Blackman v Behiels, 2024 ABKB 003

Court of King’s Bench of Alberta Citation: Blackman v Behiels, 2024 ABKB 003 Date: 20240102 Docket: 2003 14495 Registry: Edmonton Between: Sheila Blackman Plaintiff - and - Daniel Behiels, Chantel Dickner, Rod Knecht, Chief of the Edmonton Police Service, the City of Edmonton and the Government of Alberta Defendants _______________________________________________________ Memorandum of Decision of the Honourable Applications Judge M.R. Park _______________________________________________________ Introduction: [ 1 ] This is an application by the defendants Daniel Behiels, Chantel Dickner and Rod Knecht, Chief of the Edmonton Police Service (collectively the “ EPS Defendants ”) for

summary dismissal pursuant to rule 7.3 of the Alberta Rules of Court and

section 3 of the Limitations Act , R.S.A. 2000, c. L-12 (the “ Act ”). For the reasons that follow,

summary dismissal is granted. The Plaintiff’s claim against the EPS Defendants is dismissed. Background:

[ 2 ] At all material times, the defendants Daniel Behiels and Chantel Dickner (individually “ Behiels ” and “ Dickner ” and collectively the “ Officers ”) were members of the Edmonton Police Service (“ EPS ”). [ 3 ] On September 27, 2017, Behiels and Dickner, who were in uniform and operating a marked police vehicle, observed the Plaintiff committing a jaywalking offence. The Officers approached the Plaintiff and found her to be in a state of distress.

Ultimately, the Officers arrested the Plaintiff (who had an outstanding warrant), applying handcuffs to her and placing her in the back of their police vehicle. [ 4 ] According to the Plaintiff, the Officers applied the handcuffs to her roughly and forcefully, causing her pain and discomfort. Once detained, the Plaintiff informed the Officers that she had been raped. The Plaintiff says that Behiels and Dickner were “ignorant and rude”, expressed no sympathy or empathy and in fact advised her that they did not believe her story.

The Plaintiff says she was interrogated by the Officers about gang affiliation and that Behiels picked at his nails with a knife during this interrogation, which she found to be intimidating. The Plaintiff also says that the Officers did not offer her a ride to the hospital and that she was released without charge after about 2 hours in detention. [ 5 ] Needles to say, Behiels and Dickner tell a different story. They state that the Plaintiff was at all times cooperative, which made it unnecessary to forcefully handcuff her as alleged.

They further state that the Plaintiff advised them that someone had hurt her and that she was on her way to the hospital. The Officers advise that the Plaintiff declined to answer their questions about what had happened to her and refused their offer of a ride to the hospital. Behiels and Dickner further state that they expressed empathy for the Plaintiff and deny attempting to intimidate her in any way.

The Officers agree that they eventually released the Plaintiff without charge, despite the fact that she had an outstanding warrant. [ 6 ] On November 23, 2017, less than 2 months after her arrest, the Plaintiff made a written complaint to the Chief of the EPS concerning the incident described above (the “ Complaint ”), which was prepared by the Plaintiff with the assistance of an advocate and which was ultimately referred to the EPS’ Professional Standards Branch (“ PSB ”) for investigation. [ 7 ] On December 11, 2017, the Plaintiff took

part in a phone interview with Kristina Dehid, who I understand was a PSB investigator. During this interview, the Plaintiff described in detail the incident that she says occurred on September 27, 2017 and the injuries she says she sustained. The Plaintiff informed Ms.

Dehid that the purported incident was more traumatizing than the sexual assault she says occurred earlier that day. [ 8 ] On March 22, 2018, the Plaintiff attended a telephone interview with a Detective Komar, during which she again gave a detailed account of her arrest and the events she says followed that arrest. [ 9 ] The March 22, 2018 telephone interview was followed by an in-person interview which took place on March 28, 2018 and which was again conducted by Detective Komar.

During that interview, the Plaintiff asked Detective Komar if he knew the identities of the officers involved in her arrest, to which the detective responded that he thought he did.

