DATE: 20001023

DOCKET: C33504

COURT OF APPEAL FOR ONTARIO

RE: S.M.J.M. (Plaintiff/ Appellant) and Jean Pierre Labelle, The Attorney General of Canada and Pest Guard Environmental Services (Defendants/Respondent)

BEFORE: AUSTIN, LASKIN and SIMMONS JJ.A.

COUNSEL: Patrick Brown

For the appellants

Elizabeth Richards

For the respondent

HEARD: October 13, 2000

On appeal from the judgment of Justice James Chadwick dated December 17, 1999 on motion for summary judgment

E N D O R S E M E N T

[1] This is an appeal from an Order of Chadwick J. dated December 17, 1999 in which he dismissed the Appellant’s action against the Attorney General of Canada following a motion for summary judgment. He found the action disclosed no genuine issue for trial against the Respondent in that the affidavits filed for the Appellant did not raise any allegations of negligence or misconduct as against the Respondent or its employees. He further found the action as against the Respondent had been commenced outside the relevant limitation periods.

[1] The appellant raised three issues on appeal:

• whether there is a genuine issue of fact concerning negligence on the part of the Respondent

• whether there is a genuine issue of fact re: discoverability concerning the operation of the relevant limitation periods, and

• if there is no genuine issue of fact re: discoverability, whether the motions judge applied the correct limitation period(s).

[2] The appeal must fail on the first issue alone.

[3] The only allegations of negligence raised by the Appellant are that an employee of the respondent, working as a placement officer at a student Manpower office in Cornwall during the summer of 1990, breached the policies of the Respondent in accepting a job posting from the co-defendants which specified the age (under 16) and gender (male) of the employment candidates they were seeking. The Appellant asserts these requirements ought to have raised “red flags” concerning potential child abuse and triggered closer monitoring by the Respondent of the co-defendants as potential employers.

[4] There is no dispute that the employees of the Respondent did not do the actual hiring for this or any position.

[5] There is no factual issue, which requires a trial. We find the allegations of the Appellant concerning the requirements of the co-defendants insufficient to trigger knowledge of an objectively unreasonable risk of harm against which the Respondent had a duty to protect.

[6] The motions judge stated the following concerning the discoverability issue:

The affidavits of the plaintiff do not explain or address the reason for an 8-year delay in issuing the claim in giving notice to the defendant Attorney General of Canada. There is no suggestion that this is a discoverability problem. Affidavits do address some counselling received by the plaintiff, however this does not address the reason for the delay in bringing the claim.

[7] Here, the appellant relies on:

• paragraph 11 of his affidavit:

I have begun therapy on instruction of my counsel and at this point I still have the view that I am partly responsible for what happened to me when I was out of town with Mr. Labelle.

• the following statement in M.(K.) v M.(H.) (1992), 1992 31 (SCC), 96 D.L.R. (4th) 289 (S.C.C.) at 306:

I am satisfied that the weight of scientific evidence establishes that in most cases the victim of incest only comes to an awareness of the connection between fault and damage when she realizes who is truly responsible for her childhood abuse. Presumptively, that awareness will materialize when she receives some form of therapeutic assistance, either professionally or in the general community.

[8] The facts remain, however, that the appellant reported the abuse to his mother in December 1990, the year in which it occurred; he reached the age of majority on July 24, 1994; and the action was commenced on December 18, 1998, prior to the appellant re-commencing counselling in a current effort to resolve feelings of partial responsibility. The appellant does not therefore fall within that class of plaintiffs who become aware of their cause of action only with the benefit of therapy. As noted by the motions judge, the appellant has not explained the reason for his delay in commencing the action, once he reached the age of majority. A responding party “may not rest on the mere allegations or denials of the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue for trial”: R. 20.04(1).

[9] The Appellant’s claims for negligence and assault and battery are statute barred by virtue of section 32 of the Crown Liability and Proceedings Act, R.S.C. 1985, c. P-38 and section 7(1) of the Public Authorities Protections Act, R.S.O. 1990, c. P-38 since they were not commenced within six months after the cause of action arose and since the employees of the Respondent were acting within the scope of their public duties in referring the Appellant to the co-defendants for an employment interview.

[10] The appeal is dismissed with costs.

“Austin, J.A.”

“Janet Simmons J.A.”

LASKIN J.A. (dissenting):

[11] In my view, the motions judge erred in granting summary judgment dismissing the claim.

[12] The motions judge concluded that the material did not raise a genuine issue for trial whether the respondent was negligent. I disagree. The employer requested young, teenaged boys between ages 13-15. This request contravened the respondent’s own policy against any employer specifying either age or gender qualifications for a job position. I agree with the appellant that the request should have alerted the respondent to make further inquiries of the employer before referring applicants to him. On the material, therefore, I think a genuine issue arises whether the respondent was negligent.

[13] The motions judge also concluded that the appellant’s claim was statute-barred. Even assuming that the six-month limitation period in the Public Authorities Protection Act governs, in my view, whether the application of the discoverability principle delayed the running of the limitation period to less than six months before the claim was issued raises a triable issue.

[14] The language of La Forest J. in M.(K.) v. M.(H.) (1992), 1992 31 (SCC), 96 D.L.R. (4th) 289 (S.C.C.) about when a cause of action arises in cases of childhood abuse is very broad. At p. 312, La Forest J. held “that an awareness of wrongdoing is a prerequisite to accrual of the action under the delayed discovery rule.” A cause of action will not arise until “the victim becomes fully cognizant of who bears the responsibility for her childhood abuse, for it is then that she realizes the nature of the wrong done to her.” In M.(K.) v. M.(H.) itself, the victim had made some earlier disclosures of the incest but, in the view of the Supreme Court of Canada, these earlier disclosures did not trigger the running of the limitation period.

[15] In the case before us, the appellant was only 13 when he was abused. Although he disclosed the abuse to his mother soon after it occurred and even sought counselling from a Family Counselling Centre, the appellant gave evidence that he nonetheless continued to feel responsibility for what had occurred to him. Therefore, although the appellant’s evidence is not a cogent as it might have been, I think it is sufficient to raise a genuine issue for trial on discoverability within the principles in M.(K.) v. M.(H.).

[16] For these reasons, I would allow the appeal, set aside the judgment of the motions judge and dismiss the motion for summary judgment. I would award the appellant his costs of the motion and of the appeal.

“John Laskin J.A.”