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Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting the important benefits of BC’s open ended limitation period for victims of sexual abuse.
In this week’s case (Lakes v. MacDougall) the Defendant worked as a correctional guard in BC’s prison system for over 20 years.  During this time he sexually abused a number of convicts.  He was criminally convicted for these deeds.  He was also successfully sued by some of his victims.
The Plaintiff, an alleged victim of this abuse, sued the Defendant and the Province of BC alleging the Province was vicariously liable for the abuse.  He proposed to make his lawsuit a class action on behalf of all of the Defendant’s victims.  The Province of BC agreed that a class action was appropraite.  The Plaintiff and the Province asked the Court to certify a class action and further to approve a settlement process which would permit the victims to seek compensation by way of private arbitration.
One of the Defendant’s alleged victims opposed class action certification.  This individual argued that the proposed settlement method would impose a de facto limitation period for the victims where one otherwise would not exist.  Mr. Justice Grauer agreed and refused to certify the action unless this issue could be addressed.  In doing so the Court provided the following helpful reasons:
[14] The objections can be succinctly stated.  By definition, members of the proposed class are persons who have spent time in jail from a relatively young age, have developed drug and alcohol problems, have damaged senses of masculinity, and have maintained their silence for years.  Mr. Lakes has deposed that the sexual abuse he endured caused him a great deal of humiliation and embarrassment that prevented him from coming forward with the information until August 13, 2010, some 30 years after the events occurred.  Precisely because of such problems, the Limitation Act, R.S.B.C. 1979, c. 266, provides in s. 3(4)(l) that causes of action based on sexual assault are not governed by a limitation period and may be brought at any time.  Yet the certification of this action and approval of the settlement will deny the benefit of this provision to members of the class who have not yet come to a place where they are capable of disclosure.  Instead, their claims will become effectively barred by the expiry of the claims period.  This is particularly troublesome, it is suggested, because this population is not one known for reading newspapers, where notices of the settlement are to be published…

[22] As I see it, the question is whether the loss of that benefit in this particular case is appropriately balanced by the gains offered by certification and approval of the settlement.

[23] I have concluded that, in the circumstances before me, it is not, and accordingly this requirement has not been met.  The advantage to potential members of the class of the resolution of the single common issue, together with the efficiencies of the process, do not match the loss to this particularly vulnerable group that will arise from the imposition of a six-month claims period.  I do not say that such a balance cannot be achieved in relation to MacDougall’s victims.  I say only that it has not been achieved.  If the process were structured differently to allow for a significantly longer claims period and improved notification procedures, I might well take a different view.  I do not, of course, have the authority to alter the terms of the proposed settlement…

[24] In these circumstances, I exercise my discretion under s. 5(6) of the Class Proceeding Act, and direct that the plaintiff’s applications be adjourned to permit the parties to engage in further negotiations and amend their materials if they choose to do so.

bc injury law, Lakes v. MacDougall, Mr. Justice Grauer

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