Alberta School For The Deaf – WP v Alberta, 2014 ABCA 404

April 7, 2015 8:58 pm Published by

Case Name:

W.P. v. Alberta

Between

W.P., M.P. and E.P., Appellants/Cross-Respondents

(Plaintiffs), and

Her Majesty the Queen In Right of Alberta

and Attorney General of Alberta,

Respondents/Cross-Appellants (Defendants)

And between

W.P., M.P. and E.P., Appellants (Plaintiffs), and

Her Majesty the Queen In Right of Alberta

and Attorney General of Alberta,

Respondents (Defendants)

 

[2014] A.J. No. 1320

2014 ABCA 404

62 C.P.C. (7th) 111

378 D.L.R. (4th) 629

7 Alta. L.R. (6th) 319

247 A.C.W.S. (3d) 278

2014 CarswellAlta 2152

Dockets: 1303-0189-AC, 1303-0190-AC

Registry: Edmonton

 

Alberta Court of Appeal

P.T. Costigan, J. Watson and R.S. Brown JJ.A.

Heard: November 25, 2014.

Judgment: November 28, 2014.

 

(43 paras.)

 

Civil litigation — Limitation of actions — Extension, interruption, suspension and inapplicability — Disability — Concealment — Appeal by plaintiffs from decision granting respondent summary judgment dismissing their action on ground that ultimate 10-year limitation period had expired dismissed — Appellants commenced proposed class action for abuse suffered while at a residential school for the deaf — Judge entitled to consider summary judgment application before ruling on certification motion — Appellants had not established that limitation period was suspended by disability or fraudulent concealment — While they might not have known until later that they could sue, that was not the same thing as having fact of wrongful conduct and its effects deliberately concealed from them.

Appeal by the plaintiffs from a decision of a chambers judge granting the respondent summary judgment dismissing their action on the ground that the ultimate 10-year limitation period had expired. The appellants were at various times resident students at the Alberta School for the Deaf. They alleged physical, sexual and emotional abuse by its teachers, staff and other students which they experienced between 1960 and 1991. When the appellants applied for certification of the action as a class proceeding the proposed class being individuals who attended the School between 1955 and 1996, Alberta cross-applied for summary judgment. The chambers judge, who was also case manager, had determined at a prior case management meeting that both applications would be heard on the same day. He then first decided the summary judgment application. In granting summary judgment, the chambers judge concluded that the appellants had not made out a prima facie case that the limitation period was suspended due to fraudulent concealment or disability. The appellants argued that the chambers judge should have deferred hearing and deciding on Alberta’s summary judgment application until deciding on certification. They also argued that summary judgment should not have been granted at all, since whether the ultimate limitation period applied here was a triable issue.

HELD: Appeal dismissed. It was not unreasonable for the judge to exercise his discretion by hearing and deciding the summary judgment application before deciding on the certification application. The Class Proceedings Act did not preclude a judge from exercising his discretion to hear and decide a summary judgment application prior to certification on the basis that it was an efficient and cost-effective way of disposing of an issue that might bring an end to the litigation altogether. The mere fact that a claim was advanced by way of a class proceeding did not endow it with special status allowing it to survive where the same claim would otherwise be doomed. Summary judgment was appropriate on the evidence before the chambers judge. The appellants had not established that whether the operation of the limitation period was suspended was an issue of merit that genuinely required a trial. There was no evidence that any of them were laboring under a misapprehension of the fact of having suffered an injury or a misapprehension of fact caused by fraudulent concealment. While they might not have known until later that they could sue, that was not the same thing as having the fact of the wrongful conduct and its effects deliberately concealed from them. Nor did being told at the time not to discuss the abuse support an allegation of fraudulent concealment of the fact of the injury. The issue of fraudulent concealment was insufficiently meritorious to require a trial. The ultimate limitation period was also not suspended on the ground that the appellants were persons under disability. While each of them had encountered difficulties in life, they did not show how such difficulties rendered them unable to make reasonable judgments in respect of their claims.

