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

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