The Plaintiff did not ask Detective Komar to disclose the identities of the arresting officers to her. [ 10 ] By way of letter dated June 12, 2018 (the “ June 12 th Letter ”), which was delivered to the Plaintiff on June 19, 2018, Chief Knecht reported the outcome of the PSB investigation to the Plaintiff. [ 11 ] The June 12 th Letter divided the Complaint into 3 allegations: (1) that the Officers handcuffed the Plaintiff in an unnecessarily rough manner, (2) that the Officers showed a lack of empathy toward the Plaintiff having been sexually assaulted and attempted to intimidate her into providing information concerning unrelated matters and (3) that the Officers failed to execute the Plaintiff’s outstanding arrest warrant and to document her arrest.

Chief Knecht concluded that there was no reasonable prospect of establishing the facts necessary to obtain a conviction at a disciplinary hearing for discreditable conduct in respect of the first two allegations. Those allegations form the substance of the current action. [ 12 ] It appears to be common ground that the Plaintiff first learned the identities of Behiels and Dickner when she received the June 12 th Letter.

It is also common ground that the Plaintiff took no measures to ascertain the identifies of the Officers prior to June 19, 2018. [ 13 ] In or around October, 2017, the Plaintiff retained Vernon Eichorn as her lawyer in an unrelated criminal matter.

[ 14 ] On March 27, 2018, the Plaintiff sent Mr. Eichorn’s office a copy of the Complaint and told him that she had been advised to seek legal advice about how to proceed. [ 15 ] At some point after March 27, 2018, the Plaintiff met with Mr. Eichorn and there was some discussion about the Complaint. Mr. Eichorn advised the Plaintiff that he could not assist her with matters related to the Complaint, as his practice was limited to criminal law. Mr.

Eichorn suggested to the Plaintiff that she contact Tom Engel, a lawyer based in Edmonton whose practice included civil proceedings. [ 16 ] After receiving the June 12 th Letter, the Plaintiff had some communication with Mr. Engel’s office and was advised that they could not assist her with the Complaint or any matters related to the same. [ 17 ] In addition to Mr.

Engel, the Plaintiff attempted to contact one further lawyer with the intention of seeking advice about bringing an action in relation to the events of September 27, 2017. [ 18 ] On June 8, 2020, the Plaintiff retained Erika Norheim to represent her in this matter. [ 19 ] On August 24, 2020, nearly 3 years after the events of September 27, 2017, Ms. Norheim filed the Statement of Claim in this action on the Plaintiff’s behalf. [ 20 ] On September 12, 2022, the Plaintiff swore an affidavit in response to the EPS Defendants’ application for

summary judgment (the “ September Affidavit ”). On October 14, 2022, she was questioned on that affidavit and testified that that she was advancing the following claims:

a) Unlawful arrest and detention;

b) Unlawful frisk search;

c) Assault (related to the placement of handcuffs during her arrest);

d) That the Officers breached duties owed by them to investigate the reported sexual assault and to take the Plaintiff to the hospital; and

e) That the Chief of the Edmonton Police Service was responsible for the Officers’ actions. Issue: [ 21 ] The issue to be decided on this application is whether the Plaintiff’s claim as it pertains to the EPS Defendants is barred, in whole or in part, by the passage of time. If so,

summary dismissal is the appropriate remedy. Analysis:

I.

Summary Judgement: [ 22 ] Rule 7.3 (1) of the Alberta Rules of Court codifies the rules for

summary judgment and provides that a defendant may apply for

summary judgment if there is no merit to the claim against them. [ 23 ]

Summary judgment may be awarded upon the applicant establishing that there is no “genuine issue for trial”. There will be no issue requiring a trial when the judge is able to make the necessary findings of fact on the record before them, apply the law to those facts and be satisfied that the process reflects a proportionate, timely and cost-effective means to achieve a just result: Hyrniak v Mauldin , 2014 SCC 7 . [ 24 ] The analysis to be undertaken by the Court on a

summary judgment was set out by the Alberta Court of Appeal in its decision in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd. , 2019 ABCA 49 (“ Weir-Jones ”). The key considerations to be addressed are as follows:

a) Having regard to the state of the record and the issues, is it possible to fairly resolve the dispute on a

summary basis, or do uncertainties in the facts, the record or the law reveal a genuine issue requiring a trial?

