Edgars v. British Columbia (Children and Family Development)

2025 BCSC 2202 Edgars v. British Columbia (Children and Family Development)

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Edgars v. British Columbia (Children and Family Development), 2025 BCSC 2202 Date: 20251106 Docket: S207419 Registry: Vancouver Between: Olivia Edgars Plaintiff And: His Majesty the King in Right of the Province of British Columbia (Minister of Children and Family Development and Minister of Public Safety and Solicitor General), John Doe, Jane Doe, Julian Doe and Julia Doe Defendants Before: The Honourable Madam Justice Forth Reasons for Judgment Counsel for the Plaintiff: J. Gratl J. Mager, Articled Student Counsel for the Defendant, His Majesty the King in Right of the Province of British Columbia (Minister of Children and Family Development): R. Warburton M. Salt Counsel for the Defendant, His Majesty the King in Right of the Province of British Columbia (Minister of Public Safety and Solicitor General): D. Kwan R. Grist Place and Dates of Hearing: Vancouver, B.C. April 23 - 24, 2025 Place and Date of Judgment: Vancouver, B.C. November 6, 2025 Table of Contents Introduction.. 3 Relevant Background.. 4 The Parties. 4 History of the Proceeding.. 4 Issue 1: Should the plaintiff be given leave to file a Third ANOCC?. 6 Legal Principles. 6 Position of the Parties. 9 Analysis. 10 Issue 2: Are the claims advanced in the Third ANOCC barred by the expiry of the limitation period?. 12 Should the limitation defence be decided on a

summary application?. 12 Relevant Facts. 12 Position of the Parties. 14 Position of the Plaintiff 14 Position of MCFD.. 14 Position of MPSSG.. 16 Legal Principles. 16 Analysis. 20 Conclusion.. 22 Introduction [1] The plaintiff, an Indigenous woman, alleges that she suffered damages as a result of having been apprehended by the Ministry of Children and Family Development (the "MCFD") and placed into its custody from age 12 to 19 pursuant to a custody order under the Child, Family and Community Service Act, R.S.B.C. 1996, c. 46 [CFCSA]. [2] The plaintiff further alleges she was the subject of a "Mr. Big" operation by the RCMP that led to her being charged in the second-degree murder of an individual. At a subsequent jury trial, she was acquitted of this charge. [3] The MCFD and His Majesty the King in the Right of the Province of British Columbia (Minster of Public Safety and Solicitor General) ("MPSSG") are named as defendants in this action. Specifically, the MCFD is defending the plaintiff's claims respecting her time under the MCFD's care, and the MPSSG is defending the plaintiff's claims relating to the conduct of the "Mr. Big" operation. In addition, various unidentified individuals are named as defendants, being the employees and agents of the MCFD and the members of the RCMP tasked with the conduct of the "Mr. Big" investigation. [4] Three applications were heard at a

hearing on April 23 and 24, 2025: 1. the MPSSG's application filed May 21, 2021 (the "MPSSG Application") to dismiss the plaintiff's claim by way of summary judgment per Rule 9-6 of the Supreme Court Civil Rules, BC Reg. 168/2009 [Rules], or, in the alternative, summary trial per Rule 9-7; 2. the MCFD's application filed January 16, 2025 (the "MCFD Application") to strike without leave to amend and dismiss the plaintiff's claim against the MCFD pursuant to Rule 9-6 or 9-5(1); and 3. the plaintiff's application filed April 8, 2025 (the "Plaintiff Application") to file a third amended notice of civil claim (the "Third ANOCC"). [5] The parties agreed that the Plaintiff Application should be heard first. Relevant Background The Parties [6] The plaintiff is an Indigenous woman of Haida background. She was born on March 10, 1982, meaning that she reached the age of 19 on March 10, 2001, and is currently 43 years old. [7] The plaintiff came under the care of the MCFD in April, 1994 under a short-term custody agreement, which expired in January, 1995. After the plaintiff's mother refused to extend the short-term custody agreement, the MCFD apprehended the plaintiff, then aged 12, from her mother on Haida Gwaii. The plaintiff was subject to a continuing care order under the CFCSA. [8] The MCFD, formerly known as the Ministry of Social Services, was responsible for administering the

