H.C. v. Nova Scotia (Attorney General), 2011 NSSC 494

SUPREME COURT OF NOVA SCOTIA Citation: H.C. v. Nova Scotia (Attorney General), 2011 NSSC 494 Date: 20111213 Docket: TRU285348 Registry: Truro Between: H.C. Plaintiff v.

The Attorney General of Nova Scotia Representing Her Majesty the Queen in Right of the Province of Nova Scotia and Cesar Lalo Defendants Restriction on publication: PUBLISHERS OF THIS CASE PLEASE NOTE THAT THERE IS A PUBLICATION BAN DIRECTING THE IDENTITY OF THE PLAINTIFF AND ANY INFORMATION THAT WOULD DISCLOSE HIS/HER IDENTITY SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY. __________________________________________________________________ DECISION _______________________________________________________________ Judge: The Honourable Justice J. E.

Scanlan Heard: December 12, 2011 Written Decision: January 17, 2012 Counsel: Mr. John Rafferty, Q.C., Solicitor for the Plaintiff Mr. Glen Anderson, Q.C./Mr. Terry Potter, Solicitors for the Defendants By the Court :

By the Court : [ 1 ] Below are the expanded reasons for an oral decision I rendered in this matter on December 12, 2011. [ 2 ] We are dealing with a defense under the Limitation of Actions Act in relation to a claim made by H.C. as against the Attorney General of Nova Scotia. This is a claim related to alleged sexual assaults as perpetrated by Cesar Lalo as against the Plaintiff. There were two incidents alleged to have occurred while the Plaintiff, as a 14 year old boy, was under the influence and control of Mr. Lalo acting as a probation officer assigned to the Plaintiff ’ s file. The Plaintiff asserts that Mr.

Lalo threatened to send him back to Shelburne if he did not do as Mr. Lalo demanded. He alleges he blocked out the memories of abuse. He lived on streets and in homeless shelters, while committing crimes to support addictions he attributed to the Lalo abuse. [ 3 ] Counsel have been very diligent in advancing the limitations defense and in having this matter dealt with so they may proceed with, or abandon, an intended settlement conference set for one week after the decision.

To that end, I had agreed to render an abbreviated decision so the parties would know where they stood before the settlement conference dates. Counsel agreed that if a written decision was at any time required I would supplement my reasons although I would not vary the outcome of my decision. [ 4 ] I am satisfied the Defense under the Limitations Act should succeed in relation to one aspect of the claim but it should not be used to bar what is perhaps the most serious aspect of the claim. I explain below: [ 5 ] The Plaintiff was brought up in very difficult circumstances.

To say the home as provided by his mother was lacking is indeed an understatement. The Plaintiff ’ s mother was a drug dealer, often moving from one relationship to another. She often placed those relationships ahead of the Plaintiff. It serves no purpose today in going any further in detailing the shortcoming of the home in which the Plaintiff was raised. [ 6 ] Predictably as a youth the Plaintiff had difficulties with the law and found himself in the Shelburne Youth Detention Centre for five months when he was approximately 14.

The Plaintiff was placed on probation and the person assigned to his file was the now notorious Cesar Lalo. Mr. Lalo is a party to this action and default judgment has been granted against him. [ 7 ] While the Plaintiff was on probation Mr. Lalo is alleged to have sexually assaulted the Plaintiff twice. The first incident is said to have occurred in Mr. Lalo ’ s office in Halifax. This occurred during one of the attendances as required by the probation order. On that occasion the Plaintiff says he was fondled by Mr. Lalo. The second incident is alleged to have occurred when Mr.

Lalo went to the Plaintiff ’ s home after the Plaintiff did not attend for a probation meeting at Mr. Lalo ’ s office. This would not be an unexpected reaction by the Plaintiff to the earlier assault by Mr. Lalo. The allegation is that Mr. Lalo was permitted by the Plaintiff ’ s mother to meet with the Plaintiff in private in the Plaintiff ’ s bedroom. Mr. Lalo is alleged to have used that opportunity to again sexually assault the Plaintiff. That incident included digital anal penetration of the Plaintiff by Mr. Lalo. The Plaintiff also says he was forced to perform oral sex on Mr.