Even the facts alleged by the appellant EP with respect to her time spent in psychiatric hospital care, which might form part of an account of a disability which suspended the operation of the ultimate limitation period, was on its own insufficient to show that the issue had merit.

Statutes, Regulations and Rules Cited:

Class Proceedings Act, SA 2003, c. C-16.5, s. 2(1)

Limitations Act, RSA 2000, c L-12, s. 3(1)(b), s. 3(3)(b), s. 4, s. 4(2), s. 5, s. 5(2)

Rules of Court, Rule 7.3

Appeal From:

On appeal from the Order by the Honourable Associate Chief Justice J.D. Rooke Dated the 23rd day of May, 2013, Filed on the 25th day of September, 2013 (2013 ABQB 295, 2013 ABQB 296; Docket: 0803 03417).

Counsel:

E.F.A. Merchant, Q.C., for the Appellants.

G.A. Meikle, Q.C. and W.K. Branch, for the Respondents.

Memorandum of Judgment

  • The following judgment was delivered by
  • THE COURT:–

I.  Introduction

1     The appellants WP, MP and EP appeal from two decisions of a chambers judge. The first (2013 ABQB 295) granted the respondents Her Majesty the Queen in Right of Alberta and the Attorney General of Alberta (collectively, “Alberta”) summary judgment dismissing the appellants’ action as having been brought out of time. Specifically, the chambers judge concluded that the appellants had not sued within the “ultimate” limitation period set out in section 3(1)(b) of the Limitations Act, RSA 2000, c L-12 [the “Act“] — that is, within ten years of their claim having arisen. The second decision (2013 ABQB 296), which the chambers judge rendered “provisionally, in the event the summary judgment decision [were to be reversed on appeal]”, explained why (but for the limitations bar) he would have certified the appellants’ action under the Class Proceedings Act, SA 2003, c C-16.5 [CPA], with certain modifications to the proposed class definition. While the appellants were actually “successful” on the certification point, their appeal of that decision is grounded on the chambers judge’s refusal to certify by reason of his conclusion on Alberta’s application for summary judgment.

2     Alberta cross-appeals from the provisional decision to certify the appellants’ action as a class proceeding.

3     At the time he decided the certification application, the appellants’ action stood as dismissed. The certification application therefore becomes a live issue should we allow the appeal from the chambers judge’s decision to grant Alberta summary judgment. After hearing oral argument on behalf of the appellants, however, we dismissed the appeal from the summary judgment decision, with reasons to follow. These are our reasons.

II.  Background and the Decision Below

4     Each of the appellants were at various times resident students at the Alberta School for the Deaf, in Edmonton (the “School”).1 They allege physical, sexual and emotional abuse by its teachers, staff and other students, which they say was caused by Alberta’s negligence (or that of its servants for whom it is vicariously liable), breach of trust and breach of fiduciary duty. Alberta denies liability and, in the alternative, pleads (among other things) section 3(1)(b) of the Act. As to when the abuse is said to have occurred, WP identifies instances occurring between 1972 and 1977; MP describes events that would have occurred during the early and mid- 1960s, and another that would have occurred before 1970; while EP’s accounts cover approximately the entire length of her residency at the School (from 1980 to 1991).

5     When the appellants applied for certification of the action as a class proceeding (the proposed class being “all individuals who attended [the School] between 1955 and 1996”), Alberta cross-applied for summary judgment. The chambers judge, who is also case manager, had determined at a prior case management meeting that both applications would be heard on the same day. He then pronounced first on summary judgment.

6     In support of its summary judgment application, Alberta submitted that the appellants had commenced their action after expiry of the ultimate limitation period in section 3(1)(b) of the Act. Section 3(1), in its entirety, states:

  • Subject to section 11, if a claimant does not seek a remedial order within
  • 2 years after the date on which the claimant first knew, or in the circumstances ought to have known,
  • that the injury for which the claimant seeks a remedial order had occurred,
  • that the injury was attributable to conduct of the defendant, and
  • that the injury, assuming liability on the part of the defendant, warrants bringing a proceeding,
  • or
  • 10 years after the claim arose,
  • whichever period expires first, the defendant, on pleading this Act as a defence, is entitled to immunity from liability in respect of the claim.

