E.V.N. v Alberta, 2013 ABQB 391

Court of Queen ’ s Bench of Alberta Citation: E.V.N. v Alberta, 2013 ABQB 391 Date: 20130731 Docket: 0601 06914 Registry: Calgary Between: E.V.N.

Plaintiff (Appellant) - and - Her Majesty the Queen in Right of Alberta, and Sisters of Our Lady of Charity of the Refuge, Sister Margaret Benedek also known as Sister Holy Rosary, Jane Doe #2 also known as Sister Good Counsel, Jane Doe #3 also known as Sister Immaculate Conception Marushechka, Jane Doe #4 also known as Sister Theresa, Jane Doe #5 also known as Sister Seven Dollars Defendants (Respondents) _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice K. D. Nixon _______________________________________________________ I. Background

[ 1 ] The Plaintiff (Applicant) commenced an action on June 7, 2006 against a number of defendants including Her Majesty the Queen in Right of Alberta (“the Crown”). The allegations against the defendants relate to the apprehension of the Plaintiff by the Crown in 1956 and her placement until 1958 in the care of the Sisters of Our Lady of Charity of the Refuge who operated the O'Connell Convent. The Plaintiff alleges that she was abused by the individual defendants whilst at the Convent.

It is alleged that the apprehension by the Crown was wrongful and in breach of the Crown's duties to the Plaintiff in that the Crown failed, inter alia , to place her in a safe environment, supervise the placement and prevent the abuse. [ 2 ] In her affidavit evidence, the Plaintiff states that it was not until 2006 that she began to realize the damaged caused by her experiences between 1956 and 1958 and began to tell others what had happened to her. [ 3 ] The Crown pleaded the Limitations Act , R.S.A. 2000, c.

L-12 (the “ Act ”) and applied to the Master in Chambers pursuant to Rule 159(2), the predecessor of Rule 7.3(1)(b), to dismiss the claim as statute barred pursuant to s. 3(1)(

b) of the Act as the action was commenced more than 10 years after the claim arose. The Master in Chambers, on February 25, 2009, dismissed the Plaintiff's action on that basis. [ 4 ] The Plaintiff filed a Notice of Appeal from the decision of the Master on May 27, 2009 and filed an Amended Notice of Appeal on May 28, 2009. In August, 2009, the Plaintiff was cross-examined on her affidavit filed on July 6, 2009 in support of her appeal. In January, 2013, the Plaintiff answered her undertakings from the cross-examination.

The appeal from the Master's decision proceeded on June 14, 2013 pursuant to Rule 7.3(1)(b). [ 5 ] The standard of review on appeal from the Master is correctness: Bahcheli v. Yorkton Securities Inc. 2012 ABCA 166 . An action can be dismissed on a

summary basis where it is “plain and obvious that the action cannot succeed.” De Shazo v. Nations Energy Company Ltd 2005 ABCA 241 . II. Limitations Act [ 6 ] The Act provides as follows in s. 3: 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 theclaim. ...

(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 aseries of related acts or omissions, arises when the conduct terminates or the last act or omission occurs; (

b) a claimed based on a breach of a duty arises when the conduct, act or omission occurs; s. 13 An action brought on or after March 1, 1999 by an aboriginal people against the Crown based on a breach of a fiduciary dutyalleged to be owed by the Crown to those people is governed by the law on limitation of actions as if the Limitation of Actions Act, RSA1980 c. L-15, had not been repealed and this Act were not in force. III. Issues [7] Two issues arise: 1. is the Plaintiff's action barred by virtue of the ultimate limitation period in s. 3(1)(

b) of the Act; and 2. does s. 13 of the Act apply to the Plaintiff's action against the Crown? IV. Is the Plaintiff's claim barred by s. 3(1)(

b) of the Act? A. Position of the Plaintiff [8] The Plaintiff submits that the Master's decision is in error and that the Master did not determine when the limitation periodcommenced to run, or when it expired. She argues that the issue of the application of any limitation period must be determined by a trialjudge hearing all of the evidence. [9] Specifically, the Plaintiff submits that her claim is not statute barred by s. 3(1)(

b) of the Act as her claim did not arise untilshe knew she had a claim in 2006. She argues, therefore, that there is a discoverability component to s. 3(1)(b). [10] In support of her position, the Plaintiff relies on the Supreme Court of Canada decisions in M.(K.) v. M.(H.), (SCC), [1992] 3 S.C.R. 6 and Peixeiro v. Haberman, (SCC), [1997] 3 S.C.R. 549 and the Alberta Court of Appealdecision in J.N. v. G.J.K. 2004 ABCA 394. [11] In M.(K.) v M.(H.), the plaintiff had been sexually abused by her father from 1965-1974. She started her action in 1985.

