E. (D.A.) Plaintiff And: E. (L.H.) Defendant All personal data identifiers have been removed from this judgment., 2018 NLSC 174

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : E. (D.A.) v. E. (L.H.) , 2018 NLSC 174 Date : August 22, 2018 Docket : 200901T1873 Between: E. (D.A.) Plaintiff And: E. (L.H.) Defendant All personal data identifiers have been removed from this judgment. Before: Justice Vikas Khaladkar Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: August 13, 2018

Summary: The Plaintiff seeks an Order under Rule 17A of the Rules of the Supreme Court, 1986 for a

summary judgment on the issue of liability for sexual assault and battery by the Defendant, with damages to be assessed at trial.

Summary judgment was granted on the issue of liability with leave to the Respondent, at trial, to advance any defence he may have with respect to the applicability of

section 5 and inapplicability of section 8(2) of the Limitations Act, S.N.L. 1995, c. L-16.1. Appearances: Harry G. Mugford Appearing on behalf of the Plaintiff

Robert W. Buckingham Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: G.V. v. T.D.V., 2018 MBQB 42; W.E. v. F.E., 2008 YKSC 40; Marco Ltd. v. Newfoundland Processing Ltd. etal, (NL SC), [1995] 130 Nfld. & P.E.I.R. 317, 43 C.P.C. (3d) 21 (Nfld. S.C. (T.D.)); K.K. v. K.W.G., 2008 ONCA489; K.M. v. H.M., (SCC), [1992] 3 S.C.R. 6. STATUTES CONSIDERED: Limitations Act, S.N.L. 1995, c. L-16.1. RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. REASONS FOR JUDGMENT Khaladkar, J.: INTRODUCTION [1] The Applicant is the Respondent’s sister. She is 7 years his junior.

She has alleged that when she was 7 years of age theRespondent sexually assaulted her on two occasions by performing oral sex upon her. In addition, she has alleged that the Respondentcontinued to sexually assault her until she was 16 years of age. These additional assaults entailed tickling, groping, simulated sexualintercourse, attempting to remove the Applicant’s clothing and fondling of the Applicant’s pubic area from outside of her clothing. [2] The Respondent has admitted to the two allegations of oral sex in his examination for discovery.

There is a dispute regardingadditional instances of sexual assault alleged by the Applicant. [3] The Applicant seeks

summary judgment on the issue of liability, with a trial to follow on the issue of quantum of damages.The Applicant says that the two admitted instances of sexual assault are sufficient to determine the issue of liability for assault andbattery, and that the additional allegations of sexual assault, if proven, will form an additional basis for determining the quantum. [4] The Respondent argues that there are issues pertaining to the Respondent’s ability to understand the nature and consequencesof his actions – since he was 14 years of age at the time that the incidents occurred.

The Respondent further argues that he did notoccupy a position of trust and, as such, that the action should be statute barred pursuant to

section 5(

a) of the Limitations Act, S.N.L.1995, c. L-16.1. In addition, the Respondent pleads that the doctrine of laches applies insofar as he says that there have been inordinatedelays in getting this matter to trial. [5] For the reasons that follow, I find that a

summary judgment order is appropriate on the issue of liability. There are, however,other issues that may impact upon the Respondent’s liability and I find that those issues are best resolved by the leading of viva voceevidence in a trial. ANALYSIS [6] I have determined that the following issues exist in this matter. (

a) Liability on the question of whether or not sexual assaults, amounting to assault and battery, occurred; (

b) Whether or not the limitation of actions contained in

section 5(

a) of the Limitations Act applies or whether the saving provision insection 8(2) is applicable. (

c) The quantum of damages. (

d) The Respondent argues that the equitable principle of laches should apply on account of the delays encountered in bringing thismatter to trial. [7] The Applicant must satisfy the threshold test for the application of Rule 17A by putting forward an evidentiary basis for herposition. The Respondent then has an evidentiary burden to demonstrate that there is a genuine issue for trial. The parties must do so foreach of the issues in respect of which

summary judgment is sought.

LIABILITY [8] There is no question that the Respondent sexually assaulted the Applicant when she was 7 years of age since he has admittedhaving performed oral sex on the Applicant on two occasions. The Applicant has met the burden of showing that, on a prima facie basis,the action will succeed. The Respondent has the burden to establish that there is a genuine issue for determination. Since the assault andbattery have been admitted, the Respondent is obligated to advance a reason why the Applicant should not have a

summary judgment onthat issue since the Respondent’s admission is, prima facie, determinative of that issue. [9] Whether or not the Respondent also assaulted the Applicant until she was 16 years of age in the manner earlier described isnot an issue that goes to liability – it is an issue that goes to quantum of damages. It is impossible to decide, from opposing affidavits,whether, and to what extent, these second series of assaults occurred. It will be necessary to hear from the parties, and others, to decidewhether the Applicant is able to prove that portion of her claim.