7     Before the chambers judge, the appellants argued that the ultimate limitation period was suspended by, first of all, operation of section 4 of the Act, which states:  (1)  The operation of the limitation period provided by section 3(1)(b) is suspended during any period of time that the defendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred.

  • Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1)(b) was suspended.

8     The alleged fraud was said to amount to teachers and staff instructing students not to tell anyone about the alleged abuse, taking inadequate action when they learned about the abuse, and providing inadequate education such that the deaf students could neither properly communicate during and after their time at the School nor recognize the alleged abuse as such and pursue civil recourse. The chambers judge held that the evidence was insufficient to show fraudulent concealment, since each of the plaintiffs knew of the alleged conduct and of their injuries. He chambers judge accepted that some of the alleged conduct of Alberta could constitute fraud “in the very broad” sense which that term bears in this context. He also accepted that the alleged directions by staff to the appellants could have concealed “the material facts of injury”. He also found, however, that the appellants’ evidence did not support the conclusion that the “material facts of injury” were concealed from them. To the contrary, their evidence was that they knew they had suffered injury from the alleged abuse and that the alleged abuse was wrong.

9     The chambers judge noted the appellants’ evidence that they did not know that they had a right to sue. He said that was insufficient to suspend the running of the limitation period, since the impugned conduct must conceal the fact of the injury, as opposed to conceal or fail to reveal the existence of a cause of action. He also observed that the appellants had provided no evidence of the period of time during which they allege Alberta fraudulently concealed from them the fact of their injury. This mattered, since more than 17 years had passed since the last alleged wrongful act; even if injuries had been fraudulently concealed, at some point (given the existence of the lawsuit) that must have come to an end, raising the question of whether ten years had passed since that point.

10     The appellants also argued before the chambers judge that the ultimate limitation period had been suspended for an unspecified period of time by operation of section 5 of the Act, which provides:

 (1)  The operation of the limitation period provided by section 3(1)(b) is suspended during any period of time that the defendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred.

 (2)  Under this section, the claimant has the burden of proving that the operation of the limitation period provided by section 3(1)(b) was suspended.

11     The chambers judge was not satisfied, however, that any of the appellants fell within the statutory definition of a “person under disability”, since they were not represented adults (as defined in the Adult Guardianship and Trusteeship Act, SA 2008, c A-4.2), persons in respect of whom a certificate of incapacity is in effect (under the Public Trustee Act, SA 2004, c P-44.1), or adults who were unable to make reasonable judgments in respect of matters relating to their claim.

12     The chambers judge consequently granted Alberta summary judgment, dismissing the appellants’ action. We note the appellants’ submission that he did so on a “class wide” basis, which we take to mean that the dismissal extends to all other putative class members. The chambers judge did not do this, nor could he have, since other putative class members were not plaintiffs to this action. Rather, the chambers judge ordered the appellants to “immediately give notice to all potential class members of their rights flowing from s 40 of the [CPA]” — the presupposition being that the limitation period, which had been suspended for potential class members during the life of the appellants’ action, would now resume running (and that potential class members ought to know this).

13     As we have already recounted, in separate written reasons issued contemporaneously with his summary judgment decision, the chambers judge said that, were his decision on summary judgment overturned on appeal, he would certify the action as a class proceeding with some modifications. It is unnecessary to set out those reasons in greater detail or to comment on them because, for the reasons which follow, we dismiss the appeal from the summary judgment decision.

