M.(K.) v. M.(H.)

M.(K.) v. M.(H.)
Collection
Supreme Court Judgments
Date
1992-10-29
Report
[1992] 3 SCR 6
Case number
21763
Judges
La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank
On appeal from
Ontario
Subjects
Action
Notes
SCC Case Information: 21763
Decision Content
M.(K.) v. M.(H.), [1992] 3 S.C.R. 6
K.M. Appellant
v.
H.M. Respondent
and
Women's Legal Education and Action Fund Intervener
Indexed as: M.(K.) v. M.(H.)
File No.: 21763.
1991: November 8; 1992: October 29.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
Limitation of actions — Torts — Assault and battery — Incest — Woman bringing action against father for damages for incest — Whether or not action limited by Limitations Act — Application of the reasonable discoverability principle — Whether or not incest a separate and distinct tort — Limitations Act, R.S.O. 1980, c. 240, s. 45(1)(j), 47.
Limitation of actions — Equity — Fiduciary relationship — Parent‑child — Woman bringing action against father for incest — Whether incest constitutes a breach of fiduciary duty by a parent — Whether limitation period applicable and whether the defence of laches applies.
Limitation of actions — Fraudulent concealment — Incest — Whether a limitation period in an incest action is postponed by defendant's fraudulent concealment.
Appellant was the victim of incest. It began with fondling by her father and, after the age of ten or eleven, involved regular sexual intercourse with him. Her cooperation and silence were elicited by various threats which appellant had good reason to take seriously. She was also rewarded with pop, potato chips and money. In time, respondent gave her the responsibility for initiating sexual contact. Appellant tried several times to disclose this abuse to no avail. At the age of ten or eleven appellant tried to tell her mother and at age sixteen she told a high school guidance counsellor, who referred her to a school psychologist. Her father had her recant both to the psychologist and to a lawyer for the local school board. Other disclosures made after leaving home came to nothing until she finally attended meetings of a self‑help group for incest victims and realized that her psychological problems as an adult were caused by the incest. With therapy appellant also came to realize that it was her father rather than herself who was at fault. Professional opinion was that appellant was unable to assess her situation rationally until she entered this therapy.
In 1985, at the age of 28, appellant sued her father for damages arising from the incest and for breach of a parent's fiduciary duty. A jury found that the respondent had sexually assaulted his daughter, and assessed tort damages of $50,000. The trial judge ruled, however, that the action was barred by s. 45 of the Limitations Act. The Ontario Court of Appeal dismissed an appeal from the trial judge's ruling.
At issue here are: (1) whether incest is a separate and distinct tort not subject to any limitation period; (2) whether incest constitutes a breach of fiduciary duty by a parent not subject to any limitation period; and (3) if a limitation period applies, whether it is postponed by the reasonable discoverability principle.
Held: The appeal should be allowed.
Per La Forest, Gonthier, Cory and Iacobucci JJ.: Incest is both a tortious assault and a breach of fiduciary duty. The tort claim, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and the plaintiff's injuries. In this case, that discovery occurred only when the appellant entered therapy, and the lawsuit was commenced promptly thereafter. The time for bringing a claim for breach of a fiduciary duty is not limited by statute in Ontario, and this breach therefore stands along with the tort claim as a basis for recovery by the appellant. Incest does not constitute a distinct tort, separate and apart from the intentional tort of assault and battery, and the continuous nature of the tort need not be decided here.
Incest unquestionably constitutes an assault and battery, and based on the jury's verdict, all of the requisite elements of the test were proved. Assault and battery, however, can only serve as a crude legal description of incest; the law must also take account of the unique and complex nature of incestuous abuse and its consequential harms. Various psychological and emotional harms immediately beset the victim of incest, but much of the damage is latent and extremely debilitating. When the damages begin to become apparent, the causal connection between the incestuous activity and present psychological injuries is often unknown to the victim. A statute of limitations provides little incentive for an incest victim to prosecute his or her action in a timely fashion if the victim has been rendered psychologically incapable of recognizing that a cause of action exists.
The reasonable discoverability rule, as developed in previous decisions of this Court, should be applied and the limitations period should begin to run only when the plaintiff has a substantial awareness of the harm and its likely cause. The causal link between fault and damage is an important fact, essential to the formulation of the right of action, that is often missing in cases of incest. In making this link, the plaintiff must have an awareness of the wrongfulness of the defendant's incestuous conduct. Battery consists of wrongful touching, and the plaintiff must discover the wrongfulness of the contact and its consequential effects before the cause of action accrues. The issue properly turns on the question of when the victim becomes fully cognizant of who bears the responsibility for his or her childhood abuse, for it is then that the victim realizes the nature of the wrong suffered. As such, responsibility plays a pivotal role in both the genesis and the cessation of the harms caused by incestuous abuse.