Thedefendant applied for dismissal of the action on the basis that the action was statute-barred. The Ontario Limitations Act provided that anaction for assault must be commenced “within four years after the cause of action arose.”

[12] Speaking for the Court on this point, La Forest, J. stated that the plaintiff's tort claim did not accrue until she was “reasonablycapable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and her injuries.” (at p. 24) Hefurther stated (at p. 35): In my view the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisite that theplaintiff have a substantial awareness of the harm and its likely cause before the limitation period begins to toll.

It is at the moment whenthe incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of actioncrystallizes. [13] In Peixeiro, the court applied the discoverability principle to determine if the plaintiff’s action was statute-barred. The Courtstated at para 37: ... I adopt Twaddle, JA’s statement in Fehr v. Jacob (1993), (MB CA), 14 C.C.L.T. (2d) 200 (Man.

CA), at p. 206,that the discoverability rule is an interpretive tool for the construing of limitations statutes which ought to be considered each time alimitations provision is in issue: In my opinion, the judge-made discoverability rule is nothing more than a rule of construction. Whenever a statute requires an action tobe commenced within a specified time from the happening of a specific event, the statutory language must be construed.

When time runsfrom “the accrual of the cause of action” or from some other event which can be construed as occurring only when the injured party hasknowledge of the injury sustained, the judge-made discoverability rule applies.

But when time runs from an event which clearly occurswithout regard to the injured party’s knowledge, the judge-made discoverability rule may not extend the period the legislature hasprescribed. [14] In Peixeiro, the limitation period in issue expired two years from the time “when damages were sustained.” The Court heldthat the discoverability principle applied and as the plaintiff’s injury was not reasonably discoverable until 13 months before the actionwas commenced, the claim was not statute-barred.

The discoverability principle applies “... to avoid the injustice precluding an actionbefore the person is able to sue” (at para 44). [15] In J.N. v. G.J.K., at issue was whether the plaintiff’s claims were statute-barred by s. 3(1)(

a) or s. 2(2) of the Act. The plaintiffalleged an historical sexual assault when she was a student. Section 2(2) (a transitional provision) of the Act precluded a claim if theplaintiff knew or ought to have known of a claim before the specified times. At issue was what must be known to “warrant bringing aproceeding” as required by s. 3(1)(a)(iii) and what must be known in respect of s. 2(2).

The Court held that “[i]n interpreting theplaintiff’s knowledge under s. 2(2), it is in our view, also necessary to engage the elements of s. 3(1)(a)” (at para 29). [16] As before the Master, Plaintiff's counsel advised that neither fraudulent concealment nor disability, both of which allowsuspension of the limitation period, were being argued. B. Position of the Crown [17] The Crown submits that the ultimate 10-year limitation period in s. 3(1)(

b) applies and bars the Plaintiff’s claim. It submitsthat when the Legislature adopted a specific event to start the time running (as it did in s. 3(3) of the Act), the discoverability principledoes not apply. [18] Subject to the provisions in the Act which suspend the running of the limitation period (none of which apply here), the 10years begins to run when the conduct, act or omission complained of occurred. [19] The Crown relies on the cases of Bowes v. Edmonton (City) 2007 ABCA 347 and W.P. v. Alberta (No. 1) 2013 ABQB 296. Atissue in Bowes was whether property owners were barred by s. 3(1)(

b) from suing the City of Edmonton in respect of the collapse of thebank on which their homes were built. The issue was whether the claim expired before they knew they had a claim, perhaps even beforethe damage occurred (i.e., before they had an actionable claim.)

[ 20 ] The Alberta Court of Appeal in Bowes considered the 10-year ultimate limitation period in s. 3(1)(

b) of the Act . In discussing the policy dilemma statutes of limitations address, Côté, J.A. stated that the policy behind limitation periods is to eliminate the harm to defendants of very belated litigation. He discussed the legislative reform that led to the current limitations legislation noting (at paras 136-138): Since both plaintiffs and defendants and fairness to both are involved, the sound solution was to enact two different limitation periods. The defendant could succeed if the plaintiff sued after either period had expired. The first time period codified the approach in modern case law.

A plaintiff had a few years to sue after he discovered (or should reasonably have discovered) the elements allowing him to sue (or making a suit reasonable or worthwhile). That limitation period looked at the plaintiff's point of view and encouraged his or her diligence and promptness, but did not penalize any plaintiff who acted reasonably and diligently. … The second time period was a much longer automatic unconditional time period with very few exceptions. It removed any danger that the time to sue might never start to run, or that its starting point or calculation would be uncertain.