Lalo under threat of being forced back to the correction institution. [ 8 ] The normal limitation periods for the Plaintiff to commence an action in this case would have expired one year after the Plaintiff turned nineteen. The action was not in fact commenced until 2007 when the Plaintiff was approximately 33 years old. The issue before the court is whether the Plaintiff ’ s right of action is preserved by the operation of

Section 2 of the Limitation of Actions Act : [ 9 ] The relevant provisions are sections 2(1) (

a) which sets the one year limit. The Courts have recognized the limit does not start to run until a person attains the age of majority. Section 2(5) subsections (

a) and (

b) provide as follows: 2(5) In any action for assault, menace, battery or wounding based on sexual abuse of a person, (

a) for the purpose of subsection (1), the cause of action does not arise until the person becomes aware of the injury or harm resulting from the sexual abuse and discovers the casual relationship between the injury or harm and the sexual abuse; and

(

b) notwithstanding subsection (1), the limitation period referred to in clause (

a) of subsection (1) does not begin to run while that person is not reasonably capable of commencing a proceeding because of that person’s physical, mental or psychological condition resulting from the sexual abuse. [ 10 ] I read the word “ and ” in that

section conjunctively. That is, the cause of action does not arise until the victim is both aware of the injury, or harm, and also discovers the causal relation of that harm to the sexual abuse. I also read the word “ and ” at the end of that section 2 (5) (

a) conjunctively so that in addition to becoming aware of the harm and the link to sexual abuse the limitation does not start to run until the person also is reasonably capable of commencing a proceeding . The lack of capability must be the result of the sexual abuse if a victim is to gain the benefit of the exception. That is as provided in subsection 2 (5) (

b) set out above. [ 11 ] The Plaintiff says he reported the incident in his house to his mother who simply dismissed the allegations. The allegation by the Plaintiff is that there is a clear link as between the Plaintiff ’ s life from that point on, and the sexual abuse. Understand this all occurred in the context of a person in authority using that position of power and authority as a means to abuse a youth. Immediately thereafter the one person who a young person would expect to be in his corner (his mother) dismisses a report of the incident.

It is easy to then make a connection between a loss or lack of respect for those in authority and the actions of a youth, who then rebelled against those in authority. [ 12 ] After his release from Shelburne the Plaintiff says he blocked out the abuse by Lalo with the use of drugs and alcohol. In 1996 the Plaintiff was one of many individuals who made claims related to treatment in the Shelburne facility. When the Plaintiff ’ s solicitor filed his notice of intended action in 1996 it included a reference to Cesar Lalo having sexually assaulted the Plaintiff.

The Plaintiff says he was not aware of that claim having been made. I am not satisfied that it makes a difference in the outcome of this application in terms of whether the Plaintiff ’ s claim was made in relation to sexual assault at that time or not. I accept the Plaintiff may have mustered enough courage to disclose the fact Mr. Lalo groped him in the Halifax office. This I understand was vaguely disclosed to both his lawyer and the RCMP in the context of Shelburne abuse claims.

The RCMP response was, as I understand it, that they were only investigating incidents that occurred in the Shelburne facility. [ 13 ] As for the Plaintiff ’ s counsel at the time (1996) it would appear the reference to sexual abuse in the claim form appears to have been nothing more than a side reference included in an attempt to bolster that claim. The fact that it was later dropped would do nothing to bolster the Plaintiff ’ s trust in the system even if he were aware of it. In addition, the

summary dismissal of that complaint by the RCMP would have done nothing but leave the Plaintiff with an understanding again that any complaint as to Lalo ’ s actions would be summarily dismissed. In saying that, I am not being critical of the RCMP at that juncture.

As I understand that it was not an apparent attempt by the RCMP to dismiss the complaint but instead to focus on the task they were involved with. [ 14 ] I am satisfied however that the Plaintiff by that time had come to the stage where he could discuss the assault only in a vague way and was no longer rendered completely incapable as a result of what had occurred to him. I am convinced that at that time the Plaintiff still did not recognize the link as between the harm done to him and the sexual assaults.

