P brought claim when she was 28 for incest that occurred between 8-16.
s.47 of limitation act postpones the limitation period if the P is under a legal disability – minor, mental defect, mentally incompetence, etc. The old limitation act in place at the time was 4 yrs
Is P barred from bringing claim based on time limitations?
Test – would a hypothetical reasonable person in the shoes of the P been acting sensibly in commencing an action earlier or should the person have waited until being able to appreciate that a wrong or wrongs have occasioned significant harm to her wellbeing
P only discovered the link to her injuries bc of the incest when she entered therapy and the lawsuit was commenced shortly after that.
Appellants claim age of majority is when the limitation period should have started to run
**BUT court says - P must have substantial awareness of the harm and its likely cause before the limitation period beings
Presumption that certain incest victims only discover the necessary connection between their injuries and the wrong in therapy (so once in therapy clock will start to run, that is the presumption)
**It is open to the D to rebut this
Tort claim, while subject to time limitations, does not accrue until the P is reasonably capable of discovering the wrongful nature of the Ds acts and the nexus between those acts and her injuries
P can get damages
Public policy perspective – there is not reason to give effect to the limitation period to benefit the D in this reason
Evidentiary issue – doesn’t play much role since it will always be a few years (incest is a child)
**Just cause case is old doesn’t mean that it is stale – after therapy you may be able to give better evidence
**In some cases worry bc docs or other physical evidence are involved (that a D would want to have kept) – this is not a issue in this kind of case
Ps Diligence – she couldn’t pursue it earlier bc she hadn’t made the connection between the act and injury
**Look at empirical data – that often the therapy makes people aware of what happened