That ultimate unconditional period was a compromise. It gave the defendant the protection which the courts had removed by importing discoverability, but chose a limitation period longer than had been common. British Columbia chose 30 years for that time period. [ 21 ] Côté, J.A. then went on to note that the current Act was passed in 1996, and subsequently proclaimed in 1999 after the Alberta government took time to study the Institute of Law Research and Reform and other studies on the topic.

The current Act , he noted, adopts two different limitation periods: two years for discoverability, and a 10-year unconditional ultimate limitation. [ 22 ] The plaintiffs in Bowes argued that the new Act took away vested rights and should be construed strictly and not bar an action without completely clear words. Côté, J.A., noted that barring some suits, before harm or a chance to sue, was deliberate.

He referred (at para 143) to the Institute's report where at paragraph 47, it stated: The ultimate period for a claim based on the breach of a duty may expire before the claim has even accrued, for the damage may not have occurred by that time, and even if it has, the claim may not have accrued under the discovery rule.

This problem of legal principle is inescapable because there is no feasible alternative consistent with limitations policy. [ 23 ] Côté, J.A. went on to refer to s. 3(3) which makes plain that for the purposes of subsection (1)(b): … 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 (S.C.C.) (para. 27 ). [ 24 ] The Court of Appeal acknowledged the plaintiffs' point of view that it was unfair that they could lose their claim before they learned of it. At para 156-158, he stated: I appreciate two of the plaintiffs' arguments. First, that they should not be deemed to have lost their right to sue before they learned of it. And second that even if that were wrong, they should not lose a right to sue before it arose, i.e. if the harm occurred more than 10 years after the wrongful act or omission.

From their point of view alone, that can seem unfair, even capricious.

But this is not constitutional legislation, and no constitutional argument was put to us. The Legislature is sovereign on this topic, and in my view, it has spoken deliberately and clearly in this area. We cannot amend the Act , nor can we ignore its history, or its scheme. … Furthermore, when one considers the policy dilemma set out in

Part I above, the unfairness largely disappears. The dangers of long-hidden losses must land on someone's shoulders. We cannot legislate it away. Obviously, an unconditional 30-year limitation period (like British Columbia's original solution) would benefit more plaintiffs than a 10-year one like the suit. But the Institute and the Legislature opted for a shorter period than that. Ten years is clear, and we cannot amend that. If there is any unnecessary fairness, it would be in 10 years rather than 30. But as noted in

Part I, the choice period is a balancing exercise. After 10 years, witnesses and records often become hard to locate in our fast-moving society. And memories certainly fade very badly. [ 25 ] Finally, Côté, J.A. states that the Act in s. 2(1) makes clear that it is retroactive and retrospective. [ 26 ] Bowes was followed by Associate Chief Justice J.D. Rooke, in WP , supra , a claim which involved alleged physical and sexual abuse.

In WP , the plaintiffs commenced an action in 2008 against the Province of Alberta alleging that students at a school for the deaf had been physically, sexually and emotionally abused by teachers and students between 1955 and 1996. The defendant argued that the claims were barred by the 10-year ultimate limitation period in s. 3(1)(

b) of the Act . [ 27 ] Rooke, ACJ, following Bowes , held that the plaintiffs' claims were barred by s. 3(1)(

b) of the Act unless the plaintiffs could establish that the limitation period was suspended. None of the provisions suspending the limitation period (age, fraudulent concealment or disability) were found to be applicable in that case. C. Analysis and Conclusion [ 28 ] It is clear from the decision of the Alberta Court of Appeal in Bowes , that the 10-year ultimate limitation period in s. 3(1)(

b) starts to run from the time the conduct, act or omission occurs. The Act has retroactive and retrospective effect. The conduct, act and omissions of which she complains occurred between 1956-1958. While the Plaintiff says that she did not make the connection between the alleged abuse and her injuries until 2006, discoverability is not an element of s. 3(1)(b). As noted by Côté, J.A. in Bowes , this is the result of a deliberate decision of the Legislature when it chose to enact two limitation periods: the two year period, which incorporates discoverability, and the 10-year ultimate period, which does not.

In the result, unless s. 13 applies to the Plaintiff's claim, her action against the Crown is statute-barred. V. Does s. 13 of the Act apply? A. Position of the Plaintiff [ 29 ] The Plaintiff argues that, as she is Metis, s. 13 of the Act applies with the result that the prior limitations statute, the Limitation of Actions Act , applies to her claim. [ 30 ]

Section 13 of the Act provides that: An action brought on or after March 1, 1999 by an aboriginal people against the Crown based on a breach of a fiduciary duty alleged to be owed by the Crown to those people is governed by the law on limitation of actions as if the Limitation of Actions Act , RSA 1980 c L 15, had not been repealed and this Act were not in force. [ 31 ] If s. 13 applies, the Plaintiff's claim is governed by the Limitations of Actions Act and not barred by the 10-year ultimate limitation period in the Act .