Family and Child Service Act, S.B.C. 1980, c.11 (repealed on January 29, 1996) and is currently responsible for administering the CFCSA. History of the Proceeding [9] On July 21, 2020, the plaintiff filed the original notice of civil claim, naming the MCFD, the Minister of Justice, and other unnamed individuals as defendants. The notice of civil claim alleged that while in the care of the MCFD, the plaintiff had been subjected to neglect and physical and sexual harm. One of the claims advanced was that the plaintiff was touched for a sexual purpose by male staff members at multiple care homes. The claim against the Minister of Justice related to a "Mr. Big" operation that the plaintiff was involved in. [10] On November 6, 2020, the plaintiff filed an amended notice of civil claim (the "ANOCC"), removing the Minister of Justice and adding the MPSSG as a defendant. The allegations against the MCFD remained the same. [11] On November 19, 2020, the MPSSG filed a response to the ANOCC. The MPSSG relied on various sections of the Limitation Act, S.B.C. 2012, c. 13 [Act] and sections of the Limitation Act, R.S.B.C. 1996, c. 266 [Former Act]. [12] On February 12, 2021, the MCFD filed a response to the ANOCC. One of the defences raised was that the action was barred by the effluxion of time, with the limitation period having expired on March 11, 2007. [13] On May 21, 2021, the MPSSG

filed the MPSSG Application seeking dismissal of the plaintiff's claim under Rules 9-6 and 9-7 of the Rules, on the basis of its limitation defence. [14] On May 25, 2021, the plaintiff filed a reply to the responses of the MCFD and MPSSG pleading a postponement of the limitation period and relying on the transitional provisions set out in s. 30 of Act in conjunction with ss. 6 and 7 of the Former Act. She claims that the limitation period should be postponed because the identities of the unnamed defendants were not known (and remain unknown), and because her circumstances prevented her from bringing the claim. [15] On January 18, May 31, and September 15, 2022, the parties appeared before the Court regarding, among other things, the MCFD and MPSSG's respective applications for particulars, and the plaintiff's application for document production. These applications were heard by Justice Blok, who issued reasons indexed as 2023 BCSC 1082 [Reasons]. Justice Blok ordered the plaintiff to either provide particulars or provide an explanation as to why she cannot provide particulars in relation to the following: a) those claims that allege specific torts such as sexual assault, sexual abuse, physical abuse and emotional abuse; b) those claims of denials of food, medicine and medical care; and c) her claims that she reported abuse or neglect to MCFD where she alleges her reports were

not acted upon. Reasons at para. 73. [16] The plaintiff was required to provide the particulars within 21 days of the Reasons: Reasons at para. 118a. [17] The plaintiff did not provide particulars to the MCFD and instead on August 14, 2023, filed the Second ANOCC (the "Second ANOCC"). [18] On September 6, 2024, Justice Blok made an order granting leave to the plaintiff to refile the Second ANOCC. [19] On September 11, 2024, the plaintiff filed the Second ANOCC, naming various individuals to whom she allegedly disclosed or displayed her emotional and psychological distress. It removed the allegation that she had been touched for a sexual purpose by male staff members at multiple care homes. [20] On December 12, 2024, the MCFD filed a response to the Second ANOCC, asserting that it was time barred and failed to disclose a reasonable a claim. [21] On January 16, 2025, the MCFD filed the MCFD Application to dismiss the plaintiff's claim based on insufficient pleadings and a limitation defence. [22] On April 2, 2025, the plaintiff filed application responses to the MCFD and MPSSG Applications. [23] On April 8, 2025, the plaintiff filed the Plaintiff Application seeking leave to file the Third ANOCC, which would add a claim of common assault against the MPSSG. Issue 1: Should the plaintiff be given leave to file a Third ANOCC? Legal Principles [24] Rule 6-1 of the Rules permits

amendments to be made at any time during litigation, even following trial and until the order is entered: Precursor Capital Corp. v. HydRx Farms Ltd., 2018 BCSC 1150 at para. 114; see also Macdonald v. Macdonald (1996), 21 B.C.L.R. (3d) 379 at para. 25, 1996 CanLII 1360 (S.C.); Lam v. Chiu, 2012 BCSC 677 at para. 10. [25] The Court has a wide discretion on an application to amend pleadings: Lovelock v. 0459478 B.C. Ltd., 2025 BCSC 361 at para. 17. [26] The jurisdiction to amend is broad and amendments are to be allowed unless prejudice can be demonstrated by the opposing party or the amendment will be useless: Olson v. Miller, 2019 BCCA 274 at para. 71, citing Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145, 1996 CanLII 1433 (C.A.) at para. 34. [27] The test on an application to amend was summarized in Interville Development Limited Partnership v. The Owners, Strata Plan BCS2313, 2017 BCSC 2542: [7] The test on an application to amend is well established. In the absence of evidence of actual prejudice to the other party (and none is asserted here), such amendments should be permitted as are necessary to determine the real question or questions in issue between the parties. The court will not allow useless amendments, and an application to amend is considered on the same basis as an application to strike a pleading under Rule 9-5(1)(a). Thus, the application

proceeds on the basis that the facts pleaded are true. In addition, the court will not give its sanction to amendments which violate the Rules that govern pleadings. These include: the requirements relating to conciseness and the pleading of material facts (Rule 3-1(2)(a)); that a pleading must not contain the evidence by which the facts alleged in it are to be proved (Rule 3-7(1)); and the prohibition against pleadings which disclose no reasonable claim or are otherwise scandalous, frivolous, vexatious or embarrassing (Rule 9-5(1)). [28] The overriding concern is potential prejudice to the non-amending party: Chohan v. Chohan, 2023 BCSC 800 at para. 7, citing Macdonald at para.