The close connection between therapy and the shifting of responsibility is typical in incest cases and creates a presumption that incest victims only discover the necessary connection between their injuries and the wrong done to them (thus discovering their cause of action) during some form of psychotherapy. If the evidence in a particular case is consistent with the typical features of "post‑incest" syndrome, then the presumption will arise. The defendant can refute the presumption by leading evidence showing that the plaintiff appreciated the causal link between the harm and its origin without the benefit of therapy.
In this case, the trial judge did not address the critical issue of when appellant discovered her cause of action, in the sense of having a substantial awareness of the harm and its likely cause, and made no finding that appellant had made the necessary connection at any time before entering therapy. Moreover, the presumption outlined above should be applied here. Appellant was a typical incest survivor, and both presumptively and in fact did not make the causative link between her injuries and childhood history until she received therapeutic assistance. Evidence to the contrary was entirely speculative. In the result, the limitations period did not begin to run against her until she received therapy, and this action was commenced before that period expired.
Appellant argued that the limitation period was also tolled by respondent's fraudulent concealment of her cause of action. This point need not be decided, but some comment on the law of fraudulent concealment is provided for the sake of clarity. Fraudulent concealment (when applicable) will toll the limitation of both common law and equitable claims until the time the plaintiff can reasonably discover her cause of action. Incest cases may be amenable to the application of fraudulent concealment as an answer to a limitations defence; incest takes place in a climate of secrecy, and the victim's silence is attained through various insidious measures which condition the victim to conceal the wrong from herself. The fact that the abuser is a trusted family authority figure in and of itself masks the wrongfulness of the conduct in the child's eyes, thus fraudulently concealing the cause of action.
Incest also constitutes a breach of the fiduciary relationship between parent and child. Ontario's Limitations Act does not limit actions against a fiduciary, although certain equitable doctrines may bar a claim because of delay. The courts below did not consider appellant's claim in equity, but the issue should now be addressed; a breach of fiduciary duty cannot be automatically overlooked in favour of concurrent common law claims. The relationship between parent and child is fiduciary in nature, and the sexual assault of one's child is a grievous breach of the obligations arising from that relationship. Equity has imposed fiduciary obligations on parents in contexts other than incest, and a duty to refrain from incestuous assaults on one's child is an obvious addition to this category. The three indicia of a fiduciary relationship are all evident in this case, and the non‑economic interests of an incest victim are particularly susceptible to protection from the law of equity.
The plaintiff's delay in bringing her claim for breach of fiduciary duty raises three potential hurdles that may bar her claim: limitations legislation, the application of that legislation by analogy, and the equitable doctrine of laches. All of these hurdles, however, are overcome in this case. First Ontario's Limitations Act applies only to a closed list of enumerated causes of action which does not include fiduciary obligations. Equity in some cases will operate by analogy and adopt a statutory limitation period that does not otherwise expressly apply, but this is not such a case. Equity has rarely limited a claim by analogy when the action falls within its exclusive jurisdiction, as in this claim for breach of fiduciary duty. Moreover, even if it is appropriate to draw an analogy to a common law action, the analogy will be governed by the parameters of the equitable doctrine of laches. Finally, any analogy would be nullified by the doctrine of fraudulent concealment. Even if an analogy could be drawn, it would not be fatal to appellant's claim: as with the limitation in tort, a limitation by analogy would be tolled by the operation of the reasonable discoverability principle.
For the respondent to benefit from the defence of laches, acquiescence on the part of the appellant must be demonstrated. Acquiescence in this context consists of delay by a plaintiff despite knowledge that her rights have been violated. Such a delay gives rise to an inference that the plaintiff's rights have been waived. A plaintiff's conduct will be measured objectively: was it reasonable for the plaintiff to have remained ignorant of her legal rights given her knowledge of the facts relevant to a legal claim? In this case, because the appellant mistakenly blamed herself for the incest, it was entirely reasonable for her to have been incapable of appreciating that her rights in equity or in law had been violated. As such, she could not have acquiesced to the respondent's conduct. The doctrine of acquiescence bears a marked similarity to the common law discoverability principle. They share the common requirement of knowledge on the part of the plaintiff. The point of distinction is a residual inquiry in equity: in light of the plaintiff's knowledge, can it reasonably be inferred that the plaintiff has acquiesced to the defendant's conduct? The answer to that question depends on the circumstances of each case, but it would require particularly compelling evidence to demonstrate that an incest victim had "acquiesced" to the sexual assaults made against her.
