1998 BILL 26 Second Session, 24th Legislature, 47 Elizabeth II THE LEGISLA TIVE A SSEMBLY OF A LBERTA B ILL 26 IN STITU TIO N A L C O N FIN EM EN T A N D SEXU A L STER ILIZA TIO N C O M PEN SA TIO N A C T THE MINISTER OF JUSTICE A ND A TTORNEY GENERA L First Reading Second Reading Committee of the Whole Third Reading Royal A ssent

Bill 26 B ILL 26 1998 IN STITU TIO N A L C O N FIN EM EN T A N D SEXU A L STER ILIZA TIO N C O M PEN SA TIO N A C T (Assented to , 1998) Table of Contents

Definitions 1 A pplication 2 Override of Charter 3 Limitation periods, defences 4 Damages in an action 5 Interest 6 Contribution and vicarious liability 7 Costs 8 Schedules P ream ble WHEREA S certain persons were resident in institutions in A lberta pursuant or purportedly pursuant to one or more A cts listed in

Schedule 2; and WHEREA S from 1927 to 1972 certain medical procedures were performed on persons in A lberta pursuant to or allegedly pursuant to a Sexual Sterilization Act listed in

Schedule 2; and WHEREA S persons have brought and may bring claims against Her Majesty the Queen in right of A lberta in respect of alleged confinement in those institutions and in respect of the performance of those medical procedures; and WHEREA S the Government of A lberta desires to balance the interests of the persons bringing the claims and the interests of all A lbertans by removing certain impediments to compensation and by implementing compensation principles to assist in resolving the claims in a fair and consistent manner; 1

THEREFORE HER MA JESTY, by and with the advice and consent of the Legislative A ssembly of A lberta, enacts as follows: D efinitions 1 In this A ct, (a) “action” means an action against Her Majesty the Queen in right of A lberta in which the plaintiff claims any or all of the following, regardless of the nature of the cause of action and regardless of whether the plaintiff also claims damages in relation to other matters: (

i) damages in relation to a procedure listed in

Schedule 1 that was authorized, directed or performed on the plaintiff pursuant to or purportedly pursuant to a Sexual Sterilization Act listed in

Schedule 2; (ii) damages arising out of the confinement of the plaintiff pursuant to or purportedly pursuant to an A ct listed in

Schedule 2, including damages, if any, in relation to any of the following matters, except damages for sexual assault committed against the plaintiff: (

A) the care, supervision of care or custody of the plaintiff; (

B) the plaintiff’s education; (

C) the administration of drugs or medication to the plaintiff; (

D) a tort committed against the plaintiff; (

E) any duty or obligation owed to the plaintiff; (iii) damages for sexual assault committed against the plaintiff during the confinement of the plaintiff pursuant to or purportedly pursuant to an A ct listed in

Schedule 2; (b) “Her Majesty the Queen in right of A lberta” includes an employee or agent of, or a person under a contract or fee for service arrangement with, Her Majesty the Queen in right of A lberta; (c) “plaintiff’ means the person who is alleged to have suffered loss, regardless of whether the action is brought in the person's own name or in the name of another on that person’s behalf; 2

(d) “sexual assault” means an assault in the form of fellatio, cunnilingus, vaginal or anal intercourse or digital penetration. A pplication 2 This A ct applies to all actions, whether commenced before or after the coming into force of this A ct, except actions in which final judgment was given before the coming into force of this A ct. O verride of C harter 3 This A ct operates notwithstanding (

a) the provisions of sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982,

Schedule B to the Canada Act, 1982, (U.K.) 1982 c11, and (

b) the Alberta Bill of Rights. Lim itation periods, defences 4(1) A law that would, but for this section, prohibit the bringing of an action claiming damages referred to in

section 1(a)(i), (ii) or (iii) by reason of the passage of time does not operate to prohibit the action if the action (

a) was commenced before the coming into force of this A ct, or (

b) is commenced within 180 days after the coming into force of this A ct.

(2) Notwithstanding any other law in force in A lberta, no action may be commenced after the 180-day period referred to in subsection (1)(b).