b) Has the moving party met the burden on it to show that there is either "no merit" or "no defence" and that there is no genuine issue requiring a trial? At a threshold level the facts of the case must be proven on a balance of probabilities or the application will fail, but mere establishment of the facts to that standard is not a proxy for

summary adjudication.

c) If the moving party has met its burden, the resisting party must put its best foot forward and demonstrate from the record that there is a genuine issue requiring a trial. This can occur by challenging the moving party's case, by identifying a positive defence, by showing that a fair and just

summary disposition is not realistic, or by otherwise demonstrating that there is a genuine issue requiring a trial. If there is a genuine issue requiring a trial,

summary disposition is not available.

d) In any event, the presiding judge must be left with sufficient confidence in the state of the record such that he or she is prepared to exercise the judicial discretion to summarily resolve the dispute. [ 25 ] In Hannam v Medicine Hat School District No. 76 , 2020 ABCA 343 , our Court of Appeal provided confirmation and clarity on the

summary judgment test set out in Weir-Jones . The Court noted that the Weir-Jones standard sanctions

summary judgment if the presiding judge is left with sufficient confidence in the record such that he or she is prepared to exercise the judicial discretion in to summarily resolve the dispute. More specifically, if the moving party has proved the material facts on the balance of probabilities and advances the law that vindicates their position,

summary judgment is appropriate. The outcome does not have to be obvious.

Summary judgment cannot be granted if the application presents a genuine issue requiring trial. [ 26 ] It should also be noted that parties to a

summary judgment application are expected to “put their best foot forward”, with the result that gaps in the record will not necessarily prevent

summary disposition: Canada (AG) v Lameman , 2008 SCC 14 at para 11 . [ 27 ]

Summary dismissal is an available remedy based on a defence arising under the Act . The same principles apply: the applicant must prove, on the balance of probabilities, the facts necessary to establish the date at which they had knowledge of an injury caused by the defendant and resulting in damage, and that there is no genuine issue requiring trial. Where it is plain and obvious on the record that an action is statute-barred,

summary dismissal should be granted: Bennett v Treit , 2023 ABKB 348 at para 33 . II. The Act : [ 28 ] Under the Act, a defendant is entitled to immunity from liability if a claim is not commenced within the timelines set out in the Act . Section 3 (1) of the Act provides as follows:

Limitation periods 3

(1) Subject to subsections (1.1) and (1.2) and sections 3.1, 3.2 and 11, if a claimant does not seek a remedial order within

a) 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. [ 29 ] The limitation period provided for by section 3 (1) (

b) has no application on the facts here. It is therefore section 3 (1) (

a) that applies. Accordingly, the question in this case is whether the Plaintiff knew or ought to have known more than 2 years prior to the filing of her claim: (1) that she had been injured, (2) who was responsible for her injuries and (3) whether her injuries warranted bringing a proceeding. i. Application of section 3 (1) (

a) a. Awareness of injury: [ 30 ] The Plaintiff plainly knew she had been injured more than 2 years prior to the filing of her claim. [ 31 ] The injuries suffered by the Plaintiff were apparent to her immediately (i.e. as of September 27, 2017) and were described by her in the Complaint, in the telephone interviews that took place on December 11, 2017 and March 22, 2018 and in the in-person interview that occurred on March 28, 2018.

On each occasion, the Plaintiff described the substance of her complaint in detail and noted the pain and psychological trauma she says she suffered as a result of the Officers’ alleged acts and omissions. b. Injury attributable to conduct of defendants: [ 32 ] In addition to her arguments concerning the applicability of sections 5 (1) and 3.1 (c) (iii) of the Act , which are addressed below, this is the crux of the Plaintiff’s opposition to this application. [ 33 ] The Plaintiff claims she did not know the actual identities of the Officers prior to June 19, 2018, when she received the June 12 th Letter.

This is not disputed by the EPS Defendants. The Plaintiff says she did not know her injuries were attributable to the Officers’ conduct until she received the June 12 th Letter. If that argument is accepted, the Plaintiff filed her claim in time, when accounting for the suspension period provided for by Ministerial Order 27/2020.

[ 34 ] I do not accept the Plaintiff’s argument. When the Plaintiff was interviewed by Detective Komar on March 28, 2018, she asked if he knew the identities of the officers who were involved in her arrest, to which the detective replied that he believed he did.