III. Grounds of Appeal

14     The appellants phrased their grounds of appeal from the chambers judge’s decision on summary judgment as follows:

  1. “granting the summary judgment application in inappropriate circumstances, notwithstanding unresolved discoverability and limitations tolling issues that would be best determined on a full factual record, after the common issues trial or, at a minimum, after discovery and questioning”;
  2. “making determinations in the context of the summary judgment application which are essentially questions to be determined on an application for certification”; and
  3. “ordering the proposed representative plaintiffs to provide notice of the disposition of this application pursuant to the Class Proceedings Act notwithstanding that they were never appointed representatives of the class”.

IV.  Standard of Review

15     The first ground of appeal impugns, inter alia, the chambers judge’s decision as the case manager to hear and decide the summary judgment application prior to deciding on certification. The standard of review for that exercise of discretion is highly deferential. Appellate intervention is warranted only if the judge has clearly misdirected himself or herself on the facts or the law, proceeded arbitrarily, or if the decision is so clearly wrong as to amount to an injustice: Balogun v Pandher, 2010 ABCA 40 at para 7, 474 AR 258.

16     Under the first ground of appeal, the appellants also challenge the chambers judge’s decision, on these facts, to grant summary judgment. On this point, the chambers judge’s assessment of the facts, his application of the law to those facts, and the ultimate determination on whether summary dismissal is appropriate are entitled to deference absent palpable and overriding error: Hryniak v Mauldin, 2014 SCC 7 at paras 81-84, [2014] 1 SCR 87 [Hryniak]; Windsor v Canadian Pacific Railway Ltd, 2014 ABCA 108 at para 10, 572 AR 317 [Windsor].

17     The second ground is to the effect that the chambers judge erred in principle by accounting for and applying considerations pertinent to a certification proceeding under the CPA to an application for summary judgment. This alleges error in law, and so this aspect of the chambers judge’s decision is reviewable for correctness: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235 at paras 36-37. The chambers judge’s decision to direct the appellants to notify potential class members of the disposition of this matter is also reviewable for correctness.

VAnalysis

 A.  The First Ground: Summary Judgment

18     As already noted, this ground has — as the appellants have framed it — two aspects. They say, first, that the chambers judge should have deferred hearing and deciding on Alberta’s summary judgment application until deciding on certification. And, secondly, they argue that summary judgment should not have been granted at all, since whether the ultimate limitation period applied here was a “triable issue”.

19     The appellants assert (but really do not argue) that this sequencing of dispositions is preferable. Indeed, they say that the jurisprudence shows that limitations issues are “overwhelmingly” decided by a full trial, rather than by summary judgment. Yet, the briefest review of the case law demonstrates that this is not so. Subject to the Rules of Court (which, by operation of section 41 of the CPA, apply to class proceedings), and to a court exercising its case management discretion to direct otherwise, a party defending against an action may apply at any time for summary judgment. Usually, an application for certification will be heard first: Hoffman v Monsanto Canada Inc, 2002 SKCA 120 at paras 28-29, 220 DLR (4th) 542; Kwicksutaeineuk/Ah-Kwa-Mish First Nation v British Columbia (Agriculture and Lands), 2009 BCSC 1593 at paras 59-62, 84 CPC (6th) 170. This is principally the effect of the short timeframe contemplated by the CPA for obtaining certification of a class proceeding.2

20     The appellants say that this timeframe amounts to a statutory “direction” that all other matters are to be held in abeyance pending certification. This is incorrect. Proceeding with a certification application first is “primarily a matter of convenience rather than necessity”: Kowch v Gibraltar Mortgage Ltd, 2013 ABQB 317 at para 10, 536 AR 112 (Master in Chambers). The CPA does not preclude a judge from exercising his or her discretion to hear and decide a summary judgment application prior to certification on the basis that it is an efficient and cost-effective way of disposing of an issue that might bring an end to the litigation altogether. It does not matter whether the purportedly unmeritorious claim is sought to be advanced as a class proceeding or not. Trying unmeritorious claims is per se unreasonable, because it imposes an unnecessary and often onerous burden upon parties and our system of civil justice: Hryniak at paras 23-28; Canada v Lameman, 2008 SCC 14 at para 10, [2008] 1 SCR 372; Windsor at para 13; Beier v Proper Cat Construction Ltd, 2013 ABQB 351 at paras 56-71, 564 AR 557 [Beier]; Orr v Fort McKay First Nation, 2014 ABQB 111 at paras 24-26.