As for the remedy in this case, the jury has assessed damages in tort, and this award should not be disturbed. An additional remedy in equity should not be awarded in this case, as the policy objectives animating the remedy for this breach of a parent's fiduciary duty are the same as those underlying incestuous sexual assault. Both seek to compensate the victim for her injuries and to punish the wrongdoer.
Per L'Heureux‑Dubé J.: The reasons and result of La Forest J. and the comments of McLachlin J. on the nature and quantum of damages associated with a breach of fiduciary duty, as opposed to those underlying the torts of battery and assault, were agreed with.
Per Sopinka J.: The reasons and result of La Forest J. were agreed with except with respect to the creation of a presumption and the shifting of the legal burden of proof.
Resort should not be had to a presumption that a plaintiff typical of the syndrome is unaware of the injury done to her until she undergoes therapy. Firstly, the legal effect of presumptions is varied and uncertain as to its evidentiary effect. Secondly, this presumption will create difficulties for the trial judge and the litigants in that it will reverse the ordinary burden of proof without any justification. It is not clear whether the presumption, which would require determination on a prima facie basis, would create merely an evidentiary burden or a legal burden. The former could be blunted by the defendant's leading some evidence restoring the legal burden of proof to the plaintiff. The latter would reverse the legal burden of proof so that the defendant would bear the risk of non persuasion and is the probable result intended because of the use of the term "refute".
There was no reason to reverse the traditional burden of proof. The basic criteria for the allocation of the burden of proof apply to justify maintaining the legal burden of proof with respect to reasonable discoverability on the plaintiff. It is the plaintiff who is seeking an exemption from the normal operation of the statute of limitations asserting that she was not aware of her cause of action for many years after the statutory period would otherwise have commenced to run. Moreover the plaintiff is in the best position to adduce evidence of her lack of awareness and the defendant is not. The appeal should be disposed of as proposed by La Forest J.
Per McLachlin J.: Agreement with the reasons of La Forest J. was qualified.
A presumption that the plaintiff discovers the cause of action when a therapeutic relationship begins is not necessary. The question is a matter of fact to be determined in all the circumstances. A presumption is appropriate in special circumstances, as where the facts are largely in the possession of the opposing party on an issue, but there were no such circumstances here. Further, there was no magic in the commencement of a therapeutic relationship. The commencement of the relationship is only one of a number of factors which should be considered in determining when the limitation period begins to run.
The award which the jury made was not adequate. The jury assessed damages for the tort of battery and assault, as requested, and the appellant did not appeal from that award and only asked that the jury's award be reinstated. The question of whether the award was appropriate or not did not arise here.
The measure of damages for assault and battery would not necessarily be the same as compensation for breach of fiduciary duty. The wrong encompassed by the torts of battery and assault may be different from the wrong encompassed by the action for a breach of fiduciary duty. Trustees have always been held to highest account in a manner stricter than that applicable to tortfeasors. While agreeing with La Forest J. that where the same policy objectives underlie two different causes of action similar measures of compensation may be appropriate, the policy objectives or the wrong involved in breach of fiduciary duty of this nature are not necessarily the same as those which underlie the torts of battery and assault.
Cases Cited
By La Forest J.