29. Thus, subject to this consideration of prejudice, amendments should be allowed to determine the real question in issue between the parties: Precursor Capital Corp. at para. 114. [29] The key principles are set out in 1305788 B.C. Ltd. v. Sodhi Dream Homes Ltd., 2023 BCSC 445: [27] Justice Kent helpfully summarized the principles governing amendments to pleadings in Thomas v. Rio Tinto Alcan Inc., 2019 BCSC 107: [18] Some of the basic principles governing applications for leave to amend pleadings have been summarized in Continental Steel Ltd. v. CTL Steel Ltd., 2014 BCSC 104 at para. 26 and in British Columbia (Director of Civil Forfeiture) v. Violette, 2015 BCSC 1372 at para. 41 [citations deleted]: 1. the court has a wide discretion to permit amendments so as to enable the real issues between the parties to be determined; 2. the discretion to permit amendments is unfettered, subject only to the general rule that it be exercised judicially; 3. the overriding consideration is the interests of justice generally and to direct what is just and convenient between the parties; 4. while useless amendments that do not advance a reasonable cause of action or defence are to be avoided, justice is generally best served by permitting amendments that will allow the real controversy between the parties to be decided on the merits; 5. amendments may not be allowed if they will cause

actual and meaningful prejudice to the opposing party--mere potential prejudice is insufficient. Rather the party resisting an amendment must prove actual and significant prejudice; 6. additional considerations include any delays in applying for the amendment, the reasons for such delay and whether deliberate or voluntarily dilatory conduct is involved, particularly when a new cause of action is proposed to be added that would otherwise preclude the operations of a limitation defence; 7. costs are the general means of protecting against prejudice unless it would be a wholly inadequate remedy; and 8. courts should only disallow an amendment as a last resort. [30] Pleadings serve an essential purpose: to define the issues and give opposing parties notice of the case they have to meet, and provide the context for effective pre-trial case management, disclosure, and trial preparation: Sayhoun v Ho, 2013 BCSC 1143 at para. 20, citing Keene v. British Columbia (Ministry of Children and Family Development), 2003 BCSC 1544 at para. 27. [31] The foundational nature of pleadings and the important role they play in litigation was affirmed by the Court of Appeal in Mercantile Office Systems Private Limited v. Worldwide Warranty Life Services Inc., 2021 BCCA 362, where Justice Voith stated: [21] Pleadings are foundational. They guide the litigation process. This is true in relation to the

discovery of documents, examinations for discovery, many interlocutory applications and the trial itself. [22] Pleadings also give effect to the underlying policy objectives of the Rules, which are to ensure the litigation process is fair and to promote justice between the parties: Wong v. Wong, 2006 BCCA 540 at paras. 22-23. They enable the parties and the court "to ascertain with precision the matters on which parties differ and the points on which they agree; and thus to arrive at certain clear issues on which both parties desire a judicial decision": 1076586 Alberta Ltd. v. Stoneset Equities Ltd., 2015 BCCA 182 at para. 55, citing D.B. Casson & I.H. Dennis, eds, Odgers' Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 21st ed (London: Stevens & Sons, 1975) at 75-76. [23] For the court, pleadings serve the ultimate function of defining the issues of fact and law that will be determined by the court. In order for the court to fairly decide the issues before them, the pleadings must state the material facts succinctly: Sahyoun v. Ho, 2013 BCSC 1143 at paras. 15-22; Shoolestani v. Ichikawa, 2018 BCCA 155 at para. 30; Weaver v. Corcoran, 2017 BCCA 160 at para.