21     Simply put, a class proceeding is just one procedural mode of advancing a claim. The mere fact that a claim is advanced by way of a class proceeding does not endow it with special status allowing it to survive where the same claim would otherwise be doomed. More particularly, it remains subject to all the tools furnished by Part 7 of the Rules of Court for resolving claims without a full trial, including summary judgment. As the Supreme Court observed in Bisaillon v Concordia University, 2006 SCC 19 at para 17, [2006] 1 SCR 666, “[t]he class action is … a procedural vehicle whose use neither modifies nor creates substantive rights[.] … It cannot serve as a basis for legal proceedings if the various claims it covers, taken individually, would not do so[.]” (See also Stevenson Estate v Bank of Montreal, 2011 SKCA 51 at para 12, 371 Sask R 198; Thorpe v Honda Canada Inc, 2011 SKQB 72 at para 29, 373 Sask R 71; and Thorpe v Honda Canada Inc, 2009 SKQB 488 at para 14, 357 Sask R 1.)

22     The foregoing applies with equal force where the summary judgment application is based upon the expiry of a limitation period relative to the claim of a proposed representative plaintiff: Stone v Wellington County Board of Education, 1999 CanLII 1886 (ONCA) at para 10, [1999] OJ No 1298 (QL) [Stone]. Where a proposed representative plaintiff’s claim is shown to be time-barred, there is no good reason for permitting the issue of certification to continue consuming judicial and litigants’ resources. Indeed, there is good reason for not doing so, since the representative plaintiff must be a member of the class: Section 2(1) of the CPA.3 Allowing a representative plaintiff’s clearly time-barred claim to proceed further would defy the Legislature’s intent that the class proceeding be brought only by someone with a personal stake in the outcome: Stone at paras 9-10; Hughes v Sunbeam Corp (Canada) Ltd (2002), 61 OR (3d) 433, 165 OAC 68 at para 15, leave to appeal refused [2002] SCCA No 446 (QL).

23     While the chambers judge in this case actually expended the time needed to hear and provisionally decide the certification application after having heard the summary judgment application, concerns about costs to litigants and to the civil justice system nonetheless arise here given the appellants’ argument that limitations should have been determined by a full trial. Further, the chambers judge’s decision as case manager to order the applications as he did is entitled to substantial deference. That decision was not appealed. And, in any event, it was not unreasonable for him to exercise his discretion by hearing and deciding on Alberta’s summary judgment application before deciding on the appellant’s certification application.

24     This leaves the question of whether his decision to grant summary judgment was appropriate on the evidence before him.

25     We note at the outset that the chambers judge, and the parties, applied the traditional test for granting summary judgment, being whether the evidence disclosed a triable issue. Following the adoption of Rule 7.3 of the Rules of Court, which permits a party to apply for summary judgment on (inter alia) the ground that there is no merit to a claim, this Court clearly rejected the threshold of “triable issue” or “a genuine issue for trial” in favour of a merit-based test:

  • New R. 7.3 calls for a more holistic analysis of whether the claim has “merit”, and is not confined to the test of “a genuine issue for trial” found in the previous rules. Since one of the objectives of class proceedings is to provide affordable access to justice, these principles relating to summary judgment are applicable to the class procedure as well.
  • (Windsor at para 14).
  • Rule 7.3 of the new Alberta Rules of Court allows a court to grant summary judgment to a moving party if the nonmoving party’s position is without merit. A party’s position is without merit if the facts and law make the moving party’s position unassailable and entitle it to the relief it seeks. A party’s position is unassailable if it is so compelling that the likelihood of success is very high.
  • (Access Mortgage Corporation (2004) Limited v Arres Capital Inc, 2014 ABCA 280 at para 45, [2014] A.J. No. 1032 (QL) [Access Mortgage], citing Beier at para 61.)