Despite that, at no time between March 28, 2018 and June 19, 2018 did the Plaintiff make any effort whatsoever to ask Detective Komar, or anyone else involved in the PSB investigation, if they would disclose the Officers’ identities to her. [ 35 ] In the case of unidentified defendants, there is an expectation of reasonable diligence by a claimant to inquire into the identity of the potential wrongdoer: McFaul v Ranch-Lewchuck , 2015 ABQB 706 at para 39 . The fact that the Plaintiff was unaware of the Officers’ identities prior to June 19, 2018 is attributable to her total lack of diligence in that regard. c.

Injuries warranted bringing a proceeding: [ 36 ] The test for whether injuries warrant bringing a proceeding is whether a reasonable person in the claimant’s position, acting reasonably in light of their own circumstances and interests could, not necessarily should, bring an action. This approach is neither purely subjective nor is it purely objective. The question becomes: “in light of his or her own circumstances and interests, at what point could the claimant have reasonably brought an action?”.

The reasonable person would only consider that the claimant could not have brought an action at the time the right to do so first arose if the plaintiff’s own interests and circumstances were serious, significant and compelling. [1] [ 37 ] The Plaintiff was subjectively aware of her injuries immediately.

I agree with the EPS Defendants’ position that those injuries were not of the sort that would entail taking a “wait and see” approach, as one often does in the case of personal injury claims. [ 38 ] The Plaintiff’s conduct makes it clear that she knew no later than March 27, 2018 that her injuries warranted bringing a proceeding. The evidence before the court on this application is that the Plaintiff sought to communicate with at least 3 lawyers between March 27, 2018 and late 2018 to obtain legal advice concerning commencing civil proceedings related to the events of September 27, 2017.

I am further of the view that the Plaintiff’s circumstances warranted bringing a claim from an objective point of view. ii. Applicability of sections 5 (1) and 3.1 (c) (iii): [ 39 ] The Plaintiff’s claim against the EPS Defendants appears to be statute-barred. However, the Plaintiff offers up the following arguments in opposition to this application: 1. She was a “person under disability”, with the result that the limitation period was suspended pursuant to section 5 (1) of the Act . 2. She was assaulted by the Officers while in a relationship of dependency to them.

Were I to accept this argument, the result would be that no limitation period applies to the assault/battery aspect of the Plaintiff’s claim. I will consider each of these arguments in turn. a. Was the Plaintiff a “person under disability”? [ 40 ] Under section 5 (1) of the Act , the operation of a limitation period is suspended during the period of time that the claimant was a person under disability. [ 41 ] “Person under disability” is defined at

section 1 (

h) of the Act as:

a) 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

b) an adult who is unable to make reasonable judgments in respect of matters relating to a claim; [ 42 ] The Plaintiff did not argue that she is/was a represented adult or a person in respect of whom a certificate of capacity is/was in effect, so it must be determined if she was at any material time an adult who was unable to make reasonable judgments in respect of matters relating to her claim.

A review of some of the caselaw is instructive. [ 43 ] In Martin v General Teamsters, Local Union No. 362 , 2011 ABQB 412 (“ Martin ”) , the court considered an application made by the Defendant to strike portions of the Statement of Claim and to summarily dismiss the balance. In part, the Defendant argued that some or all of the claim was statute-barred. In reply, the Plaintiff submitted that she was disabled and therefore saved by

section 5 of the Act . [ 44 ] In rejecting the Plaintiff’s argument, Justice Hart held: Disability under that

section means more than injured or unwell…There is no expert medical opinion saying that she was unable or incompetent to make decisions as to commencing litigation in the intervening period between the time of the alleged wrongs and the time the action was commenced. [2] [ 45 ] In WP v Alberta , 2014 ABCA 404 (“ WP ”) , our Court of Appeal considered an appeal of an order granted by a Chambers judge dismissing the Plaintiffs’ actions as having been brought out of time.