However, that inquiry is made solely for the purpose of deciding whatought to be the quantum of damages to which the Applicant is entitled, and not to decide whether or not liability exists. LIMITATIONS ACT [10] The Applicant asserts that the provisions of sections 8(2)(a), (

b) and (

c) of the Limitations Act apply to her situation and that,therefore, she is saved from the two-year limitation contained in

section 5. The Respondent disputes this and says that the Applicant wasnot, in any way, under his care or authority; that the Applicant was neither financially, emotionally, physically or other​wise dependantupon him; nor was she a beneficiary of a fiduciary relationship with the Respondent. [11] There is some conflicting testimony on this issue from the parties. It is best resolved at trial. If the Applicant, at trial, is unableto convince the trial judge that she fits within one of the three subsections of

section 8 of the Act noted above, then the result will be thatwhile there may have been a finding of this Court on the issue of liability, her ability to recover any monetary compensation in respect ofsame will have been lost. That will effectively put an end to the litigation since the action will be found to have been statute barred. [12] If, however, it is found that the Applicant is entitled to assert that one or more of the subsections of

section 8 of the Act apply toher, then the Court will have to proceed with the next level of inquiry dealing with quantum of damages. This will require evidence to beled concerning any ongoing sexual assaults and the Court will have to determine whether, in the balance, the Applicant has proven thatportion of her claim on a balance of probabilities. ANCILLARY FINDINGS [13] In the case of G.V. v. T.D.V., 2018 MBQB 42, Grammond, J. had occasion to rule upon a similar application in a case involvingthe sexual assault of an 8 year old boy by his 14 year old brother.

The defendant, in that case, admitted to one instance of sexual assault.Consent of the complainant in that case, as in the case before me, was not an issue. [14] As noted by Grammond, J. at paragraph 15 of his decision, assault and battery are actionable without proof of damage. [15] Grammond, J. cited W.E. v. F.E., 2008 YKSC 40, where it was held that: “… a 13 year old child can commit an intentional tort.

It is not the age of the child that matters, but rather the capacity of the child tounderstand and appreciate, and whether the child acted intentionally”. [16] While the dicta in this case is not binding upon me, I find that it is persuasive, and I adopt it as an accurate statement of the law. [17] Counsel for the Respondent argued that the admitted acts were committed by a 14 year old child who may have lacked theability to appreciate the nature and consequences of his actions.

Principle 13 enunciated by Green, J. (as he then was) in Marco Ltd. v.Newfoundland Processing Ltd. et al, (NL SC), [1995] 130 Nfld. & P.E.I.R. 317, 43 C.P.C. (3d) 21 (Nfld. S.C.(T.D.)) applies. The Respondent has an obligation to “put his best foot forward to demonstrate that there was a genuine issue for trial”. [18] There is no affidavit evidence before me that would substantiate the position advanced by Respondent’s counsel on the issue ofthe Respondent’s capacity.

It is incumbent upon the parties to bring to the attention of the trial judge all facts that may bear on theeventual decision to grant, or not grant, a

summary judgment. If the Respondent seriously contends that he did not appreciate the natureand consequences of his actions due to his age, lack of understanding, or some other infirmity, it is his duty to bring forward theevidence that he relies upon in support of that position.

Conjecture of counsel with respect to the Respondent’s capacity, or lack thereof,is insufficient. [19] The fact that the Respondent admitted to two separate instances of sexual assault in two different locations of the house, at twodifferent times, satisfies me that he did, indeed, appreciate the nature and consequences of his actions and that this was no one-timerandom misadventure. The second instance, at least, would have had to have been planned, deliberate and intentional. It must beremembered that the acts were committed by a 14 year old on a 7 year old victim.

I do not agree that the Respondent’s intellectualcapacity is an issue which must be resolved by virtue of a full-blown trial. LACHES [20] Courts have deliberately excused long delays in getting matters involving sexual assaults to trial. The nature of the assaultsmakes it difficult for victims to come forward at the earliest possible moment, or to prosecute their claims as diligently as one mightexpect in a matter that is not so emotionally charged. [21] In K.K. v.

K.W.G., 2008 ONCA 489, a case of the Ontario Court of Appeal dealing with a claim of incest, the Court held: …that the doctrine of laches did not bar the action, finding that acquiescence by the plaintiff had not been established and that, as amatter of justice between the parties, the equitable relief claimed by the plaintiff should not be denied.

[22] In K.M. v. H.M., (SCC), [1992] 3 S.C.R. 6, the Supreme Court of Canada formulated the following test fordetermining whether laches ought to be applied: …in light of the plaintiff's knowledge, can it reasonably be inferred that the plaintiff has acquiesced to the defendant's conduct?

Theanswer to that question depends on the circumstances of each case, but it would require particularly compelling evidence to demonstratethat an incest victim had "acquiesced" to the sexual assaults made against her. [23] There was no evidence led that the Applicant in this case had acquiesced to the sexual assaults made against her. The evidenceprovided by the Applicant shows, to the contrary, that she has struggled with the effects of those sexual assaults for a very long period oftime and that she continues to do so.

Incidentally, I have viewed the medical and other reports provided by the Applicant solely for thepurpose of determining her condition and state of mind – not for the purpose of determining the truth of the sexual assault allegationsmade against the Respondent. Out of Court statements made by the Applicant should not be used to bolster the Applicant’s caseconcerning whether or not sexual assaults in fact took place. [24] The delays in bringing this matter to trial are not so inordinate that the equitable principle of laches should apply. CONCLUSION [25] The Application for

summary judgment on the issue of liability is granted subject to the caveat that unless the Applicant canbring herself within one of the exceptions set out in

section 82(a)-(

c) of the Limitations Act, her action will be deemed statute barred andshe will be unable to proceed further with her action. [26] I order that a trial proceed with respect to the issues of the applicability of sections 5 and 8 of the Limitations Act. [27] I order that a trial proceed with respect to the quantum of damages, but only if the Applicant falls within the exceptions notedin section 8(2)(a)-(

c) of the Limitations Act. [28] The Applicant shall have her costs, calculated under Column III, in any event of the cause. _____________________________ Vikas Khaladkar Justice