26     Summary judgment is therefore no longer to be denied solely on the basis that the evidence discloses a triable issue. The question is whether there is in fact any issue of “merit” that genuinely requires a trial, or conversely whether the claim or defence is so compelling that the likelihood it will succeed is very high such that it should be determined summarily: Windsor at para 16; Beier at paras 56, 59-68 and 70.

27     The chambers judge’s decision on summary judgment was delivered before Windsor and Access Mortgage. We therefore consider afresh whether the evidence presented any issue of merit which was so compelling that it genuinely required a trial.

28     As noted, Alberta’s application is based upon the “ultimate” limitation period stated in section 3(1)(b) of the Act. It provides that, if a claimant does not seek a remedial order within ten years after the claim arose, the defendant is entitled to immunity from liability in respect of that claim. Section 3(3)(b) further provides that, for the purposes of the ultimate limitation period, “a claim based on breach of a duty arises when the conduct, act or omission occurs”. As this Court said in Bowes v Edmonton (City of), 2007 ABCA 347 at para 151, 425 AR 123:

  • [Section 3(3)(b)] is plain. It says that the time under the alternative absolute period starts to run from the negligent or wrongful act or omission itself. Therefore, one should not wait until the harm occurs. Where the Legislature adopts a specific event to start time running, that displaces the former discoverability rule: Ryan v Moore, 2005 SCC 38, [2005] SCR 53, 334 NR 355 (para 27).

29     In other words, the ultimate limitation period tolls without regard to when the alleged harm occurred, or when the fact of its occurrence was discovered or even discoverable. Rather, it begins to run merely upon the occurrence of the breach of the duty — in this case, upon the occurrence of the alleged abuse. This is not only the plain effect of the statutory language, but was its anticipated and intended effect: Limitations, Alberta Law Reform Institute Report No 55, December 1989 at 70-71, 425 AR 123.

30     The Legislature also provided, however, that operation of the ultimate limitation period — which otherwise would undoubtedly bar the appellants’ action — is suspended in two circumstances. Section 4 of the Act provides that it is suspended during any period of time that the defendant fraudulently conceals the fact that the injury for which a remedial order is sought has occurred. And, section 5 provides that it is suspended during any period of time that the claimant is a “person under disability” — which is defined in section 1(h) as either a represented adult as defined in the Adult Guardianship and Trusteeship Act or a person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act, or an adult who is unable to make reasonable judgments in respect of matters relating to a claim.

31     The burden of proving either of these bases for suspending the ultimate limitation period rests with the claimant: sections 4(2) and 5(2).

32     The evidence before us relevant to both grounds for suspension of the ultimate limitation period are as follows:

 (1)   WP, who was born in 1962, deposes to physical abuse that occurred, at the latest, in 1982 when he left the School, which caused emotional problems. While he thought at the time that the abuse was “unfair”, he did not know until 2005 that it could be the subject of a civil suit, and had not understood the difference between a civil suit and a criminal prosecution;

 (2)   MP, who was born in 1953, deposes to physical and sexual abuse that occurred, at the latest, in 1972 when she left the School, and to ongoing injuries requiring counselling, hospitalization and rehabilitation. She has been unemployed since February 1990 when she was diagnosed with schizophrenia, for which she continues to receive medication and counselling. She knew the abuse was wrong at the time, and even contemplated suing in 1997 when she heard about the Jericho Hill litigation in British Columbia. While at the School, she was told by houseparents not to discuss the abuse;

 (3)   EP, who was born in 1975, deposes to physical, emotional and sexual abuse that occurred, at the latest, in 1991 when she left the School. At the time, she was afraid to report it, and believed that nothing would happen if she did, although she had no reason to believe that staff was aware of the abuse. She has been unemployed since 2001 or 2002, had a drug and alcohol problem until the time she was 29 or 30, has spent time in psychiatric hospital care and continues to suffer from multiple health problems, including depression. She knew the abuse was wrong by the time she was 19, and sought assistance from a sexual assault centre when she was 23; and