The Plaintiffs were each former resident students at Alberta School for the Deaf and each advanced claims for historical sexual, physical and emotional abuse alleged to have occurred during their residency at the school. [ 46 ] The claims made by the Plaintiffs included that they suffered from emotional issues, substance abuse and psychiatric illnesses, including schizophrenia and depression, which required counselling, medication, hospitalization and rehabilitation. The Plaintiffs claimed that these various issues left them disabled in the sense that term is used in

section 5 of the Act . [ 47 ] To a certain extent, the Plaintiffs’ claims were supported by the evidence of a psychologist, who testified that, in general, deaf persons suffer from higher rates of mental health problems (including depression and post-traumatic stress disorder) than the general population, are at a higher risk than non-hearing impaired children of developing mental health problems following trauma such as sexual abuse, and that a child’s deafness impairs their ability to deal with abuse, seek help and function.

This evidence did not speak to the specific difficulties experienced by the Plaintiffs or inability on their part to form reasonable judgments respecting their claims. [ 48 ] In dismissing the appeal, the court noted that: …while each of them has encountered difficulties in life, they do not show how such difficulties rendered them unable to make reasonable judgments in respect of their claims.

Even if the facts alleged by EP with respect to her time spent in psychiatric hospital care, which might form part of an account of disability which suspends the operation of the …limitation period, is on its own insufficient to show that the issue has merit. We are not told, for example, what care entailed, when she was in care and for how long [3] . [ 49 ] In 42662871 Alberta Ltd. v Jomha , 2016 ABCA 120 (“ Johma ”) , the plaintiff numbered company and its principal, Ashwani Khanna, sued Mr. Jomha, their former legal counsel, for negligence.

A trial of an issue was held, pursuant to which the court was asked to determine if the Act provided a complete or partial defence to the claims made against Mr. Jomha. That issue was decided in favor of Mr. Jomha and the claim against him was dismissed. The Plaintiffs appealed. [ 50 ] Before the Chambers judge, and on appeal, Mr. Khanna argued that he was a person under disability and that his claim was saved by section 5 (1) of the Act . With respect to his purported disability, Mr. Khanna produced a doctor’s note, which spoke to major depression suffered by Mr. Khanna, for which he was undergoing treatment.

The note recommended that Mr. Khanna avoid any court proceedings for a specified period of time. The note was supported by an affidavit sworn by a physician some 9 years after it was written confirming the advice set out in the note.

[ 51 ] The physician affiant was questioned. His evidence revealed that there were no follow-up visits by Mr. Khanna, nor any confirming evidence of the extent or anticipated duration of his illness. The physician did not recommend counselling for Mr. Khanna, nor was he prescribed any medication. [ 52 ] In the result, the Chambers judge found Mr.

Khanna’s evidence concerning his alleged disability to be “scant” and “self- serving” and as falling short of the standard of proof required to establish that he was a “person under disability”. [ 53 ] In dismissing the appeal, the Court of Appeal noted that the question to be decided on the appeal was whether the Chambers judge’s characterization of the evidence as falling short of the requisite burden on Mr. Khanna was within the range of a reasonable conclusion.

The court concluded that the Chambers judge’s assessment did not warrant appellate intervention. [4] [ 54 ] In Champagne v Sidorsky , 2017 ABQB 557 , the court considered the Defendant’s application for

summary judgment, which was resisted by the Plaintiff, in part, on the basis that he was under disability. [ 55 ] Medical reports formed part of the record before the court on the application. One report, from a psychiatrist, indicated that the Plaintiff suffered from social anxiety disorder with an underlying Asperger’s disorder. The report was dated November 28, 2012 and indicated that the Plaintiff was then unable to attend court hearings. The report further stated that the Plaintiff was not cognitively impaired. The second medical report was also provided by a physician.

It was dated December 5,2012 and confirmed that the Plaintiff suffered from social anxiety and was unable to attend court proceedings as of the date of the report. [ 56 ] Justice Jones concluded that the Plaintiff’s social anxiety and psychological challenges did not rise to the level contemplated by

section 5 of the Act . In doing so, he noted that the Act requires a claimant to appreciate the nature of the wrong done to him and requires an understanding of who bore responsibility.

Justice Jones held that there was no dispute that at the relevant time, the Plaintiff understood the nature of the wrongs he alleges were committed and the identity of who had committed them. [ 57 ] The Plaintiff’s evidence concerning her alleged disability can be found at paragraphs 8, 14 and 15 of the September Affidavit. [ 58 ] At paragraph 8 of the September Affidavit, the Plaintiff alleges that her receipt of the June 12 th letter triggered a “blackout time”, during which she drank excessively and used drugs to numb her pain.