Perhaps it is of even greater importance in terms of the issues now before me, that the Plaintiff could not bring himself to disclose the intrusive nature of the second incident. He was debilitated as a result of his feelings of shame, embarrassment, his new family relationship, self blame and blaming others, including his mother. All things that were predictable and related to the sexual abuse itself.

When the Plaintiff met with his lawyer in 1996 to discuss the Shelburne incidents he says he still found it unbearable to speak about or deal with the sexual abuse incidents. [ 15 ] The Plaintiff says he did not instruct his counsel to include any claim for sexual abuse in the Shelburne compensation process. He did however discuss the incident in Mr. Lalo ’ s office with his then lawyer. This is confirmed by counsel on that claim. What did stick out in that lawyer ’ s mind is the Plaintiff became very upset when discussing his treatment at the hands of Mr. Lalo.

The lawyer found the Plaintiff ’ s upset extreme given the minor abuse the Plaintiff then described. The extent of the emotional reaction did not match the gravity of the sexual assault as described. There is no evidence to suggest the Plaintiff described to that lawyer anything other than the incident in Mr. Lalo ’ s office. I again refer to the Plaintiff ’ s assertion that in 1996 he found it unbearable to speak about or deal with the sexual abuse.

In addition he says he did not appreciate the causal connection between the Lalo abuse and the harm it caused him up to 1996. [ 16 ] I am satisfied that making a link between the incidents as alleged and the harm it causes is a life long journey that can only be

measured looking back. I am satisfied, based on the materials before me, the Plaintiff made no link between the sexual assaults and how he viewed and rebelled against authority figures at the time. It took many years for that realization process to begin. It only reached a meaningful stage in 2006 when the Plaintiff got counseling. [ 17 ] I am satisfied the Plaintiff was able to discuss the first incident with his lawyer in 1996. This disclosure was sufficient to allow the lawyer at that time to make reference to sexual abuse at the hands of Mr. Lalo.

I accept that due to his mental or psychological condition resulting from the sexual abuse, the Plaintiff was not able to bring himself to disclose the second, more invasive, assault with his counsel. What is important is that by the time the Shelburne process was under way, the fact the plaintiff was able to disclose that first incident to his counsel suggests he was capable of commencing a proceeding in relation to that first incident and was not prevented from being able to discuss that incident by reason of his condition resulting from the sexual abuse.

For that reason, I am satisfied the limitation defense in relation to the first incident in Mr. Lalo ’ s office should succeed. [ 18 ] The dynamics of the second incident are much different. The invasive nature of the incident, the digital penetration and forced oral sex could properly be described as being much more invasive than the original incident of fondling. This is in no way intended to minimize the seriousness of the fondling incident. The Plaintiff was forced to return to the same system that put him in harms way in the first place.

Counsel have referred to any number of cases that speak about victims who are afraid of not being believed when they complain of such abuse. The Plaintiff had a number of other opportunities to disclose the Lalo abuse. He says when he told the RCMP in vague terms of the abuse, they said it was not part of what they were investigating. No doubt this was not intended by the RCMP to minimize the import of the abuse. To a victim who had difficulty disclosing any abuse it would understandably lead him to think the allegation was being dismissed, just as it was earlier dismissed by the Plaintiff ’ s mother.

That would do nothing to instill any confidence in the mind of any victim that their complaint would be taken seriously. As soon as the Plaintiff summonsed the courage to start disclosing what occurred he must have felt the chill of a cool reception the RCMP gave him. Enough to cause him to freeze up again. Had the reception been different it may well have ushered on a flood of information in relation to both incidents.

Instead the Plaintiff again retreated to the one place he felt safe, hiding in the fog of drugs and alcohol. [ 19 ] The Plaintiff says he was only able to come forward and discuss the incidents of digital penetration and forced oral sex after he met with a parol counselor after his daughter was sexually assaulted in 2006. That is when, for the first time, he felt that someone in authority might believe him. The Plaintiff said he then felt comfortable enough with her to allow himself to open up about his own abuse.

The discussion occurred not in the context of the Plaintiff coming forward to discuss what had happened to him, but in the context of his daughter having been sexually assaulted. That incident caused him great anguish and reignited his own great distress arising from the Lalo assaults. [ 20 ] The present action was started in 2007. I accept that it was within a period of less than one year of the Plaintiff obtaining the capacity to discuss the incident with anyone. The materials before me convince me that this is more than a matter of comfort as we may normally understand it.