63. They must be organized in such a way that the court can understand what issues the court will be called upon to decide: Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, 3rd ed, vol 1 (Markham, Ont.: LexisNexis Canada Inc., 2006) (loose‑leaf updated 2021) at 3-6; Simon v. Canada (Attorney General), 2015 BCSC 924 at paras. 17-18, aff'd 2016 BCCA 52. [44] Each pleading contemplates and requires a reasonable disciplined exercise that is governed, in many instances in mandatory terms, by the Rules and the relevant authorities Each requires the drafting party to "concisely" set out the "material facts" that give rise to the claim or that relate to the matters raised by the claim. None of these pleadings are permitted to contain evidence or argument. Position of the Parties [32] The plaintiff submits that the defendants will suffer no prejudice or delay if the plaintiff is granted leave to file the Third ANOCC. The plaintiff agreed that the Second ANOCC was "a little shy" on legal analysis, particularly insofar as it failed to set out the elements of negligence vis-à-vis the plaintiff's claims in negligence against the MCFD and the RCMP. To rectify this, the plaintiff has provided the Third ANOCC, outlining the duties of care that the MCFD and RCMP are said to have breached, and describing certain harms alleged in prior pleadings as the "foreseeable

consequences" of those breaches. [33] The MCFD submits that there is prejudice to its ability to investigate, identify, and tender evidence. It argues that the plaintiff has had the benefit of experienced counsel and ample opportunity to investigate and present facts. Furthermore, the proposed Third ANOCC does not clarify the issues between the parties and, as such, the plaintiff should not be granted leave to amend. [34] The MPSSG submits that the Third ANOCC does not contain sufficient material facts to establish the common law tort of assault. It argues that this cause of action has not been raised in the past and should not be permitted. In respect of the other amendments, it asserts that they are "useless" because they relate to causes of actions which are statute barred, and thus, should not be permitted. Analysis [35] With the exception of the plea of common assault against the RCMP, it is my view that the amendments in the Third ANOCC are ones that assist in determining the real question or questions at issue between the parties. I am not persuaded that there is any prejudice to the defendants in permitting the amendments. The amendments particularize the breaches of duties asserted by the plaintiff, and those particulars will clarify the issues and provide the defendants and Court with the precise basis of the claims being advanced. [36] However, I am of the view that

the plaintiff should not be permitted to plead the common law tort of assault against the MPSSG, as I am not persuaded that the facts pled support such a claim. [37] The key principles of the common law tort of assault were described in Khan v. School District No. 39, 2021 BCSC 49: [17] Assault is the intentional creation of the apprehension of imminent harmful or offensive contact, even if contact never actually occurs. Imminent apprehension of harm is a required. Frightening or threatening someone does not constitute an assault unless the event feared is imminent. To threaten to do harm at some future time does not amount to an assault. (Linden & Feldthusen, Canadian Tort Law, 11th ed. (Toronto: LexisNexis, 2018) [Canadian Tort Law] at 50-51). [38] In the context of police action, Justice Pearlman noted in Laktin v. Vancouver (City), 2013 BCSC 2270: [15] On the hearing of this application, the plaintiff did not argue that either Sergeant Clee or Constable Dujmovic committed the tort of assault. In order to establish that one or both of the applicant defendants committed the tort of assault, the plaintiff must prove that one or both of them engaged in conduct intended to arouse apprehension in the plaintiff of imminent harmful contact, that the threat of such contact was apparent to a reasonable complainant, and that the plaintiff apprehended imminent harm: Silbernagel v.

Ritchie (1994), 2 B.C.L.R. (3d) 147 at paras. 26, 27 (S.C.). [39] I agree with the submissions of the MPSSG that the Third ANOCC does not plead the necessary material facts to establish the common law tort of assault. The Third ANOCC at para. 16 provides the factual basis of the alleged assault, being that the RCMP extracted a false confession from the plaintiff through extremely aggressive interrogation and by yelling at and "implicitly threatening" the plaintiff when she asserted her innocence. I agree with the MPSSG that these facts fall short of providing adequate support for the assault claim. They do not provide: a. that the "implicit" threat was to do physical harm to the plaintiff; b. that the "implicit" threat was intentional by the RCMP member(s); c. that the harm threatened was imminent and not in the future; d. who actually made the "implicit" threat or what the conduct was that is alleged to have been threatening; or e. what, if any, belief the plaintiff formed at the time of that interaction. [40] Accordingly, I find that the amendments sought as set out in the proposed Third ANOCC are permitted, except for the amendment sought in Part 3, para. 26: "The threats made by RCMP members to the Plaintiff constituted an assault at common law." This amendment is not permitted and the claim for assault at common law against the RCMP members is not to be included in the