Considered: Tyson v. Tyson, 727 P.2d 226 (1986); R. v. L. (W.K.), [1991] 1 S.C.R. 1091; Stubbings v. Webb, [1991] 3 All E.R. 949; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 147; DeRose v. Carswell, 242 Cal. Rptr. 368 (1987); Hammer v. Hammer, 418 N.W.2d 23 (1987); Evans v. Eckelman, 265 Cal. Rptr. 605 (1990); Gray v. Reeves (1992), 64 B.C.L.R. (2d) 275; Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534; Kitchen v. Royal Air Forces Association, [1958] 2 All E.R. 241; Guerin v. The Queen, [1984] 2 S.C.R. 335; Norberg v. Wynrib, [1992] 2 S.C.R. 226; Frame v. Smith, [1987] 2 S.C.R. 99; Lac Minerals Ltd. v. International Corona Resources Ltd., [1989] 2 S.C.R. 574; McInerney v. MacDonald, [1992] 2 S.C.R. 138; Hovenden v. Annesley (1806), 2 Sch. & Lef. 607, 9 R.R. 119; referred to: Cook v. Lewis, [1951] S.C.R. 830; Doe on the demise of Count Duroure v. Jones (1791), 4 T.R. 301, 100 E.R. 1031; A'Court v. Cross (1825), 3 Bing. 329, 130 E.R. 540; Dundee Harbour Trustees v. Dougall (1852), 1 Macq. 317; Deaville v. Boegeman (1984), 48 O.R. (2d) 725; Cholmondeley v. Clinton (1820), 2 Jac. & W. 1, 37 E.R. 527; Urie v. Thompson, 337 U.S. 163 (1949); Raymond v. Eli Lilly & Co., 371 A.2d 170 (1977); Franklin v. Albert, 411 N.E.2d 458 (1980); Johnson v. Johnson, 701 F.Supp. 1363 (1988); Mary D. v. John D., 264 Cal. Rptr. 633 (1989); E.W. v. D.C.H., 754 P.2d 817 (1988); Lindabury v. Lindabury, 552 So.2d 1117 (1989); Doe v. LaBrosse, 588 A.2d 605 (1991); Osland v. Osland, 442 N.W.2d 907; Raymond v. Ingram, 737 P.2d 314 (1987); Kaiser v. Milliman, 747 P.2d 1130 (1988); Whatcott v. Whatcott, 790 P.2d 578 (1990); Petersen v. Bruen, 792 P.2d 18 (1990); Meiers‑Post v. Schafer, 427 N.W.2d 606 (1988); Nicolette v. Carey, 751 F.Supp. 695 (1990); Levitt v. Carr (1992), 66 B.C.L.R. (2d) 58; Gibbs v. Guild (1882), 9 Q.B.D. 59; Armstrong v. Milburn (1886), 54 L.T. 723; Oelkers v. Ellis, [1914] 2 K.B. 139; Lynn v. Bamber, [1930] 2 K.B. 72; Legh v. Legh (1930), 143 L.T. 151; Massie & Renwick Ltd. v. Underwriters' Survey Bureau, [1940] S.C.R. 218, approving [1938] 2 D.L.R. 31; Pigott v. Nesbitt Thomson & Co., [1939] O.R. 66 (C.A.), aff'd [1941] S.C.R. 520; 447927 Ontario Inc. v. Pizza Pizza Ltd. (1987), 16 C.P.C. (2d) 277; Mouat v. Boyce, N.Z.C.A., March 11, 1992, unreported; Follis v. Albemarle TP., [1941] 1 D.L.R. 178; Henderson v. Johnson (1956), 5 D.L.R. (2d) 524; Menick v. Goldy, 280 P.2d 844 (1955); Ohio Casualty Insurance Co. v. Mallison, 354 P.2d 800 (1960); Fitzgerald v. Newark Morning Ledger Co., 267 A.2d 557 (1970); Emery v. Emery, 289 P.2d 218 (1955); Soar v. Ashwell, [1893] 2 Q.B. 390; Taylor v. Davies, [1920] A.C. 636; Knox v. Gye (1872), L.R. 5 H.L. 656; Metropolitan Bank v. Heiron (1880), 5 Ex. D. 319; Lindsay Petroleum Co. v. Hurd (1874), L.R. 5 P.C. 221; Erlanger v. New Sombrero Phosphate Co. (1878), 3 App. Cas. 1218 (H.L.); Canada Trust Co. v. Lloyd, [1968] S.C.R. 300; Blundon v. Storm, [1972] S.C.R. 135; Re Howlett, [1949] Ch. 767; Taylor v. Wallbridge (1879), 2 S.C.R. 616; Aquaculture Corp. v. New Zealand Green Mussel Co., [1990] 3 N.Z.L.R. 299.
By Sopinka J.
Referred to: National Trust Co. v. Wong Aviation Ltd., [1969] S.C.R. 481.
By McLachlin J.
Referred to: Canson Enterprises Ltd. v. Boughton & Co., [1991] 3 S.C.R. 534.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 15 .
Courts of Justice Act, 1984, S.O. 1984, c. 11, s. 121(2).
Criminal Code, R.S.C., 1985, c. C‑46, s. 155(1) .
Limitation Act, R.S.B.C. 1979, c. 236, ss. 3(4), 6(3).