The Plaintiff claims that this blackout period lasted for about 7 months and that she was unable to make reasonable decisions about bringing an action during this time. [ 59 ] At paragraph 14 of the September Affidavit, the Plaintiff speaks to various pre-existing conditions, which she claims made it difficult for her to manage the trauma associated with the event in question and to make reasonable decisions regarding the matter. [ 60 ] At paragraph 15 of the September Affidavit, the Plaintiff deposes that the trauma and depression from which she was suffering prior to the events of September 17, 2017 worsened significantly thereafter.

The Plaintiff testifies to chronic pain, headaches, low energy, general distress and concludes that she was suffering from post-traumatic stress disorder. It is unclear how the Plaintiff arrived at that conclusion. It is not supported by any corroborating external evidence. [ 61 ] The Plaintiff’s evidence suffers from many of the same shortcomings as the evidence described in the decisions referenced above.

It is in fact considerably less compelling than the evidence in many of those decisions, given the absence of corroborating medical records and/or expert medical opinion. [ 62 ] While the Plaintiff’s evidence establishes that she has suffered significant difficulties in her life, there is no compelling evidence and, in particular, no expert medical opinion, establishing that she was unable or incompetent to make decisions as to commencing litigation between September 27, 2017 and the time this action was commenced. [ 63 ] I would also note that to a certain extent, the Plaintiff’s evidence concerning her disability conflicts with her other evidence before the court on this application.

On the one hand, the Plaintiff claims that the trauma of her arrest and the trauma of receiving the outcome of the PSB investigation, coupled with her pre-existing trauma and conditions, rendered her unable to make reasonable judgments in respect of matters relating to her claim. On the other hand, the Plaintiff’s evidence is that on several occasions following

her arrest and her receipt of the June 12 th Letter, she attempted to seek legal advice concerning the initiation of possible civil proceedings. [ 64 ] Further, in the Complaint, in the telephone interviews that took place on December 11, 2017 and March 22, 2018 and in the in-person interview that occurred on March 28, 2018, the Plaintiff described the substance of her complaint in detail and noted the pain and psychological trauma she says she suffered as a result of the Officers’ alleged acts and omissions To my mind, this demonstrates awareness by the Plaintiff of the wrong done to her and understanding of who generally bore responsibility. [ 65 ] I conclude that the Plaintiff was not a “person under disability” at any time material to this action. b.

Does

section 3.1 (1) (c) (iii) apply? [ 66 ]

Section 3.1 (1) (c) (iii) provides that there is no limitation period in respect of a claim that relates to an assault or battery, other than a sexual assault or battery, if, at the time of the assault or battery, the person with the claim was dependent, whether financially, emotionally, physically or otherwise, on the person who committed the assault or battery. [ 67 ]

Section 3.1 (2) provides that subsection (1) applies in respect of

an act that occurred before or after the coming into force of

section 3.1, regardless of the expiry of the previously applicable limitation period set out in

section 3 or a predecessor of the Act . [ 68 ] The Plaintiff argues that she was dependent on the Officers during the brief period in which she was detained and arrested. She says that she was assaulted and/or battered during that detention, with the result that there is no limitation period that applies to her claim as it pertains to the assault/battery. [ 69 ] There does not appear to be any reported caselaw considering the application of

section 3.1 (1) (c) (iii). [ 70 ] To accept the Plaintiff’s argument would be to accept that the legislature intended that no limitation period was to apply to all assault/battery claims advanced against the police no matter the length of detention and essentially irrespective of when those claims arose. Given the possible ramifications, I cannot imagine that the legislature desired that outcome. [ 71 ] A review of the legislative history that gave rise to the inclusion of

section 3.1 in the Act is instructive as to the legislature’s intention in enacting that provision. [ 72 ] In March, 2017, then Justice Minister Kathleen Ganley introduced Bill 2, entitled “An Act to Remove Barriers for Survivors of Sexual and Domestic Violence”. Bill 2 received royal assent in May, 2017 and the Act was amended shortly thereafter to include what is now

section 3.1. [ 73 ] A speech delivered in the legislature by the minister responsible for a statute may be considered in interpreting the intention of the legislature in enacting the statute, as the statement given by the minister is a statement of government policy: Neil v Alberta (Director, Calgary Remand Centre) , 1990 ABCA 257 at para 11 . [ 74 ] Bill 2 was given first reading on March 7, 2017. In introducing the bill, the minister had this to say: Bill 2 proposes amendments to the Limitations Act that would eliminate legal deadlines for commencing civil claims related to sexual and domestic violence .