Third ANOCC. [41] In addition, the plaintiff needs to provide some clarity at para. 26 c. and e. of the Third ANOCC, since those paragraphs refers to both "targeting witnesses and/or non-suspects". These two paragraphs need to be clarified, including in respect of to whom they are referring. [42] I note that the MCFD Application was prepared based on the Second ANOCC, being the plaintiff's most recent pleading at the time the MFCD Application was filed. The MCFD sought leave to apply to strike the Third ANOCC if the amendments were granted. [43] It is clear to me that some of the arguments raised in the MCFD Application and written submissions have been addressed by the amendments now granted in the Third ANOCC. As such, I intend only to deal with the limitation defences raised by both the MCFD and MPSSG at this time. The MCFD is granted leave to bring an application to raise any further issues with the Third ANOCC. I am not seized with any further application to strike the Third ANOCC at this time but would make myself available to hear such an application. Issue 2: Are the claims advanced in the Third ANOCC barred by the expiry of the limitation period? [44] A preliminary issue is whether it is appropriate to make a determination on the limitation defences under Rules 9-5(1)(a), 9-6, or 9-7 in the circumstances of this case. Should the limitation defence be decided on a

summary application? Relevant Facts [45] The plaintiff swore an affidavit in which she deposed as follows: · She has had and continues to have problems controlling her drug use, suffers from serious mental health issues including trauma, depression, anxiety, and substance dependency, and her life has been very unstable. · As a result of her experiences with the MCFD and RCMP, she does not trust police, lawyers, or judges, and has sought to avoid the justice system and lawyers whenever possible. · Until 2020, she was not aware that she could have brought a lawsuit against the MCFD or RCMP for how they treated her. · Homelessness, emotional, and psychological problems and social instability made it unrealistic for her to consider anything like seeking justice for her mistreatment as a child. · It was only after connecting with the lawyers at Gratl & Company in the early summer of 2020 that she considered that there would be any form of legal accountability for what the MCFD and RCMP had done to her. · She continues to suffer from substance use disorder, depression, anxiety, panic attacks, and stress disorder, making it very challenging for her to bring this lawsuit. [46] In her reply filed May 25, 2021, the plaintiff raised the issue of a postponement of the limitation period arising from her psychological condition, emotional and social disruption, homelessness, substance use,

and generalized distrust of the judicial system, all of which she claims were caused and contributed to by the defendants' acts or omissions. [47] On August 30, 1997, the plaintiff was charged with the second-degree murder of Zachariah Steudle (the "Criminal Proceedings"). The jury trial in the Criminal Proceedings took place in the summer of 2000 with Philip Rankin acting as defence counsel for the plaintiff. The jury acquitted the plaintiff in August of 2000. [48] In 2001, the plaintiff was able to instruct her counsel, Mr. Rankin, to appear on her behalf in the Supreme Court of Canada respecting a publication ban in the Criminal Proceedings. [49] From 2001 to 2010, the plaintiff had ongoing legal representation because of her involvement in other provincial court proceedings. Position of the Parties Position of the Plaintiff [50] The plaintiff submits that the Court of Appeal's decision in Rooney v. Galloway, 2024 BCCA 8, effectively closes the door on the limitation defences raised in the MCFD and MPSSG Applications. In oral submissions, plaintiff's counsel took the position that although the door is not closed, it is a narrow door through which the defendants cannot fit. The plaintiff submits that the issue of the postponement of the limitation period needs to be assessed on a full evidentiary record at a proper trial so that the Court can weigh the evidence. Position of

MCFD [51] The MCFD argues that under the Former Act, the plaintiff would have had two years per s. 3(2), or at the very most, six years per s. 3(5), from when she reached the age of majority to bring a claim. In this case, that would be either March 10, 2003, or March 10, 2007. Since the plaintiff did not commence the claim until July 21, 2020, both limitation periods are well beyond expiry. The MCFD submits that the decision in Rooney involved a claim of defamation advanced by the plaintiff against several of the defendants, and the Court of Appeal noted that the trial judge failed to appreciate that the limitation issues required her to engage in multiple fact-finding exercises involving both the assessment of credibility and the need to draw inferences from the facts: Rooney at para.

170. The MCFD further submits that the decision in Rooney was fact specific and does not universally close the door to applications under Rule 9-6. [52] The MCFD argues that the burden of establishing that the limitation period has been postponed rests on the plaintiff. The limitation period begins to run when all of the following requirements have been met, per s. 6(4) of the Former Act: a. The identity of the defendant is known to the plaintiff. b. The plaintiff has certain facts within their means of knowledge. c. A reasonable person, knowing those facts and having the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success. d. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in her own interests and taking her circumstances into account, to be able to bring an action. Lorette v. Thorson Health Centre, 2008 BCSC 552 at paras. 70-72. [53] The MCFD argues that the first element of the test has been met since the plaintiff's pleading clearly identifies the MCFD as the defendant. The plaintiff would know of the facts alleged to have occurred when she was in the care of the MCFD because she was the one that directly experienced them. [54] The

