BC Bullying Law – Unique Issues With Limitation Periods

A little appreciated fact are the broad timeframes at play when certain individuals can sue their abusers for either sexual or physical abuse.

For many years BC has had no limitation period for claims relating to sexual assault.  Whether the victim is a minor or an adult a lawsuit can be brought at any time against their sexual assailant. In cases without actual sexual assault but that amount to “misconduct of a sexual nature” there also is no limitation period if the victim was a minor at the time of the misconduct.

But what about cases of physical assault with no sexual nature?  Historically these were subject to the limits set out in BC’s Limitation Act.  However, in 2013 changes to the Act came into force which removed limitation periods for certain victims of non sexual abuse.

Section 3(1)(k) came into force and removed limitations for lawsuits based on

(k)a claim relating to assault or battery, whether or not the claimant’s right to bring the court proceeding was at any time governed by a limitation period, if the assault or battery occurred while the claimant

(i)was a minor, or

(ii)was living in an intimate and personal relationship with, or was in a relationship of financial, emotional, physical or other dependency with, a person who performed, contributed to, consented to or acquiesced in the assault or battery;

The broad section gives the right for children to sue their abusers at any time.  It also expands this right to those in financially, emotionally or physically dependent relationships with their abusers.

Assault and battery are legally simple concepts.  Battery simply refers to the unwanted application of intentional force.  Assault is the threat of the application of such force.  Anyone perpetrating these wrongs to vulnerable victims can be pursued at any time to be made accountable for their wrongdoing.  This expanded limitation period was discussed in a case published earlier this year by the BC Supreme Court.

In Khan v. School District No. 39 the Plaintiff sued for various historic allegations of harm.  In discussing those that were and were not statute barred Mr. Justice Majawa provided the following comments on the current state of the Limitation Act:

[10]         British Columbia’s Limitation Act underwent significant amendments that came into force in June 2013. Amendments relevant to this action removed the time limitations for civil claims for damages arising out of an assault or battery against a minor. Thus, pursuant to s. 3(1)(k) of the Limitation Act, Ms. Khan is clearly not statute-barred from bringing her actions grounded in assault or battery against Ms. Wong, or against the School District in vicarious liability. Nonetheless, it is not so clear that all of the conduct that Ms. Khan complains of is exempted from the limitation periods set out in the Limitation Act.

[11]         Ms. Khan alleges that she suffered physical, verbal, and emotional abuse at the hands of Ms. Wong. In relation to the verbal and emotional abuse, Ms. Khan argues that allegations of conduct that amount to the torts of wrongful imprisonment, and the intentional infliction of nervous shock, are also not statute-barred. I understand her argument to be that this is because the same person, Ms. Wong, is alleged to have been the perpetrator of the conduct and in those circumstances the court should not draw too fine a distinction between conduct that is statute-barred and conduct that is not.

[12]         Ms. Khan’s counsel draws an analogy to cases that pre-date the 2013 amendments to the Limitation Act. Those cases describe the circumstances in existence between 1996 and 2013 where civil claims for damages arising out of the sexual assault of a minor were exempt from the limitation period but civil claims of assault and battery were not exempt. In cases such as B.G. v. HMTQ, 2003 BCSC 1890 [B.G.], this Court held that where the physical and sexual abuse was inflicted at the hands of the same individual, the claims of physical abuse should not be statute-barred, so long as the sexual abuse was established and the two were sufficiently inter-related. The Court cautioned against attempting to make too fine a distinction between the two torts for limitation purposes.

[13]         While I agree that the law as stated in B.G. could equally apply to exempt certain claims for intentional infliction of nervous shock and wrongful imprisonment from the Limitation Act when coupled with physical or sexual abuse claims in certain narrow circumstances, I agree with the defendants that in order to do so, those torts must, at least, be properly pled by the plaintiff. This is necessary so that the defendants know the case they have to meet. Ms. Khan has not pled any torts other than assault and battery. It is too late to raise for the first time at closing submissions that the defendants can also be liable for the torts of intentional infliction of nervous shock and wrongful imprisonment.

[14]         While many of the alleged incidents contained elements of concurrent physical, verbal, and emotional abuse, Ms. Khan also described some incidents where there was no physical abuse. For example, she testified that later in her elementary school years, Ms. Wong verbally berated and harassed her by calling her names such as “stupid” and “retarded” as well as threatened to “take her away from her family” at some unspecified time in the future if she told anyone about the abuse. However, she did not physically hit her on these occasions. These incidents were alleged to have occurred as much as five years after the physical abuse stopped.

[15]         To be exempt from the Limitation Act, this conduct must be integrally linked to the physical assaults (B.G. at para. 61–62). As unacceptable as it would be for a teacher to engage in such conduct with a student, this particular conduct alleged by Ms. Khan is not integrally linked to the alleged physical abuse (that allegedly occurred many years before), such that the conduct would be exempt from the limitation period. Thus, while continued behaviour of this nature may arguably give rise to an action founded on the tort of the intentional infliction of nervous shock, such an action would be subject to the Limitation Act, and in the circumstances of this case, long since statute-barred. In any event, the cause of action was not pled.

[16]          As a result of the foregoing, my consideration of Ms. Khan’s allegations is limited to incidents that could properly give rise to the torts of assault and battery. This has little impact on Ms. Khan’s case because the more serious incidents of abuse allegedly included verbal and emotional abuse along with allegations of physical abuse.