These changes include the following types of claims: sexual assault and sexual misconduct or nonsexual assault involving a minor, an intimate relationship, or a dependent...the decision to come forward is extremely personal and can be very difficult. Survivors of sexual and domestic violence should be empowered to do so on their own terms...this change would also make Alberta a leader in across the country in addressing sexual misconduct in intimate relationships . [5] ..[emphasis added].

[ 75 ] It is open to a court to consider legislative debates to assist in discerning legislative intent, or at least to discover the mischief the legislator was attempting to remedy with the legislation: R. v Gisby , 2000 ABCA 261 at para 30 . [ 76 ] Hansard transcripts/minutes do not form part of the evidentiary record on this application.

However, I am entitled to take judicial notice of parliamentary proceedings reported in Hansard: Gauvreau v Lebouthillier , 2021 ABQB 172 at para 16 . [ 77 ] Bill 2 was debated by the legislature on March 7, 2017, March 8, 2017, March 15, 2017, March 16, 2017, March 22, 2017 and April 19, 2017. I have reviewed the Hansard records for each of those dates. There was no debate whatsoever concerning the applicability of the proposed legislative amendments to persons in the custody of a police agency.

It is very clear that the primary “mischief” the government hoped to remedy was the applicability of the “standard” limitation period to survivors of sexual and domestic violence. Given the unique and difficult circumstances of these claimants, it was thought to be unjust to hold them to the standard expected of other litigants. Had it been the government’s intention, or the intention of any member of the assembly, to bring within the scope of

section 3.1 claims of the nature advanced by the Plaintiff here, I would have expected to see very robust debate on that point. Again, there was none. [ 78 ] It is certainly true that in certain circumstances, a person who is in police custody could be viewed as being in a relationship of dependence vis-à-vis the police: Roy v Canada (Attorney General), 2005 BCCA 88 at para 33 ; R. v Anikhovskiy , 2014 ONCJ 664 at para 15 . However, it seems to me very clear from the wording of

section 3.1, the legislative debate around Bill 2 and the title of the bill itself that the relevant amendments to the Act were meant to address a particular type of claim, namely sexual assault, sexual misconduct of a non-physical nature and domestic violence, and were not meant to encompass the sort of dependency claimed by the Plaintiff here.

Section 3.1 (1) (c) (iii) cannot save the Plaintiff’s claim. Conclusion: [ 79 ] Having reviewed the record before the court, I am satisfied that I can fairly resolve this matter on a

summary basis. For the reasons stated above, there is no genuine issue requiring trial. The action as it pertains to the EPS Defendants is dismissed. [ 80 ] I would be remiss if I failed to note that the Plaintiff swore a further affidavit in this action on August 17, 2023, which was filed on August 25, 2023 and which was served on counsel to the EPS Defendants shortly before this application was heard (the “ August Affidavit ”). [ 81 ] The evidentiary record for Special Chambers applications is to be set prior to the scheduling of the application.

Given the Plaintiff’s lack of compliance with that requirement, I declined to admit the August Affidavit into evidence and did not consider it in arriving at my decision. Even had I considered the evidence contained in the August Affidavit, which is largely duplicative of the Plaintiff’s other affidavit evidence, the outcome would have been the same. [ 82 ] Should the EPS Defendants seek costs of this action, that matter can be brought forward before me in morning Chambers. Heard on the 8 th day of September, 2023. Dated at the City of Edmonton, Alberta this 2 nd day of January, 2024. M.R. Park A.J.C.K.B.A.

Appearances:

Sheila Blackman Plaintiff - Self-Represented Litigant Michelle A. Wolowidnyk Weir Bowen LLP for the Defendants Daniel Behiels, Chantel Dickner and Rob Knecht, Chief of the Edmonton Police Service