MCFD submits that the limitation period should not be postponed solely because the plaintiff did not seek legal advice until 2020. It relies on Novak v. Bond, [1999] 1 SCR 808, 1999 CanLII 685, in submitting that postponement requires a plaintiff's individual circumstances to be so compelling as to persuade the Court that it was unfeasible for the plaintiff to have brought the claim. The MCFD says that the reason the plaintiff did not bring a claim, being that she did not seek legal advice until 2020, is not so compelling; the absence of legal advice does not result in a postponement. Position of MPSSG [55] The MPSSG submits that the plaintiff's claim is statured barred. It submits that the applicable limitation period under the Act is two years as provided for in s. 3(2)(a), or alternatively, six years as provided for in s. 3(5). It asserts that the limitation period to bring a claim against the RCMP began to run on March 10, 2001, when the plaintiff turned 19, being the age of majority. The limitation period for commencing an action would have expired on March 10, 2003, if a two-year period, or March 10, 2007, if a six-year period. The notice of civil claim was filed on July 21, 2020, being either 13 years or 17 years past the limitation date. The MPSSG seeks an order pursuant to Rule 9-6, or alternatively, Rule 9-7, that the plaintiff's claim is time barred. [56] The MPSSG

argues that the Rooney decision has not closed the door on having a limitation defence heard under Rule 9-6. In support of this position, it refers to the decision in Smith v. SaNOtize Research and Development Corp., 2024 BCSC 386 at para. 53, and the cases cited therein. [57] The MPSSG further relies on the decision in Sun-Rype Products Ltd. v. Archer Daniels Midland Company, 2007 BCSC 640 at para. 56, for the proposition that in the absence of detailed facts and supporting evidence, a "self-serving affidavit" sworn in response to a limitation motion is not sufficient to establish that discoverability of a claim has been postponed. [58] The MPSSG submits that on the evidentiary record, all four criteria have been met and the Court should find no postponement. Legal Principles [59] Section 3(1)(j) and (k) of the Act provides: This Act does not apply to the following: (j) a claim relating to sexual assault, whether or not the claimant's right to bring the court proceeding was at any time governed by a limitation period; (k) a claim relating to assault or battery, [60] Section 8 of the Act sets out the general discovery rules: 8 Except for those special situations referred to in sections 9 to 11, a claim is discovered by a person on the first day on which the person knew or reasonably ought to have known all of the following: (a) that injury, loss or damage had occurred; (b) that

the injury, loss or damage was caused by or contributed to by an act or omission; (c) that the act or omission was that of the person against whom the claim is or may be made; (d) that, having regard to the nature of the injury, loss or damage, a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage. [61] The Former Act provided that a limitation period for a personal injury claim would not begin to run until the plaintiff knew the identity of the defendant(s), and the facts within the plaintiff's means of knowledge are such that a reasonable person having taken the appropriate advice would have regarded those facts as showing that a cause of action with a reasonable prospect of success existed and that they ought to be able to bring an action. [62] Rule 9-5(1)(a) allows the striking of a claim if it is "plain and obvious", assuming the facts alleged are true, that the claim cannot succeed: Sahyoun v. Ho, 2015 BCSC 392 at para. 57. [63] Rule 9-6(5)(a) provides that the Court must dismiss a claim if it is satisfied that the claim raises no genuine issue for trial. The analysis under Rule 9-6(5)(a) is concerned with whether, based on all the material, the claim is so factually without merit that it is manifestly clear that there is no genuine issue to be tried: Edgar v. The British Columbia Institute of Technology, 2015 BCSC 710 at para.

9. A summary judgment application is not likely to succeed where the evidence presents conflicts, as the Court's role at this juncture is not to weigh evidence or make factual determinations: Balfour v. Tarasenko, 2016 BCCA 438 at para. 43; Edgar at para. 34. [64] Rule 9-7 allows for the determination of the issue by way of a summary trial. A successful application to proceed by summary trial under Rule 9-7 requires the Court to be able to find the facts necessary to decide the issue(s) of fact or law and assess that it would be just to decide the matter on a summary trial: Brissette v. Cactus Club Cabaret Ltd., 2017 BCCA 200 at paras. 19-20. [65] In Rooney, the Court of Appeal addressed certain issues that arise in the context of applications to strike based on limitation defences under Rules 9-5(1) and 9-6: [164] These constraints stand in stark contrast to what is often required to address a limitation defence. Assessing a limitation defence, including when a limitation period begins to run, is "inherently a factual exercise" that generally requires "a full evidentiary foundation" (Aubichon v. Grafton, 2022 BCCA 77, at para. 42 and the authorities referred to therein). Thus, "[f]actfinding is required to assess whether a claim is discovered under the Limitations Act " (Toussaint v. Canada (Attorney General), 2023 ONCA 117, at para. 11). And, determining discoverability "is

