'Improving the Potential of Tort Law for Redressing Historical Abuse Claims: The Need for a Contextualized Approach to the Limitation Defence'

30 Pages Posted: 3 Oct 2011 Last revised: 22 Dec 2011

See all articles by Elizabeth Adjin-Tettey

Elizabeth Adjin-Tettey

University of Victoria - Faculty of Law

Freya Kodar

University of Victoria - Faculty of Law

Date Written: 2011

Abstract

This paper examines the broad question of whether the limitation defence as currently constructed and applied in the context of tort actions for historical abuse in Canadian common law jurisdictions leads to unfairness and inequities, and asks whether a more nuanced and contextualized approach which looks at the power imbalances between the parties is needed to do justice in such cases. The paper canvasses the traditional rationales for setting limitation dates and ways in which courts and legislatures avoid or minimize the harshness of their application to plaintiffs’ claims. Particular attention is paid to the effects of these approaches in historical abuse cases, noting their inability to ensure all survivors of historical abuse can seek redress. The paper uses two historical abuse cases involving sterilization - Muir v Alberta and DE (Guardian ad Litem) v British Columbia - to illustrate the arbitrariness and questionable results of some of the strategies used to circumvent the limitation defence. This paper concludes with some thoughts about a more nuanced and contextualized approach to limitation periods in historical abuse claims. The approach is grounded in the importance of giving meaning to autonomy, security and dignity over one’s body and promotes consistency in survivors’ ability to seek justice for both sexual and non-sexual abuses.

Keywords: tort law, limitation dates, discoverability, historical abuse

Suggested Citation

Adjin-Tettey, Elizabeth and Kodar, Freya, 'Improving the Potential of Tort Law for Redressing Historical Abuse Claims: The Need for a Contextualized Approach to the Limitation Defence' (2011). Ottawa Law Review, Vol. 42, No. 1, 2011. Available at SSRN: https://ssrn.com/abstract=1932455

Elizabeth Adjin-Tettey

University of Victoria - Faculty of Law ( email )

P.O. Box 1700, STN CSC
Victoria, B.C. V8W 2Y2
Canada
250.721.8182 (Phone)
250.721.8146 (Fax)

HOME PAGE: http://law.uvic.ca/faculty_staff/faculty_directory/adjintettey.php

Freya Kodar (Contact Author)

University of Victoria - Faculty of Law ( email )

PO Box 1700, STN CSC
Victoria, British Columbia V8W 2Y2
Canada

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