Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned the limitations period for cases of childhood sexual assault – meaning at what point in time were survivors of childhood sexual assault no longer able to sue those responsible for their abuse.
LEAF intervened before the Supreme Court of Canada.
K.M.’s father, H.M., sexually abused and assaulted her while she was growing up. When she was 28 years old and after she had gone to therapy in relation to the abuse, K.M. sued H.M. for damages arising from the abuse and for breaching a parent’s fiduciary duty (legal obligation to their child). A jury awarded her $50,000 but the trial judge held that the limitations period meant that K.M. could not sue her father – in essence, she had waited too long to sue him. The Ontario Court of Appeal dismissed K.M.’s appeal. K.M. appealed to the Supreme Court of Canada.
LEAF argued that childhood sexual assault was an equality issue which predominantly victimized girls, and stemmed from the sexual objectification and dehumanization of women. This, along with the targeting of children, made it discrimination based on sex and age.
Limitations periods needed to be interpreted in light of equality rights under the Charter, and take into account the lived realities of women and girls. Applying limitation periods rigidly contributed to thesilencing of survivors of sexual violence and subjected children to further victimization. In the case of childhood sexual assault, survivors should not be expected to commence a lawsuit until:
- Their injuries had substantially become apparent;
- They appreciated that the conduct of the perpetrator was wrong;
- They connected the wrongdoing with the injuries they had suffered; and
- In the circumstances, it would be reasonable for them to do so.
The Court allowed K.M.’s appeal. It held that survivors of childhood sexual assault should not be expected to commence a lawsuit until they were reasonably capable of discovering that the perpetrator’s acts were wrongful, and that those acts were connected to the injuries they had suffered. In this case, K.M. did not realize the link between the abuse and the injuries she had suffered until she went to therapy. As a result, the limitations period had not expired when K.M. filed her action, and so she was entitled to the damages awarded by the jury.
LEAF is grateful to Elizabeth McIntyre and Nicole Tellier, counsel in this case.
Download the factum here.
Read the Supreme Court of Canada’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].