Limitation Act, 1623, (Eng.), 21 Jac. 1, c. 16.
Limitation Act, 1939, 1939 (Eng.), c. 21, s. 26.
Limitation Amendment Act, 1992, S.B.C. 1992, c. 44.
Limitation of Actions Act, R.S.A. 1980, c. L‑15, ss. 6, 4(1)(g).
Limitation of Actions Act, R.S.M. 1987, c. L150, s. 2(1)(n).
Limitation of Actions Act, R.S.N.B. 1973, c. L‑8, s. 6.
Limitation of Actions Act, R.S.S. 1978, c. L‑15, s. 3(1)(j).
Limitations Act, R.S.O. 1980, c. 240, ss. 2, 45(1)(j), 42, 43(2), 47.
Municipal Act, R.S.B.C. 1960, c. 255.
Real Property Limitation Act, 1833, (Eng.), 3 & 4 Will. 4, c. 27.
Statute of Limitations, R.S.P.E.I. 1988, c. S‑7, s. 2(1)(g).
Authors Cited
Allen, Margaret J. "Tort Remedies for Incestuous Abuse" (1983), 13 Golden Gate U. L. Rev. 609.
Atrens, Jerome J. "Intentional Interference with the Person". In Allen M. Linden, ed. Studies in Canadian Tort Law. Toronto: Butterworths, 1968.
Brunyate, John. "Fraud and the Statutes of Limitations" (1930), 4 Cambridge L.J. 174.
Brunyate, John. Limitation of Actions in Equity. London: Stevens & Sons, 1932.
DeRose, Denise M. "Adult Incest Survivors and the Statute of Limitations: The Delayed Discovery Rule and Long‑Term Damages" (1985), 25 Santa Clara L. Rev. 191.
Des Rosiers, Natalie. "Les recours des victimes d'inceste et d'agression sexuelle". In Pierre Legrand, ed. Common law d'un siècle à l'autre. Cowansville: Yvan Blais Inc., 1992.
Des Rosiers, Natalie. "Limitation Periods and Civil Remedies for Childhood Sexual Abuse" (1992), 9 C.F.L.Q. 43.
54 C.J.S. Limitation of Actions § 36.
51 Am Jur 2d § 83.
Finkelhor, David and Angela Browne. "The Traumatic Impact of Child Sexual Abuse: A Conceptualization" (1985), 55 Amer. J. Orthopsychiat. 530.
Fridman, Gerald Henry Louis. Fridman on Torts. London: Waterlow Publishers, 1990.
Gelinas, Denise J. "The Persisting Effects of Incest" (1983), 46 Psychiatry 312.
Halsbury's Laws of England, 2nd ed., vol. 20.
Halsbury's Laws of England, 4th ed., vol. 28. London: Butterworths, 1979.
Halsbury's Law of England, 4th ed., vol. 16 reissue. London: Butterworths, 1992.
Handler, Carolyn B. "Civil Claims of Adults Molested as Children: Maturation of Harm and the Statute of Limitations Hurdle" (1987), 15 Fordham Urb. L.J. 709.
Hartnett, Elaine M. "Use of a Massachusetts Discovery Rule by Adult Survivors of Father-Daughter Incest" (1990), 24 New Eng. L. Rev. 1243.
Jorgenson, L. and R. M. Randles, "Time Out: The Statute of Limitations and Fiduciary Theory in Psychotherapist Sexual Misconduct Cases" (1991), 44 Okla. L. Rev. 181.
Lamm, Jocelyn B. "Easing Access to the Courts for Incest Victims: Toward an Equitable Application of the Delayed Discovery Rule" (1991), 100 Yale L.J. 2189.
McCormick, Charles Tilford. McCormick on Evidence, 3rd ed. Lawyer's ed. By Edward W. Cleary. St. Paul, Minn.: West Publishing Co., 1984.
Meagher, R. P., W. M. C. Gummow and J. R. F. Lehane. Equity Doctrines and Remedies. Sydney: Butterworths, 1984.
Nabors, Kelli L. "The Statute of Limitations; A Procedural Stumbling Block in Civil Incestuous Abuse Suits" (1990), 14 Law & Psychology Rev. 153.
Ontario. Ministry of the Attorney General. Limitations Act Consultation Group. Report of the Limitations Act Consultation Group. "Recommendations for a New Limitations Act". Toronto: Ministry of the Attorney General, 1991.
