Statutes of Limitation and Indigenous Civil Claims

 

Tansi Nîtôtemtik,

Today ReconciliAction YEG continues our assessment of the Justice Calls to Action, specifically Call to Action #26:

We call upon the federal, provincial and territorial governments to review and amend their respective statutes of limitations to ensure that they can conform to the principle that governments and other entities cannot rely on limitation defences to defend legal actions of historical abuse brought by Aboriginal people.^[1]

To better understand the importance of this Call to Action, let’s first review the function of statutes of limitations.

Statutes of Limitations

Statutes of Limitations are pieces of legislation that place time limits on when a civil claim can be brought forward. If the limitation period for a claim has expired when it is brought to court, the other party can plead the applicable statute of limitations as a defence. 

With the exception of Quebec, each province has Statute of Limitations legislation. In Alberta the statute is the Limitations Act.^[2] The reasoning behind this legislation is:

1) security, so that parties know when they can be sued; 

2) fairness, by ensuring that evidence is preserved and;

3) ensuring that parties bring their actions forward in a timely manner.^[3]  

Legal Actions of Historical Abuse

The historical abuse suffered by Indigenous peoples through institutional actions is no mystery. From Residential Schools where children were taken from their families and subjected to  physical, psychological, and sexual abuse to the attempted elimination of Indigenous cultures and languages through government policy, many of these historical abuses could found legitimate civil actions. Further, the Government has a special legal relationship with Indigenous people, known as a fiduciary duty. This duty refers to the special responsibility of the Government to act in the best interests of the Indigenous people of Canada.

Legal actions have been brought forward by Residential School survivors, most commonly for sexual and physical abuse suffered at the hands of staff.^[4] The reason these historical claims could be brought forward was because most Canadian provinces exclude sexual abuse from having a limitation period.^[5]  

Litigation guidelines for civil litigation involving Indigenous peoples were published by the Department of Justice in 2018, which state: 

Litigation Guideline #14: Limitations and equitable defences should be pleaded only where there is a principled basis and evidence to support the defence…

When determining whether such circumstances exist, counsel must consider whether the defence would be consistent with the honour of the Crown. Reconciliation is generally inhibited by pleading these defences^[6].

While the Government has pledged to adjudicate Indigeneous claims fairly with a focus on reconciliation, their actions speak differently. For example, when the Canadian Human Rights Tribunal ordered the Government to pay compensation to First Nations youth in care in First Nations Child and Family Caring Society of Canada^[7]; their response was to file an appeal on jurisdictional grounds. ^[8] While a limitations defence was not plead, the Government’s choice to appeal does not demonstrate a desire to preserve the “honour of the Crown”. (See our post about the Decision here.)

As of now, no amendments have been made to the Statutes of Limitations of any Canadian provinces or territories to reflect Call to Action #26 and allow “expired” civil claims stemming from the historical abuse suffered by Indigenous peoples. As a result, Team ReconciliAction is giving a failing grade on Call to Action #26. 

Final Thoughts

It is not hard to comprehend why the TRC made Call to Action #26. For true reconciliation, Canada needs to remove procedural barriers like Statutes of Limitations for the adjudication of Indigenous claims. Accountability is central to reconciliation, and by failing to implement unequivocal legislation that ensures historical claims can be brought forward, accountability is lost.  

Thanks for reading. Please let us know your thoughts on this post!

Until next time,

Team ReconciliAction YEG

¹ Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconciling for the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Ottawa, Truth and Reconciliation Commission of Canada, 2015) at 167.

²Limitations Act, RSA 2000, c L-12. [Limitations Act]

³M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] 3 SCR 6 at 29-30.

⁴See R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411; H.L. v. Canada (Attorney General), 2005 SCC 25; Cloud v. Canada (Attorney General), 2004 CanLII 4544 (ONCA); Blackwater v. Plint, 2005 SCC 58; E.B. v. Order of the [Roman Catholic] Oblates of Mary Immaculate in the Province of British Columbia, 2005 SCC 60; Canada (Attorney General) v. Fontaine, 2017 SCC 47. 

⁵ With the exclusion of Prince Edward Island. 

⁶ Department of Justice Canada, “The Attorney General of Canada’s Directive on Civil Litigation Involving Indigenous Peoples” (2018) online (pdf):<www.justice.gc.ca/eng/csj-sjc/ijr-dja/dclip-dlcpa/litigation-litiges.pdf> at 18.

⁷First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2. [First Nations Child and Family Caring Society of Canada]

⁸First Nations Child and Family Caring Society of Canada, “A historic legal victory for First Nations children and Canada’s failure to comply” (29 Jun 2017) Committee on the Elimination of Racial Discrimination, 21st – 23rd Reports of Canada, Alternative Report, online (pdf): <tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/CAN/INT_CERD_NGO_CAN_27941_E.pdf>.