(4)   Dr William J Koch, a registered psychologist, deposes that deaf persons suffer from higher rates of mental health problems (including post-traumatic stress disorder and depression) than the general population, that deaf children are at a higher risk than non-hearing impaired children of developing mental health problems following trauma such as sexual abuse, and that a child’s deafness impairs their ability to deal with abuse, seek help, and function. He also deposes to difficulties deaf persons have in communicating with lawyers. He does not however depose to any such difficulties having been experienced by the appellants, or to any inability on their part to form reasonable judgments respecting their claims. He agreed under cross-examination that individuals suffering from depression or post-traumatic stress disorder are capable of managing their own affairs, and that emotional disorders rarely impair a person’s ability to manage his or her own affairs.

33     Both parties rely on Ambrozic v Burcevski, 2008 ABCA 194, 433 AR 25 [Ambrozic], in which this Court (at para 21) held that a party seeking to establish that fraudulent concealment suspends a limitation period must show that (1) the defendant perpetrated some kind of fraud; (2) the fraud concealed a material fact; and (3) the defendant exercised reasonable diligence to discover the fraud. Ambrozic relied on Huet v Lynch, 2000 ABCA 97, 255 AR 359 [Huet] — a decision made under the predecessor to the Act, the Limitation of Actions Act, RSA 1980, c L-15, section 57 of which provided that fraudulent concealment was concealment of a cause of action: see Huet at para

25.   This is no longer the case under the Act: section 4(1) refers to fraudulent concealment of “the fact that the injury … has occurred.” This is a substantive legislative change: concealment of the right to claim for an injury is not the same thing as concealment of the fact of an injury. The former goes to discoverability which, as already explained, does not affect the operation of the ultimate limitation period. Further, “injury” is defined by section 1(e) to include not only positive personal injury, property damage or economic loss, but also non-performance of an obligation or the breach of a duty — which, taken together, cover all the allegations of fraud advanced by the appellants in this case.

34     In short, to demonstrate fraudulent concealment, as alleged here, which suspends the running of the ultimate limitation period, the appellants must show (1) that Alberta (or its agents or servants) perpetrated some kind of fraud; (2) that the fraud concealed the fact of their injury; and (3) that the appellants each exercised reasonable diligence to discover the fraud.

35     It bears acknowledgment that the full extent of injuries wrought by the abuse of children often manifests itself slowly and imperceptibly, such that only the passage of time and maturity allows the victim to realize the magnitude of the harms suffered, and their cause: KM v HM, [1992] 3 SCR 6 at para 1, [1992] SCJ No 85 (QL) [KM]. While KM dealt with allegations of incest, some of the Supreme Court’s stated concerns in that case — notably, those regarding misconduct taking place in a “climate of secrecy”, the insidious measures by which a victim’s silence is attained, and the sometimes slow and incremental manifestation of harm — are also applicable to other forms of sexual abuse, whether sexual, physical or emotional. This is particularly so where the abuse is said to have taken place in an institutional setting, which may offer no safe harbour for a child at the time the abuse occurred.

36     All that said, such concerns go to when the appellants’ injuries could reasonably have been discovered (which is irrelevant when considering the ultimate limitation period), and not to whether the fact of their injuries was concealed from them. The appellants have not met their burden of proving that whether the operation of the limitation period stated in section 3(1)(b) was suspended is an issue of merit that genuinely requires a trial. There is no evidence that any of them were laboring under a misapprehension of the fact of having suffered an injury, let alone a misapprehension of fact caused by fraudulent concealment. While they might not have known until later that they could sue, that is not the same thing as having the fact of the wrongful conduct and its effects deliberately concealed from them. Nor does being told at the time not to discuss the abuse support an allegation of fraudulent concealment of the fact of the injury. While the evidence here strongly suggests that each of the appellants were aware of the wrongfulness of the alleged acts well before the expiry of the ultimate limitation period, we need not decide that here. It suffices to conclude that the issue of fraudulent concealment is insufficiently meritorious to require a trial.

