing world. However, the Plaintiffs provided no evidence of what those time periods might be.

The evidence demonstrates that all three were employed, all three were involved in the legal system at various times, all three sought and received psychological counselling, and they accessed various social services. Thus, their own evidence is that they were able to function in the hearing world during various periods in their life.

3. Disability [73]

Section 5 sets out another exception to the limitation period: 5(1) The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a personunder disability.

(2) The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under thissection. (Emphasis added) [74] Disability is defined as 1(h) “person under disability” means (

i) a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacityis in effect under the Public Trustee Act, or (ii) an adult who is unable to make reasonable judgments in respect of matters relating to a claim; [75] Alberta argued the Plaintiffs provided no evidence of disability after the age of majority because the Plaintiffs have neverbeen disabled within the meaning of the Limitations Act, they did not plead disability properly, none of the Plaintiffs are acting throughlitigation representatives, and each is presented as an appropriate class representative.

Alberta argued that disability is about knowingright from wrong, not whether you know the legal nuances of your rights or responsibilities.

Therefore, Alberta stated the evidenceestablishes that each Plaintiff was not disabled within the meaning of the Limitations Act, and they have been managing their own affairssince they were 18 and also managing any mental health issues. [76] Alberta argued that the Plaintiffs cannot rely on disability without providing expert evidence establishing incompetence tomake decisions regarding commencing litigation: Martin v General Teamsters, Local 362, 2011 ABQB 412 at para 57 (Hall J).

Albertanoted that there is no medical evidence at all, and no evidence that the Plaintiffs suffered from repressed memory that disabled them. [77] Alberta relied on the affidavit evidence of Dr. Koch who stated that being deaf does not make an individual incapable ofrecognizing right from wrong and that deaf people are not generally disabled. Further, people with emotional disorders such asdepression are capable of functioning and managing their own affairs. However, Alberta pointed out Dr.

Koch has not treated or met anyof the Plaintiffs and he has not reviewed their medical records. [78] Alberta also relied on Wirtanen v British Columbia (1994) (BC SC), 98 BCLR (2d) 335 (BCSC) (MaczkoJ), at paras 20-24, involving British Columbia limitations legislation, as providing useful considerations to determine if an individual isdisabled. While the definition of “person under a disability” in British Columbia is different from the Alberta definition, the purpose andintention of the provisions are identical.

I note that while no Alberta decision has applied the factors set out in Wirtanen, they may behelpful. The court considered the following factors at paras 20-21: (

a) Is the plaintiff cognizant of the facts giving rise to the cause of action? For example, is the plaintiff aware that there was a motorvehicle accident, that she was injured and may be able to sue and collect money? (

b) Does the plaintiff understand the nature and purpose of the proceedings, including the respective roles of judge, jury and

counsel? (

c) Does the plaintiff comprehend the personal import of the proceedings? Is she able to form a rational judgment about the effect of the action on her interests? Specifically, she must be able to understand what costs mean and comprehend enough of the information provided to her to appreciate the consequences of winning and losing. (

d) Is the plaintiff able to comprehend legal advice being given to her? Is she able to instruct counsel and make critical decisions on counsel ’ s advice? [ 79 ] In response, the Plaintiffs argued that they are not required to provide sworn expert opinions from doctors treating them. Further, they argued their disability is proved because their mental, emotional, and physical condition prevented them from pursuing proceedings earlier. Specifically, the Plaintiffs stated that they suffered from mental health issues of varying degrees, including depression, schizophrenia, and substance abuse issues.

The Plaintiffs further asserted that they did not receive an adequate education in order to be sufficiently informed. [ 80 ] Finally, the Plaintiffs stated that Alberta took responsibility for almost all aspects of the students ’ lives at the ASD. As a result, the Plaintiffs argued that the students at ASD were isolated from the hearing world, therefore class members had difficulty learning appropriate behaviour.

Also, they had difficulty learning that what happened to them was wrong, if Alberta did not teach them about their rights, abuse, or appropriate behaviour. [ 81 ] Alberta stated that the Plaintiffs provided evidence of only “ difficulties in their life. ” They further argued that the Plaintiffs ’ arguments went to discoverability, which is not applicable to the ultimate limitation period. The ultimate limitation period runs from the date of the wrongful act, not the date it was discovered.

I find that many of the Plaintiff ’ s arguments in this regard did go to the issue of discoverability, which is not applicable to the ultimate limitation period. [ 82 ] Based on the pleadings and the materials before me, I find that the Plaintiffs do not fall within the definition of a “ person under disability ” according to the Limitations Act . There is evidence that the Plaintiffs were aware of the facts giving rise to the cause of action, and that while they had difficulties in their lives, they were not disabled from making life decisions since they left school.