[ 32 ] The Plaintiff identifies herself as Metis and submits that, as such, she is an aboriginal person. She says that her claim against the Crown includes a claim for breach of fiduciary duty. She relies on the

Interpretation Act RSA 2000 c. I-8, s. 26(3), which provides that in an enactment words in the singular include the plural and words in the plural include the singular. She submits that, applying the

Interpretation Act , the words “an aboriginal people” in s. 13 of the Act include “an aboriginal person.” B. Position of the Crown [ 33 ] The Crown argues that the Plaintiff misconstrues s. 13 as applying to a claim by an aboriginal person. It notes that the

section refers to “an aboriginal people” which is a collective noun; the

article “an” means that the term in s. 13 is being used in the singular. “An aboriginal people” is not the plural of “an aboriginal person”. [ 34 ] The Crown submits that the

section is intended to address collective aboriginal/treaty rights such as land entitlements possessed by aboriginal groups and its members, not private law duties owed to individuals. The Crown submits that s. 13 references claims, for example, of an aboriginal First Nation or Metis community. The Crown argues that inequitable and unintended consequences would result from an

interpretation of s. 13 as urged by the Plaintiff as a non-aboriginal person would be barred from bringing a claim in similar circumstances and this could not have been intended by the Legislature. [ 35 ] In its submissions, the Crown provided the following excerpt from Hansard wherein the member for Calgary-Edgmont who sponsored Bill 205 in 1996, explained the intent of s. 13 (previously s. 12.1): 53. MR. HERARD:... We have added

section 12.1 to exclude aboriginal claims from this Bill. The

section reads: An action brought, after the coming into force of this Act, by an aboriginal people against the Crown based on a breach of a fiduciary duty alleged to be owed by the Crown to those people is governed by the law on limitation of actions as if the Limitation of Actions Act had not been repealed and this Act were not in force. It’s a long way of saying that the old limitations provisions will in fact apply to actions brought by aboriginal people against the Crown. To clarify, aboriginal people have a fiduciary relationship with the Crown.

This fiduciary relationship is a trust like relationship in which one party undertakes to act on behalf of another party. ... THE CHAIRMAN: The hon. Member for Calgary-Buffalo. MR. DICKSON: Thanks, Mr. Chairman... I’m particularly interested in the amendment proposed to

section 12, the addition of 12.1. I’m wondering if the sponsor can give us a fuller explanation. I’d like more information in terms of the background for that. It’s a curious provision, and I can see some concerns with it. But to be fair to the sponsor, the Member for Calgary-Edgmont, I wonder if he’d be prepared, Mr. Chairman, to give me some background on where 12.1 comes from, where the impetus comes from for that particular change, and his explanation in terms of the impact he expects that will have if this amendment were to become law. So I might take my seat and encourage the member to address that.

Thanks. ... MR. HERARD:... I did want to comment on the one thing that the hon. Member for Calgary-Buffalo raised with respect to

section 12.1, I believe. As I recall, that

section deals with the amendments we’re recommending to make sure it’s absolutely clear that any right that our

aboriginal community has today continues, because there have been some concerns expressed by a number of chiefs of aboriginal communities with respect to Bill 205. This is, I think, our duty: to make sure that whatever limitations, rights they had before this Bill, they continue to have. These are very important people, very important issues, and we would not want to limit their rights in any way shape or form when it comes to aboriginal land claims [emphasis added]. 39 39 Alberta Legislative Assembly (Committee of the Whole, March 20, 1996), Hansard, 23 Leg, 4 th Sess at 709. C.

Analysis and Conclusion [ 36 ] I agree with the submission of the Crown that s. 13 does not apply to the Plaintiff’s claim. The Legislature chose to use a collective noun: “an aboriginal people”. In making the specific use of the

article “an”, the Legislature demonstrated its intent to refer to collective rights, not rights of an individual. “An aboriginal people” is not the plural of “an aboriginal person”. Section 26(3) of the

Interpretation Act does not assist the Plaintiff. VI. Order [ 37 ] In the result, the Plaintiff's action against the Crown is barred by s. 3(1)(

b) of the Act . [ 38 ] The Plaintiff's appeal from the decision of the Master, therefore, is dismissed. Heard on the 14 th day of June, 2013. Dated at Calgary, Alberta this 25 th day of July, 2013. K. D. Nixon J.C.Q.B.A. Appearances: John Anderson for the Plaintiff (Applicant) Kate Bridgett Monica Johnson for the Defendants (Respondents)