I am convinced the Plaintiff found the incidents in his home so offensive that it robbed him of the ability to fully disclose the incidents to anyone, including the lawyers who filed the Shelburne claims. Other than disclosing to his mother when he was a minor, he could not bring himself to disclose the incident or appreciate the consequences until he finally opened up with the counselor in 2006. [ 21 ] The parties will note even that counselor was in a way a person in authority in the sense she was tied to the parole board. The Plaintiff as a parolee was required to meet with her.

The Plaintiff said only in the context of that counseling was he able to feel a degree of comfort which permitted him, for the first time, to disclose what he says happened at the hands of Mr. Lalo. That lead to him being able to discuss the highly invasive incident with his new legal counsel, hence the claim being made shortly thereafter. [ 22 ] This is unlike the situation in (D.B.C. v. The Attorney General of Nova Scotia and Cezar Lalo, Hfx. No. 244401, October 18, 2011) where there was full disclosure of the incident to the police at an early stage.

Even though the Plaintiff in the present case was able to discuss the less intrusive event with his lawyer in 1996 I am satisfied, as I said, he could not bring himself to the next step of discussing the later events with any person including that lawyer in 1996. [ 23 ] Doctor Konopasky referred to some of the things the Plaintiff would have been feeling as it relates to the alleged Lalo abuse. He said for instance, and I paraphrase:

The plaintiff did not think of the damages the sexual abuse caused him even though he made these disclosures to the RCMP. He did nothire a lawyer to present a claim for damages caused as a result of the harm. [24] The lawyer retained to advance the 1996 claim arising from the Shelburne institution abuse cases explained that he did not dosexual abuse type cases. He added the reference to abuse only in an attempt to increase the size of the Shelburne claim. Had he knownthe extent of the abuse alleged, that lawyer now says he would have referred the case to other counsel.

The reference to sexual assaultby Lalo was deleted from the ultimate claim in the Shelburne abuse case as it was not relevant to that process. [25] Dr. Konopasky also suggested : Simply put, the thought did not come to mind.

Instead, he just felt badly about no one taking him seriously. [26] The Doctor also said: thinking about the sexual assaults made the plaintiff feel dirty...he felt ashamed about not having been able to resist, not understandingthat he was not responsible even when he made his claim... at the Shelburne institution. ....he did not appreciate the nature, breath andenduring nature of the harm caused by sexual abuse. His response to his report of sexual abuse being shrugged off was to continue toabuse alcohol and drugs.

The Plaintiff did not: ... seek medical attention at the time he made these disclosures ... to the RCMP .... he did not have a substantial appreciation that thesexual abuse had caused him harm, the ways in which it had causes him harm, and that he needed treatment. [27] It must have been a breath of fresh air in 2006 for the Plaintiff to finally talk to someone, even though she was linked to theparole board. He says only then did he have enough courage and strength to discuss the incident with anyone else. I am satisfied thatlack of trust was linked to the sexual abuse and the position Mr.

Lalo occupied as probation officer. In addition, up to that time thePlaintiff did not appreciate the link between the incidents and the extent of damage it caused him. A Plaintiff who does not discover orbecome aware of a link between sexual abuse and the damages resulting, cannot be said to be aware of the cause of the action until thatlink has been made and they are capable of advancing a claim.

If the incident itself rendered the Plaintiff incapable of advancing theclaim (in this case even disclosing the assault), the limitation does not start to run until a Plaintiff is not only aware but then is capable ofadvancing a claim. It is of little help if a victim finally comes to appreciate the link between a civil wrong and the damage resulting if heor she is still left incapable of advancing a claim. [28] In the present case both the appreciation of the damage and the capacity to advance a claim all arose within one year of thefiling of the Statement of Claim. [29] I reference Jack v.

Canada (Attorney General) (ON SC), [2004] O.J. No. 3294 and say that I am notsuggesting Plaintiffs need to know the precise cause of their injuries before the limitation period begins. It is a requirement that aPlaintiff know that there is some damage linked to the tortfeasor. That process of linking the consequence or damage to the actions ofMr. Lalo only arose in a meaningful way in 2006, when the Plaintiff opened up with his counselor.