They have provided no evidence of time frames within which they were allegedly disabled. [ 83 ] While MPE has been unemployed and on disability since 1990, there is no evidence that she was unable to make reasonable judgments regarding her claim. There is a distinction between being unable to work and unable to make reasonable decisions regarding a claim. EPO ’ s evidence is that she has been unemployed since 2001 or 2002, implying that she was working at some points before that.

She indicates that she spent some time in psychiatric hospitals, but gives no relevant dates upon which one could estimate a period of suspension of the limitation, or for that matter, evidence that during the time she was hospitalized she was unable to make reasonable judgments. There is even less evidence of WP ’ s disability from which to infer that he was unable to make reasonable judgments regarding the claim. [ 84 ] Therefore, I conclude the ten year limitation period has not been suspended by s 5 of the Act. IV. Conclusion [ 85 ] Alberta ’ s application for

summary judgment is granted. I provisionally issued Reasons for Judgment in the underlying

certification application ( 2013 ABQB 296 ). [ 86 ] The Plaintiffs ’ claims are barred by the ten year ultimate limitation period.

The Plaintiffs have not established that the operation of the limitation period was suspended by age, fraudulent concealment, or disability. [ 87 ] The Plaintiffs argued that, if the Court finds no triable issue with respect to the three named Plaintiffs ’ claims, they are still willing to represent the Class under s 2(4) of the CPA which allows an individual to be appointed as a representative plaintiff, even if they are not a member of the class. [ 88 ] In the alternative, if the Court found, as it did, that the named Plaintiffs ’ claims are statute-barred, the Plaintiffs sought that the Court allow the Plaintiffs to choose another representative Plaintiff, or Ms.

SR, who would use the assistance of a litigation guardian. [ 89 ] Neither of these proposals are appropriate because the Plaintiffs have failed to prove that there is a class of two or more people who have a valid cause of action under s 5(1)(

b) of the CPA. If these three plaintiffs do not, then it is doubtful that other students have such disabilities or could establish fraudulent concealment. In the result, if any individual former student has a disability or can establish fraudulent concealment on an individual basis other than those alleged here, he or she can bring an individual claim, relying on the provisions of s 40 of the CPA.

If more than two do so the Court may ultimately hear their case together or consolidate them. [ 90 ] Under this ruling, after all appeal periods have expired, the Plaintiffs are directed to immediately give notice to all potential class members of their rights flowing from s 40 of the CPA. Court direction can be sought if required. [ 91 ] Alternatively, even if a few class members can establish either disability or fraudulent concealment sufficient to create a class, a class proceeding would likely not be the preferable procedure under s 5(1)(

d) of the CPA, given the findings here and in the companion decision. [ 92 ] The parties may speak to costs within 60 days. Heard on the 8 th day of November 2012. Dated at the City of Edmonton, Alberta this 23 rd day of May 2013.

J.D. Rooke A.C.J.C.Q.B.A. Appearances: E.F. Anthony Merchant, Q.C. for the Plaintiffs G. Alan Meikle, Q.C. Alberta Justice for the Defendants Ward Branch Branch MacMaster LLP for the Defendants Date: June 24, 2013 _______________________________________________________ Corrigendum of the Reasons for Judgment of The Associate Chief Justice J.D. Rooke _______________________________________________________ 1. The citation number in Paragraph No. 1 was changed from 295 to 296 and Paragraph 1 now reads as follows: [1] The Plaintiffs applied for certification as a class proceeding under the Class Proceedings Act , SA 2003 c C-16.5 (the CPA). The Defendants (Alberta) made a cross application for

summary judgment on the basis that the Plaintiffs ’ claims are barred under the Limitations Act , RSA 2000, c L-12. This decision relates to the cross-application by Alberta for

summary judgment. For the reasons that follow, I find that the application of Alberta must prevail. I concurrently issue provisional reasons on the application for certification ( 2013 ABQB 296 ).

2. The citation number in Paragraph No. 85 was changed from 295 to 296 and Paragraph 85 now reads as follows: [85] Alberta ’ s application for

summary judgment is granted. I provisionally issued Reasons for Judgment in the underlying certification application ( 2013 ABQB 296 ). Date: May 31, 2013 _______________________________________________________ Corrigendum of the Reasons for Judgment of The Associate Chief Justice J.D. Rooke _______________________________________________________ The citation line and number have been corrected to read as follows: WP v. Alberta (No. 1), 2013 ABQB 295