ABG v MG, 2013 ABQB 461

Court of Queen ’ s Bench of Alberta Citation: ABG v MG, 2013 ABQB 461 Date: 20130812 Docket: 0503 01655 Registry: Edmonton Between: A.B.G. Plaintiff - and - M.G. also known as M.Q. or M.Q. or M.G. Defendant _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice R. Paul Belzil _________________________________________ ______________ The Application [ 1 ] The Defendant applies for

Summary Judgment and seeks an order summarily dismissing the Plaintiff’s claim or in the alternative an order directing a trial of the issue of whether the Plaintiff’s claim is barred by the provisions of the Limitations Act . Facts

[ 2 ] The Plaintiff was born on June 6, 1967. In a Statement of Claim filed on January 26, 2005 he alleges that from 1972 to 1976 he resided in a residence in Barrhead, Alberta with the Defendant, who is his aunt, and who is approximately 12 years older than the Plaintiff. [ 3 ] The Statement of Claim alleges that during the period 1972 to 1976 the Defendant sexually assaulted him. The Plaintiff turned 18 on June 6, 1985. [ 4 ] In 1992, the Plaintiff was involved in an addiction treatment program.

During his addiction treatment program he disclosed the alleged sexual abuse perpetrated by the Defendant and decided to confront her about what she had allegedly done to him. [ 5 ] He obtained her telephone number from family members and arranged to meet with her at a restaurant.

The parties discussed what had allegedly occurred and according to the Plaintiff, the Defendant did not deny it. [ 6 ] In 1994, the Plaintiff discussed the alleged sexual abuse during ADAC sessions he was participating in in the Northwest Territories. [ 7 ] Also in 1994, the Plaintiff consulted a lawyer in British Columbia respecting the possibility of bringing legal action against the Defendant. He received advice from the lawyer that he might have an action against her but the claim would have to be commenced in Alberta.

There is no evidence that the Plaintiff pursued a claim against the Defendant at that time. [ 8 ] In 1995, the Plaintiff was seeing a counsellor as a result of sexual difficulties he was experiencing in his relationship with his then girlfriend. He acknowledged in Questioning that these sexual difficulties were attributable to the alleged sexual abuse perpetrated by the Defendant when he was a child. [ 9 ] On March 18, 1995, the Plaintiff telephoned the Defendant and requested “retribution” from her.

He demanded a payment from her of $20,000 and offered to sign a “waiver” which he explained meant he would not sue her or have her charged. He advised that he had retained a law firm in British Columbia to represent his interests and that she should retain her own counsel. [ 10 ] In 1997, he filed a Statement of Claim arising out of a motor vehicle accident.

In Examinations for Discovery conducted in January 1998, he referred to the sexual abuse he allegedly experienced from his aunt. [ 11 ] The Plaintiff swore an Affidavit on July 29, 2005 outlining difficulties he has experienced in his life which he attributes to the Defendant’s alleged actions and wherein he deposed that he could not have retained a lawyer to bring action against the Defendant earlier than he did. [ 12 ] In addition, the Plaintiff filed an Affidavit sworn November 14, 2012 from Dr. Al Rudiger, a registered psychologist, in which he deposed the following at para. 12: 12.

After reviewing the Affidavits and the transcripts, my expert opinion has not changed and I continue to believe that A.B.G.’s lawsuit, which was filed on January 26, 2005, was filed within 2 years of the time that he knew or ought to have known the nature of his injuries and recognized the effects of his injuries. [ 13 ] In addition the Plaintiff tendered a number of reports from Dr. Rudiger, including a report dated October 27, 2009 wherein he opined that the Plaintiff suffered psychological injuries as a result of the Defendant’s alleged abuse. [ 14 ] The Defendant submitted a report from Dr.

Uwe Neumann, registered forensic psychologist, who opined that the Plaintiff came to an awareness in 1993 that the Defendant had abused him. [ 15 ] Dr. Neumann did not opine as to whether the Plaintiff sustained psychological damages as a result of the Defendant’s alleged actions. The Limitations Act [ 16 ] The relevant portions of the Limitations Act RSA 2000, c. L-12 (as amended) are as follows: 2(1) This Act applies where a claimant seeks a remedial order in a proceeding commenced on or after March 1, 1999, whether the claim arises before, on or after March 1, 1999.

(2) Subject to sections 11 and 13, if, before March 1, 1999, the claimant knew, or in the circumstances ought to have known, of a claim and the claimant has not sought a remedial order before the earlier of (

a) the time provided by the Limitation of Actions Act , RSA 1980 cL-15, that would have been applicable but for this Act, or (

b) two years after the Limitations Act , SA 1996 cL-15.1, came into force, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim. Limitation periods 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 proceedings, 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. Concealment 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. Persons under disability 5(1) The operation of the limitation periods provided by this Act is suspended during any period of time that the claimant is a person under disability.