not a relatively straightforward factual issue" given that "[d]iscoverability cases do tend to be contentious and complex" (Mega International Commercial Bank (Canada) v. Yung, 2018 ONCA 429, at para. 88). [165] Furthermore, whether a plaintiff has exercised reasonable diligence is also an issue that is best addressed on a full evidentiary record and will depend on all the circumstances of the case (Burtch v. Barnes Estate (2006), 80 O.R. (3d) 365, 2006 CanLII 12955 (C.A.), at paras. 27, 29; Longo, at para. 42). It is a question that may require some consideration of an individual plaintiff's personal circumstances (Fibabanka A. Ş. v. Arslan, 2023 SKCA 13, at paras. 67-68; Lawless v. Anderson, 2011 ONCA 102, at paras. 22, 26, 28; Crombie Property Holdings Limited v. McColl-Frontenac Inc. (Texaco Canada Limited), 2017 ONCA 16, at para. 42, leave to appeal to SCC ref'd, 37473 (1 June 2017) [Crombie]; Vu v. Canada (Attorney General), 2021 ONCA 574, at paras. 47-49). Accordingly, in most instances, and certainly in this case, these inquiries should be addressed at trial on a full record. [166] In light of these realities, limitations defences will rarely be decided on an application to strike brought under R. 9-5(1)(a) of the Rules (Aubichon, at para. 41 and the authorities referred to therein; Toussaint, at para. 11 (addressing a similar provision in Ontario)). [167] Nor are

limitation issues readily determined under a summary judgment application brought under R. 9-6 of the Rules, where the question is whether there is a "genuine issue of material fact requiring trial" (Canada (Attorney General) v. Lameman, 2008 SCC 14, at para. 11, citing Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 432, 1999 CanLII 664, at para. 27). Thus, on an application under R. 9-6, "if the evidence needs to be weighed and assessed, then the application is to be dismissed" (Beach Estate v. Beach, 2019 BCCA 277 at para. 67). [66] The question of whether a limitation period has been postponed is largely a fact-based inquiry: Walsh v. BDO Dunwoody LLP, 2013 BCSC 392 at para. 27. [67] An application to strike under Rule 9-5(1) on the grounds that a claim is time-barred "must be plain and obvious on the face of the notice of civil claim and it must not be subject to an issue, such as discoverability or postponement, that should only be decided on full pleadings and evidence": Ahamed v. The Great Canadian Landscaping Company Ltd., 2021 BCSC 197 at para. 19. [68] In Ounjian v. St. Paul's Hospital, 2002 BCSC 104, the Court set out a four-step analytical framework of the postponement provisions of the Act as follows: [21] The four components can be paraphrased within the context of the present circumstances as follows: 1. The identity of the defendant is known to the plaintiff.

2. The plaintiff has certain facts (including the facts set out in s. 6(5) (b)) within her means of knowledge.

3. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success.

4. A reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in her own interests and taking her circumstances into account, to be able to bring an action. All four of these components must be satisfied before the running of time with respect to the limitation period begins running. Thus, if a plaintiff is able to demonstrate that any one of the four components had not been satisfied before two years prior to the commencement of the action (in the case of a two year limitation period), the action will not be statute barred. [69] In Novak, the Supreme Court of Canada set out the factors to consider when considering the circumstances of a plaintiff seeking to prove that a limitation period has been postponed: [86] Whether a particular circumstance or interest has the practical effect of preventing the plaintiff from being able to commence the action must be assessed in each individual case. Section 6(4)(b) requires that the circumstances and interest of the individual plaintiff be taken into account. What is a serious, substantial, and compelling interest in one case may not be so in another case. Purely tactical concerns play no role in this analysis because they do not relate to the practical ability of the plaintiff to bring an action, as assessed

by reasonable person who takes into account all his or her circumstances and interests. See Trueman v. Ripley, [1998] B.C.J. No. 2060 (QL) (S.C.). [ ] [90] I conclude that delay beyond the prescribed limitation period is only justifiable if the individual plaintiff's interests and circumstances are so pressing that a reasonable person would conclude that, in light of them, the plaintiff could not reasonably bring an action at the time his or her legal rights crystallized. The task in every case is to determine at which the plaintiff reasonably could bring an action, taking into account his or her own interests and circumstances. [Underlining in original]. Analysis [70] I agree with Justice Loo's statement in Smith that the Court of Appeal's decision in Rooney does not preclude determining limitation issues under Rules 9-5 and 9-6 when an action is clearly statute barred because of the expiry of a limitation period: Smith at paras. 52-53. [71] As such, the issue before me is whether the action is clearly statute barred or whether, due to the issue raised by the plaintiff of postponement, that the limitation issue should not be determined on a summary basis. [72] I note that in Smith, the plaintiff did not rely on the postponement provisions of the Act. This is an important distinction. Justice Loo referenced four decisions in support of permitting the bringing of limitation

