Improving the Potential of Tort Law for Redressing Historical Abuse Claims: The Need for a Contextualized Approach to the Limitation Defence
Date
2010-01-01
Authors
Adjin-Tettey, Elizabeth
Kodar, Freya
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Publisher
University of Ottawa
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 contextualised 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 minimise 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 sterilisation-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 contextualised 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.
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Citation
Adjin-Tettey & Freya Kodar, “Improving the Potential of Tort Law for Redressing Historical Abuse Claims: The Need for a Contextualized Approach to the Limitation Defence” (2010) 42:1 Ottawa L Rev 95.