37     As to whether the ultimate limitation period was suspended on the ground that the appellants were “person[s] under disability”, we are also of the view that the appellants have not met their burden. The appellants do not say that they were represented adults under the Adult Guardianship and Trusteeship Act or persons subject to a certificate of incapacity under the Public Trustee Act. And, while each of them has encountered difficulties in life, they do not show how such difficulties rendered them unable to make reasonable judgments in respect of their claims. Even the facts alleged by EP with respect to her time spent in psychiatric hospital care, which might form part of an account of a disability which suspends the operation of the ultimate limitation period, is on its own insufficient to show that the issue has merit. We are not told, for example, what that care entailed, when she was in that care, or for how long.

38     We note that, in addressing their lack of knowledge of and whether they were “person[s] under disability”, the appellant relies largely on cases from other provinces, notably British Columbia and Ontario. Each province, however, can legislate its own policy preferences as to general limitations: Castillo v Castillo, 2005 SCC 83 at para 5, [2005] 3 SCR 870. We are obliged in this case to implement the expressed will of Alberta’s Legislature, and no other. And, Alberta’s legislators chose to allow suspension of the running of the ultimate limitation period only in exceptionally narrow circumstances. It is difficult — and they intended that it be difficult — for plaintiffs to persuade a court that the ultimate limitation period should not run for a period of time. It will be a rare case where deliberate concealment of the fact of an injury, or a condition which disables a claimant from making reasonable judgments, can be established within the meaning of sections 4 and 5 of the Act. This is not such a case.

                                                                                         B.  The Second Ground: Blending Summary Judgment and Certification

39     The appellants point to certain passages (paragraphs 89 and 91) from the chambers judge’s decision on summary judgment as demonstrating that he impermissibly took into account considerations that are irrelevant to summary judgment — specifically, whether the plaintiffs had established an identifiable class of two or more persons, and whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues. These are both prerequisites to certification under section 5 of the CPA. This suggests, the appellants further argue, that the chambers judge erroneously conflated the application for certification with the application for summary judgment.

40     This ground of appeal has no merit. The chambers judge was responding to an alternative argument (not advanced before us) to the effect that, if the appellants’ claims were time-barred, another person whom the appellants had identified as a potential class member ought to be appointed as a representative plaintiff. We see no error in his handling of that submission.

                                                                                       C.  The Third Ground: Requiring the Appellants to Give Notice

41     The appellants say that the chambers judge erred in in requiring them to notify all potential class members of the dismissal of their action. Specifically, and as we have already recounted, he ordered that the appellants “immediately give notice to all potential class members of their rights flowing from s 40 of the [CPA]”, presumably so that such persons would know that the limitation period in respect of their claims had resumed running.

42     For reasons unknown to us, this part of the chambers judge’s decision was not included in the final order. The substance of just what was directed was also unclear, although we note that the chambers judge invited counsel to seek further direction if necessary. While we harbour doubts as to whether the chambers judge had the authority to make that direction, in these circumstances we decline to decide this ground of appeal.

VI.  Conclusion

43     The appeal from the chambers judge’s decision on summary judgment is dismissed. It follows that the appeal from the certification decision is moot.

Memorandum filed at Edmonton, Alberta this 28th day of November, 2014

P.T. COSTIGAN J.A.

  1. WATSON J.A.

R.S. BROWN J.A.

 

1 WP from 1972 to 1982; MP from 1959 to 1972; and EP from 1980 to 1991.

 

2 Section 2(3) provides that an application for certification must be made within 90 days after either the day on which the Statement of Defence was served or the day on which the time for filing a Statement of Defence expired (whichever is later).

 

3 While Section 2(4) provides that the court may certify a representative plaintiff who is not a member of the class in order to avoid a substantial injustice, the chambers judge in this case was not asked to exercise his discretion in this case to do so.

 

 

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