Rosenfeld, Alan. "The Statute of Limitations Barrier in Childhood Sexual Abuse Cases: The Equitable Estoppel Remedy" (1989), 12 Harv. Women's L.J. 206.
Salten, Melissa G. "Statutes of Limitations in Civil Incest Suits: Preserving the Victim's Remedy" 7 Harv. Women's L.J. 189.
Shepherd, J. C. The Law of Fiduciaries. Agincourt, Ont.: Carswell, 1981.
Summit, Roland C. "The Child Sexual Abuse Accommodation Syndrome" (1983), 7 Child Abuse & Neglect 177.
APPEAL from a judgment of the Ontario Court of Appeal (1989), 18 A.C.W.S. (3d) 490, dismissing an appeal from a judgment of Maloney J. Appeal allowed.
James W. W. Neeb, Q.C., and Shelly J. Harper, for the appellant.
Murray E. McGee, for the respondent.
Elizabeth McIntyre and Nicole Tellier, for the intervener.
//La Forest J.//
The judgment of La Forest, Gonthier, Cory and Iacobucci JJ. was delivered by
La Forest J.—This case concerns the procedural obstacles facing victims of childhood incestuous abuse who attempt to vindicate their rights in a civil action for damages against the perpetrator of the incest. While the problem of incest is not new, it has only recently gained recognition as one of the more serious depredations plaguing Canadian families. Its incidence is alarming and profoundly disturbing. The damages wrought by incest are peculiarly complex and devastating, often manifesting themselves slowly and imperceptibly, so that the victim may only come to realize the harms she (and at times he) has suffered, and their cause, long after the statute of limitations has ostensibly proscribed a civil remedy. It has been said that the statute of limitations remains the primary stumbling block for adult survivors of incest, and this has proved to be the case thus far for the appellant in the present action. The appellant commenced this action for damages occasioned as a result of recurrent sexual assaults between the ages of eight and sixteen when she was twenty-eight. A jury found that the respondent committed sexual assault upon the appellant and assessed damages at $50,000, but her action was dismissed on the basis of a statute of limitations.
Background
The appellant testified at trial that the abuse began when she was eight when the respondent, her father, asked her about her knowledge of the female genital and breast areas and the male genital area. It progressed to the respondent's touching her body and telling her that "if he played with [her] breasts that they would grow big". Intercourse began when she was between ten and eleven and continued thereafter two or three times a week. Her cooperation and silence were elicited by various means: the respondent reportedly threatened that disclosure would cause her mother to commit suicide, the family would break up, nobody would believe her, and finally that he would kill her. The appellant had good reason to take these threats seriously, inasmuch as she was told that her mother had been hospitalized for attempting to harm her when she was an infant by cutting her wrists; her father pointed out the scars on her wrist as proof. The appellant's mother, who was also named as a defendant in the action, confirmed the incident, but attributed it to depression. The appellant also gave evidence that her mother regularly exhibited irrational behaviour when she was upset, such as pulling her hair and screaming.
In addition to the threats, the respondent induced his daughter to submit to the abuse silently; he rewarded her with pop, potato chips and money. In time, he gave her the responsibility for initiating sexual contact. She was instructed to leave her bedroom light on when she wanted him, and she complied out of fear that he would turn to her younger sister for gratification. Eventually, she turned on the light because "that was the way for [her] to do it". Her mental process during the act of intercourse was to imagine herself as an inanimate object, for example a door handle or carpet. This process took place against an emotional backdrop of fear — fear of him and fear of discovery.
At the age of ten or eleven the appellant tried to tell her mother what was occurring by obliquely referring to a white substance that appeared on her genital area, but she testified that her mother ignored the complaint. Her mother denied that she was unresponsive, and testified that she gave her daughter a book on menstruation. When the appellant was sixteen she told a high school guidance counsellor that her father was having sex with her. She made the disclosure because she thought she could trust the counsellor and that she would be removed from the home so as to be "safe" from her father. Although she was not certain that having sex with her father was wrong, she knew she did not want him to do it to her any more. She was ultimately referred to a psychologist at the Kitchener-Waterloo Hospital, Dr. McKie, and she recalls that he seemed to disbelieve her complaint since he kept sending her home. His report, dated July 16, 1973, indicates that after interviewing the appellant and respondent separately, both came to see him and told him that "it was all a lie and things are fine now", whereupon no further steps were taken. The appellant does not remember this, but testified that her father brought her to see a lawyer for the local school board and forced her to tell the lawyer that she had been lying about her allegations of incest.