(2) The claimant has the burden of proving that the operation of the limitation periods provided by this Act was suspended under this section. Minors 5.1(1) In this

section . . .

(2) Except as otherwise provided in this section, the operation of limitation periods provided by this Act is suspended during the period of time that the claimant is a minor.

Definitions (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 incapacity is 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; Position of the Parties [ 17 ] The Defendant concedes that the limitation period for commencing action would not begin to toll until the Plaintiff’s 18 th birthday, June 6, 1985. [ 18 ] The Defendant argues that the Plaintiff’s conduct in demanding compensation from the Defendant in 1995 must mean that the limitation period would begin to toll pursuant to s. 3(1)(

a) on the basis that the claim was discoverable. [ 19 ] In the alternative, the Defendant relies on s. 3(1)(b), which would result in the limitation period expiring 10 years after the Plaintiff turned 18, being June 6, 1995. [ 20 ] The Plaintiff argues that he was a person under disability prior to the filing of the Statement of Claim on January 26, 2005 and thus any limitation period governing the claim was suspended pursuant to s. 5(1). [ 21 ] He also relies on s. 4(1) on the basis that the Defendant fraudulently concealed the fact that the injury had occurred.

Specifically he argues that the Defendant told him not to tell anyone what had occurred. Discussion [ 22 ] The essence of the Defendant’s position is that the Plaintiff must have been aware that he had a claim against her when he

made demands for compensation from her. [23] While not denying that he made these demands, the Plaintiff relies on s. 1(h)(ii) and argues that he, nonetheless, was still aparty under disability, that is, he was an adult who was unable to made reasonable judgment respecting this claim prior to the filing ofthe Statement of Claim on January 26, 2005. [24] The parties are in agreement respecting the law governing applications for

summary judgment, that is, the application cannotsucceed unless it is plain and obvious that there is no genuine issue for trial. Guarantee Co. of North America v. Gordon Capital Corp. (SCC), [1999] 3 S.C.R. 423 at para. 27. [25] In Murphy Oil Co. v. Predator Corp. 2006 ABCA 69 the Alberta Court of Appeal at para. 24 made the following observationabout evidence presented in an application for

Summary Judgment: 24

Summary judgment against a plaintiff, or a plaintiff by counterclaim, will only be granted where there is no genuine issue for trial. Itmust be “plain and obvious” that the action cannot succeed: Boudrealt v. Barrett (1998), 219 A.R. 67, 1998 ABCA 232 at para. 9;Prefontaine v. Veale (2003), 339 A.R. 340, 2003 ABCA 367 at para. 9. Other formulations of the burden to be met by a moving partyinclude the “beyond doubt” standard. When a chambers or case management judge must necessarily assess the quality and weight ofevidence to come to a decision, the failure of the case is not beyond doubt: Lui v.

Tangirala (2004), 131 A.C.W.S. (3d) 627, 2004 ABCA171 at para. 2. [26] As noted, the Plaintiff filed an Affidavit describing difficulties he has experienced in his life which he attributes to the allegedactions of the Defendant. [27] It is noteworthy that in para. 16 of his Affidavit the Plaintiff deposed that “there was no way I could have tried to hire alawyer”. [28] Dr.

Rudiger opined that the Plaintiff sustained psychological damage as a result of the Defendant’s alleged actions. [29] I do not accept that the demands for compensation made by the Plaintiff from the Defendant are necessarily dispositive of theissue of whether the Plaintiff was a party under disability, as that term is defined in s. 1(h)(ii), prior to the filing of the Statement ofClaim on January 26, 2005. [30] In my view, part of what constitutes making reasonable judgments in respect to matters relating to a claim involves the abilityto retain a lawyer to formally advance the claim. [31] On this evidentiary record it is not plain and obvious that the Plaintiff was in a psychological condition to do so prior to thefiling of the Statement of Claim on January 26, 2005. [32] As such, it is not plain and obvious that the Plaintiff was not a party under disability prior to January 26, 2005 and itnecessarily follows that this is a triable issue. [33] In the result, the application for

Summary Judgment must be dismissed. I see no merit in directing the trial of an issue ofwhether the claim is barred by the provisions of the Limitations Act as that issue is inextricably linked to the conflicting evidence whichwill be presented at trial. [34] Costs may be spoken to. Heard on the 31st day of July, 2013. Dated at the City of Edmonton, Alberta this 12th day of August, 2013. R. Paul Belzil J.C.Q.B.A. Appearances: Robert P. Lee Barrister & Solicitor

for the Plaintiff Richard B. Hajduk Aaron K. A. Peterkin Hajduk Gibbs LLP for the Defendant