(3) Where, in the case of a claim for damages referred to in

section 1(a)(iii), the individual defendant who is alleged to have committed the sexual assault would, but for subsection (1), have been able to successfully defend the claim, the court shall not make any of the following awards as against the individual defendant: (

a) an award of damages referred to in

section 1(a)(iii) that is in excess of $150 000; (

b) an award in respect of non-compensatory, punitive, exemplary or aggravated damages under

section 5(3); (

c) an award for pre-judgment interest under

section 6(2). 3

(4) Subject to subsection (2) no defence against liability in respect of a claim referred to in

section 1(a)(

i) is available to Her Majesty the Queen in right of A lberta in an action. D am ages in an action 5(1) Where a court awards damages to a plaintiff in one or more actions, (

a) the aggregate amount that is awarded for damages referred to in

section 1(a)(

i) must not be less than $5000, (

b) the aggregate amount that is awarded for all damages referred to in

section 1(a)(

i) and (ii) must not exceed $150 000, and (

c) the aggregate amount that is awarded for damages referred to in

section 1(a)(iii) as against all defendants other than the individual defendant who is found by the court to have committed the sexual assault must not exceed $150 000.

(2) Subject to subsection (3), a court shall not make any award in respect of non-compensatory, punitive, exemplary or aggravated damages in an action.

(3) In the case of a claim for damages referred to in

section 1(a)(iii) a court may make an award referred to in subsection (2) in respect of the sexual assault but only as against the individual defendant who is found by the court to have committed the sexual assault. Interest 6(1) Notwithstanding the Judgment Interest Act but subject to subsection (2), a court shall not make an award for pre-judgment interest in an action.

(2) Where a court awards damages referred to in

section 1(a)(iii), the court may make an award for pre-judgment interest only as against the individual defendant who is found by the court to have committed the sexual assault. C ontribution and vicarious liability 7 Notwithstanding the Contributory Negligence Act, any law in respect of vicarious liability or any other law in force in A lberta, the other defendants in an action are not liable for the payment of (

a) that part of an award of damages referred to in

section 1(a) (iii) as against the individual defendant who is found by the court to have committed the sexual assault, that is in excess of $150 000, or 4

(

b) any part of an award for non-compensatory, punitive, exemplary or aggravated damages or for pre-judgment interest made against the individual defendant referred to in clause (a). C osts 8(1) A court shall not award costs on a solicitor and client basis in an action.

(2) Where in an action a court awards costs between parties, those costs must not exceed the amounts set out in the columns of

Schedule C of the Alberta Rules of Court, depending on the amount involved, and without any multiplier.

SC H ED U LE 1 Bilateral Hysterectomy Bilateral Oophorectomy Bilateral Orchidectomy Bilateral Salpingectomy Bilateral Salpingo-oophorectomy Bilateral Salpingo-oophorectomy and Hysterectomy Bilateral Tubal Ligation Bilateral Vasectomy Bilateral Vasectomy and Orchidectomy Hysterectomy Oophorectomy Orchidectomy Salpingectomy Salpingo-oophorectomy Testicular Biopsy Unilateral Orchidectomy Unilateral Salpingectomy Unilateral Salpingectomy and Contralateral Salpingectomy Unilateral Salpingectomy-oorphorectomy and Contralateral Oophorectomy Unilateral Testicular Biopsy Unilateral Vasectomy Unilateral Vasectomy and Contralateral Epididymectomy Unilateral Vasectomy and Contralateral Orchidectomy Vasectomy A ny other procedure, however described, that involves the removal or alteration of a sexual reproductive organ or related tissue.

SC H ED U LE 2 The Insanity A ct, SA 1907 c7 The Insanity A ct, RSA 1922 c223 The Mental Defectives A ct, RSA 1942 cl91 5

The Mental Defectives Act, RSA 1955 c199 The Mental Diseases Act, RSA 1942 c192 The Mental Diseases Act, RSA 1955 c200 The Mental Health Act, SA 1964 c54 The Mental Health Act, RSA 1970 c231 The Estates of the Mentally Incompetent Act, RSA 1942 c23 The Mentally Incapacitated Persons Act, RSA 1955 c201 The Mentally Incapacitated Persons Act, RSA 1970 c232 The Sexual Sterilization Act, SA 1928 c37 The Sexual Sterilization Act, RSA 1942 c194 The Sexual Sterilization Act, RSA 1955 c311 The Sexual Sterilization Act, RSA 1970 c341 6 Title: 1998 (24th, 2nd) Bill 26, Institutional Confinement and Sexual Sterilization Compensation Act