Later that year the appellant left home to live with another family as their babysitter. She told her employer of the incest, but nothing came of it. The following year she obtained employment as a waitress, where she met Steven. They were married a short while later. Her evidence was that she married him so that she could visit her siblings at the family home without being assaulted by the respondent. She harboured the belief that she was protected from further incestuous abuse because she thought her husband now "owned" her and therefore enjoyed an exclusive right to have sex with her, and that he had thus replaced her father as her owner. She also disclosed the incest to her husband, and although there was some conflict in the evidence as to what his response was, the matter went no further.
Over the next few years the appellant had three children and continued to work at a series of low-paying jobs. In the fall of 1982 the appellant and her husband separated because she could no longer tolerate sexual relations with him. She sought counselling for depression and her marital problems in the spring of 1983, and was referred to Dr. Voss, a psychologist at the Kitchener-Waterloo Hospital. He read the hospital file on her consultation with Dr. McKie in 1973, and the subject of incest was accordingly raised during one of their sessions. However, the appellant did not want to talk about the incest and Dr. Voss did not feel it prudent to pursue the subject, in light of his professional opinion that the requisite degree of trust between patient and therapist had not been established to deal effectively with the problem, and because her current problems did not appear to be directly connected to her history of incest.
Later in 1983 the appellant met Peter, to whom she became engaged to be married. Shortly after they met, she told him of the incestuous abuse because, in her words, she "didn't want to lose him and I wanted him to know right away what I had done". As a result of their discussion, she made enquiries about self-help groups for incest victims and found one in Kitchener. It was during the course of attending meetings of this group in 1984 that the appellant began to recall many of her childhood experiences and to make the connection between that history and her psychological and emotional problems. Until then she believed that her phobias, including a fear of strangers and difficulties coping with her children, were attributable to her own stupidity. She was only able to overcome her overwhelming feelings of guilt for causing the incest once she came to the realization that it was her father who was responsible for the abuse. Beginning in 1985 she has continued in therapy with a marital and family therapist, Ms. Pressman, who also testified at the trial.
In Ms. Pressman's opinion, the appellant would have been unaware of the connection between the incest and her psychological and emotional injuries until she understood that she was not responsible for her childhood abuse, and had assigned the blame to her father. Although she had a constant, if vague, awareness of the fact of incest, the appellant repressed or blocked out much of it and was thus unaware that her level of functioning was related to those earlier events in her life. This repression originally took the form of dissociation, whereby the appellant would imagine herself as some inanimate object during the course of the incestuous assaults. The appellant's later disclosure of the incest to a number of people did not detract from Ms. Pressman's opinion in this regard. Similarly, Dr. Mausberg, a psychiatrist retained by the appellant in contemplation of this litigation, testified that the earlier disclosures indicated some awareness of the incest and its consequences, but it was not until the appellant began therapy that she could make a connection between the two. Although there may at times have been an intellectual awareness of the correlation between cause and effect, the appellant did not have an emotional awareness of the connection. In other words, she was unable to assess her situation rationally. Dr. Mausberg also stressed the great feelings of guilt engendered by the appellant's perceived role in instigating the sexual contact by turning on the light, and how she came to believe that this was part of growing up. Even as she came to realize how untrue this was, she still felt responsible for the abuse. His clinical assessment was that the appellant was suffering major depression resulting from incestuous activity that occurred from childhood into adolescence.
The respondent, on the other hand, retained a psychologist, Dr. Langevin, to conduct an assessment of the appellant. He questioned Dr. Mausberg's findings, but conceded that the appellant had suffered depression at different times in her adult life. He doubted that the appellant would repress an emotional awareness of the incest and its consequences while having an intellectual awareness of it. For him, dissociation would normally entail a lack of awareness of the total cognitive or thought processes and emotions surrounding the anxiety-producing situation. Dr. Langevin did agree that the best response that can be hoped for in an incest victim is for her to fix responsibility for the abuse on the perpetrator.
In 1985 the appellant sued her father for damages arising from the incest, or in the alternative for the infliction of mental distress. Further damages were claimed for breach of a parent's fiduciary duty to care for and minister to his child. The claims of mental distress and breach of fiduciary duty were also made against the appellant's mother. Before the trial began, counsel for the respondent moved for dismissal of the action on the ground that it was barred by the passage of time pursuant to s. 45 of the Limitations Act, R.S.O. 1980, c. 240. It reads:
45.—(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned,
. . .