defences under a summary process. In Grosz v. Royal Trust Corporation of Canada, 2021 BCSC 1313, Mr. Grosz did not argue that the limitation period should be postponed due to his circumstances, but relied on the discoverability rule. I found that Mr. Grosz could not rely on this rule as he should have known of the identity of Ms. Jones: Grosz at para. 120. [73] In Sime v. Jupp, 2009 BCSC 1154, the plaintiff argued that the time period should be postponed since she did not have the necessary information to bring an action within two years of the time the defamation occurred: Sime at para.

20. The Court found that a claim for defamation did not come within s. 6(3)(a) to (h) of the Former Act and, as such, the postponement provisions did not apply: Sime at paras. 20-23. [74] In De Vries v. Canada Revenue Agency, 2021 BCSC 527 at para. 39, the Court found there were no real issues to be argued relating to a lawful basis for postponement of the limitation, citing Sime at para. 17. [75] Finally, in Brown v. Canada (Attorney General), 2014 BCSC 357 at para. 28, the Court found that upon accepting Mr. Brown's evidence, there were no facts raised that would support any postponement argument under the Former Act. [76] As noted by the Supreme Court of Canada in Novak, it is the circumstances and interests of the individual plaintiff that must be considered. The plaintiff deposed that she suffers from a range of mental health diagnoses that impaired her ability to bring a lawsuit. She further points to her significant lack of trust in the judicial system because of the treatment she alleges she suffered at the hands of the MCFD and RCMP when she was a child. I accept that this plaintiff faced significant challenges as a child and that her past continues to impact her ability to function. [77] It is my view that there are "real issues" concerning the postponement of the limitation period raised by the plaintiff and it is in the interests of justice to allow for a full hearing such that the evidence can be "weighed and assessed": Rooney at para.

167. I consider that these issues are likely to require a fuller exploration of the evidence that is germane to their resolution. A failure to allow the plaintiff to develop that evidence would be inappropriate and unjust. I am not persuaded that the action, if permitted to proceed to trial, would "surely fail" on the basis of being time barred: Canada (Attorney General) v. Lameman, 2008 SCC 14 at paras. 10-12. Accordingly, in all the circumstances, the MCFD and MPSSG Applications to strike the claim as being statute barred are dismissed. [78] I note that MPSSG also sought to strike the claim pursuant to a summary trial. In determining whether it would be unjust to proceed by way of a summary trial, the Court may consider a number of factors including, inter alia, the complexity of the matter, any prejudice due to delay, the cost of taking the case forward to a conventional trial in relation to the amount involved, the cost of the litigation and the time of the summary trial, whether credibility is a critical factor in determining the dispute, whether the summary trial may create an unnecessary complexity, and whether the application would result in litigating in slices: Gichuru v. Pallai, 2013 BCCA 60, at paras. 30-31 citing Inspiration Mgmt. Ltd. v. McDermid St. Lawrence Ltd. (1989), 36 B.C.L.R. (2d) 202 (C.A.). [79] In my view, it would be unjust to make a determination

under the summary trial procedure, in light of my finding that in this particular case, the decision of whether the limitation period has been postponed requires a full hearing. The credibility of the plaintiff is a central issue that needs to be determined. The circumstances that this plaintiff faced in the years after she reached the age of majority and whether she could reasonably bring a claim must be assessed. The circumstances in this case warrant a fuller explanation and exploration of the evidence: Walsh at paras. 23 and 52. [80] The limitation defences will remain an issue to be determined at trial. Conclusion [81] The following orders are made: 1. The Plaintiff Application is granted in part. The plaintiff has leave to file the third amended notice of civil claim in the form attached as Appendix A to the plaintiff's notice of application filed April 8, 2025, except for the following: i. Paragraph 26 must not include the words: "The threats made by the RCMP members to the Plaintiff constituted an assault at common law". ii. Paragraphs 26 c. and e. must be clarified regarding the meaning of "targeting witnesses" and/or "non-suspects".

2. The MCFD has leave to apply to strike the third amended notice of civil claim.

3. The MCFD and MPSSG Applications are dismissed.

4. The issue of the expiry of the limitation period will be left for trial.

5. The costs of the applications will be in the cause. "Forth J."