The incidents themselves robbed thePlaintiff of the ability to open up earlier and discover the link between the incidents and his consequential condition. [30] I have no doubt the Plaintiff was always aware the abuse happened although for an extended period he tried to block out thosememories. I accept the embarrassment, the rebuke, first by his mother, and then the

summary dismissal by the RCMP of the report ofthe first incident, all left the Plaintiff unable to summons the courage to advance a claim or even tell another human being what actuallyhappened.

[31] Clearly the drafters of Section 2 (5) envisioned situations where the actions of perpetrators in sex abuse cases cause sufficientmental or psychological trauma to render the victim incapable of advancing a claim. Counsel have referred to case statistics that refer tothe difficulties victims have in identifying abusers and advancing, or even reporting claims. The numbers are staggeringly low as itrelates to male victims reporting abuse, much lower than with female victims. I accept the opinion of Dr.

Konoposky that only after hiswork with the counselor did the Plaintiff have a substantial understanding the sexual assaults were legally wrong, that he did not consentand that he is not at fault for what happened and that it caused him harm. The Plaintiff says he is just beginning to understand that hissubstance abuse is a form of self medication in regard to the disgust he felt and for the feelings of shame he felt.

Those feelings all relateto, and arise from the sexual abuse which rendered the Plaintiff incapable of advancing his claim for sexual abuse before he did in 2007. [32] I want to make it clear that lack of capacity has nothing to do with knowledge of or lack of knowledge of the law. Ignorance ofthe law has nothing to do with postponement of the starting of the time period. I am keenly aware of the purpose and objectives oflimitation periods including the evidentiary concerns associated with long delays. In Peixeird v. Habernot (SCC),[1997] S.C.J.

No. 31, the Supreme Court of Canada confirmed the discoverability principle and it’s overarching purpose of avoiding theinjustice of precluding an action before a potential plaintiff becomes aware of the existence of the facts underlying the claim. [33] As I have already noted, the Plaintiff in this case from time to time emerged from the fog of alcohol and drugs enough tovaguely recall the incidents themselves. Not until 2006 when he opened up to his counselor did he appreciate the extent of his damageand the causal connection.

That link is an essential aspect of discoverability in the present case. [34] The Courts have adopted a standard of a ‘reasonable person’ when applying this type of postponement provision (see Novak v.Bond, (SCC), [1999] 1 S.C.R. 808). This ‘reasonable person’ must be a person who would have walked a mile in thePlaintiff’s shoes. Starting as a young boy, incarcerated then twice sexually assaulted by the person who held the key to his freedom. That boy, when assaulted, turns first to his mother and is rebuffed. Later he started to reveal the abuse and is told by the RCMP it isirrelevant.

At the time that person is immersed in the fog of drugs and alcohol, dealing with feelings of shame, anger, frustration, selfblame and blaming others for not protecting him. Through all of that he has to try and first appreciate that neither he nor his mother areto be blamed for what occurred. He has to somehow appreciate that it was more than an insult to his personal integrity but that theincidents may be related to most of the next 19 or 20 years of his life on the streets. Once that appreciation of the causal link is presentthen he had to summons the courage and attain the capacity to do something about it.

That is the reasonable person we must judge. [35] The defendant cannot not now reap the benefit of the destruction and damage that rendered the Plaintiff incapable of disclosingwhat occurred at an earlier date. The sense of embarrassment and shame is still reflected in the lengths to which the Plaintiff has gone tokeep this matter out of the public eye even in the context of this litigation.

Those emotional scars had left the Plaintiff lacking thecapacity to address the wrongs in the many years prior to this litigation having been started. [36] To the Plaintiff I say victims of sexual abuse are never to be blamed. There is only one person to be blamed, that is the onewho commits the assault. In saying that I recognize that it is a lot easier for me sitting up here to say that, than it is for you to feel thatway.

I accept that prior to you talking to the parole counselor you lacked the capacity and understanding to advance your claim. [37] The Limitation defense is struck in relation to the incident that occurred in the Plaintiff’s house. J.