(j)an action for assault, battery, wounding or imprisonment, within four years after the cause of action arose;
However, s. 47 of the Act postpones the limitation period if the plaintiff is under a legal disability — i.e., is a minor, mental defective, mental incompetent or of unsound mind, and the appellant had pleaded that she had been of unsound mind until she underwent therapy. It reads:
47. Where a person entitled to bring an action mentioned in section 45 or 46 is at the time the cause of action accrues a minor, mental defective, mental incompetent or of unsound mind, the period within which the action may be brought shall be reckoned from the date when such person became of full age or of sound mind.
The trial judge postponed the limitations motion until the end of the trial, so that it could be decided in light of all the evidence.
The jury found that the respondent had sexually assaulted his daughter, and awarded $50,000 in damages. However, Maloney J. allowed the respondent's limitations application, and found that action statute-barred. He ruled that the appellant had been of sound mind from the age of majority, in that she had been capable of retaining and instructing counsel. Moreover, assuming that her cause of action only accrued when it was reasonably discoverable, Maloney J. found that from the age of sixteen the appellant was aware that she had been wronged and had suffered adverse effects. Accordingly, her cause of action was reasonably discoverable at that time, and the subsequent lapse of time before commencing the action contravened the Limitations Act.
By endorsement the Ontario Court of Appeal dismissed an appeal of the limitations decision. Leave to appeal to this Court was granted on November 15, 1990 and the Women's Legal Education and Action Fund (LEAF) was subsequently granted leave to intervene.
Issues
Several issues were argued by the appellant, and for the sake of completeness, I will enumerate them all here: (1) incest is a separate and distinct tort which is not subject to any limitation period; (2) incest constitutes a breach of fiduciary duty by a parent and is not subject to any limitation period; (3) if a limitation period applies, the cause of action does not accrue until it is reasonably discoverable; (4) the appellant was of unsound mind pursuant to s. 47 of the Limitations Act; (5) the tort is continuous in nature and the limitation period does not begin to run until the plaintiff is no longer subjected to parental authority and conditioning; and (6) the equitable doctrine of fraudulent concealment operates to postpone the limitation period.
For the reasons that follow, I am of the view that this appeal should be allowed. Incest is both a tortious assault and a breach of fiduciary duty. The tort claim, although subject to limitations legislation, does not accrue until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant's acts and the nexus between those acts and her injuries. In this case, that discovery took place only when the appellant entered therapy, and the lawsuit was commenced promptly thereafter. The time for bringing a claim for breach of a fiduciary duty is not limited by statute in Ontario, and therefore stands along with the tort claim as a basis for recovery by the appellant. As for the other issues raised by the appellant, I am of the view that incest does not constitute a distinct tort, separate and apart from the intentional tort of assault and battery, and the continuous nature of the tort need not be decided in this case. Similarly, I do not find it necessary to deal with the question of whether the appellant was of unsound mind, although it seems to me that such a pejorative term is inappropriate in this context. Fraudulent concealment was not considered by the courts below, and the respondent argued that additional evidence might have been adduced had the issue been raised in those courts. As such, I make no finding on that issue, but I would not foreclose considering its availability for postponing limitation periods in other cases.
The intervener, LEAF, argued that the Limitations Act, in so far as its provisions bar incest claims, violates s. 15 of the Canadian Charter of Rights and Freedoms . It submits that the provisions bar claims of women in a disproportionate fashion and so constitutes discrimination on the basis of sex. Alternatively, it submits that the Limitations Act should be interpreted in a manner consistent with the Charter in effecting a liberal application of the limitations provisions as they affect incest victims. In view of the result I have arrived at, it is unnecessary to pursue these constitutional arguments.
Recovery in Tort
Incest and the Cause of Action
Incest is defined in the Criminal Code, R.S.C., 1985, c. C-46, s. 155 , as follows:
155. (1) Every one commits incest who, knowing that another person is by blood relationship his or her parent, child, brother, sister, grandparent or grandchild, as the case may be, has sexual intercourse with that person.
That definition narrowly prescribes the necessary degree of consanguinity and sexual conduct for the purposes of criminal liability. The civil action may well admit of a wider ambit of relationship and sexual activity. However, it is not necessary for the purposes of this case to stray outside of the criminal law definition, since both elements of consanguinity and sexual intercourse are present in this case.
There is no question, of course, that incest constitutes an assault and