LeClair v. MacDonald

LeClair v. MacDonald Court Supreme Court Date 2024-12-31 Citation 2024 NSSC 399 Docket HFX No. 527118, HFX No. 527118 Judge/Registrar/Adjudicator Smith, Ann E. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: LeClair v. MacDonald, 2024 NSSC 399 Date: 20241231 Docket: HFX No. 527118 Registry: Halifax Between: Elizabeth LeClair Plaintiff v. Colin MacDonald Defendant Judge: The Honourable Justice Ann E. Smith Heard: January 24 and March 27, 2024, in Halifax, Nova Scotia Written Submissions: May 3 and June 28, 2024 Counsel: Gillian Hnatiw, for the Plaintiff Nancy Barteaux, K.C., for the Defendant By the Court: Introduction [1] This is the defendant’s motion to strike pleadings. [2] It has been said that pleading is an art. However, it is also a science in the sense that proper pleading has certain requirements. [3] Pleadings are important, especially when the pleading is a statement of claim. A plaintiff commences a civil lawsuit by filing a notice of action and a statement of claim. The statement of claims sets out the material facts the plaintiff proposes to prove, the relief they seek and the legal basis of the claim. At that point in time, when the claim is drafted and filed with the court, nothing is proven; the allegations against the defendant are just that – allegations. [4] However, those allegations must be founded in factual statements that assert a legal cause of action. [5] The case law and the Civil Procedure Rules inform the drafter of a statement of claim that they must plead material facts, not the evidence to prove the asserted facts. Depending on the nature of the claim and the allegations, the distinction between facts and evidence may be blurred. Opinions, argument, speculative facts and legal conclusions have no place in pleadings. That is the “science” part of pleading. It is, however, “science” and not “science-fiction”. Claims that are utterly unfounded in the sense that they have no factual basis and are not tethered to a legal cause of action are improper and stand to be struck out. [6] The “art” side of pleading means that there is a wide range of acceptable ways to plead a cause of action. Different drafters, including lawyers, have different styles of pleading. The important part of pleading is not the style or how a claim is plead, but the substance of what is plead. The cause of action and the material facts in support must be clearly set forth. A defendant needs to know the allegations against them in order to be able to file a defence to the claim and mount a defence to it at trial. [7] Before the defendant files a defence, they may apply to the court for an order that all or part of a claim be struck. There are various reasons why a portion of a claim might be struck by a court. One of those reasons is that a claim is out of time, that is, it has been filed too late to comply with limitations legislation. That legislation sets deadlines for the filing of different kinds of claims. [8] In general terms, a court hearing a motion to strike portions of a pleading must assume the facts as pled are true and must only strike the impugned part of the pleading if it offends the rules of proper pleading or if the claim as pled has no real chance of success. If a claim is filed too late under limitations legislation the court on a motion to strike must strike that claim. Background [9] The underlying claim at issue in this motion was brought by Elizabeth LeClair against Colin MacDonald. In the Statement of Claim (“the claim”) Ms. LeClair claims sexual misconduct, including sexual assault, on the part of Mr. MacDonald. Ms. LeClair alleges that the actions of Mr. MacDonald caused her various forms of harm. One of the claims against Mr. MacDonald is a claim for intentional infliction of mental distress. [10] Mr. MacDonald brings a motion to strike certain portions of the claim against him on various grounds. He says that certain of the sections of the claim contain irrelevant facts, are frivolous, vexatious or otherwise abusive, contain attacks against non-parties and plead evidence and opinion. [11] Mr. MacDonald also seeks to strike Ms. LeClair’s claim of intentional infliction of mental distress on the basis that it is out of time, that is, filed outside of the limitation period to bring such a claim. [12] Although I refer in this decision to Ms. LeClair’s “claim”, the pleading at issue is an Amended Statement of Claim issued on January 26, 2024. No defence has yet been filed because Mr. MacDonald is entitled to wait until the content of the claim is settled before doing so. Issues: [13] The issues before the Court are as follows: 1. Should the impugned sections of the claim be struck on the basis that they violate the rules of pleading? 2. Should Ms. LeClair’s claim of intentional infliction of mental distress be struck because it is statute barred by the Nova Scotia Limitations of Actions Act? 3. If the Court does not strike the claim for intentional infliction of mental distress on the basis of the limitation defence, should portions of the claim be struck on the basis that other rules of pleading are violated? [14] The Court will now review the applicable Civil Procedure Rules and the case law which will guide the Court’s analysis and ultimate decision on the motion. The Legal Framework [15] Civil Rule 38.02(1) provides that a pleading must “be concise” but must provide information sufficient to (a) allow the defendant to know the case they have to meet and (b) to not surprise the defendant when the plaintiff tries to prove a material fact. Rule 38.09(3) states that material facts must be pleaded, but the evidence to prove a material fact “must not be pleaded”. Rule 38.03(3) also states that a pleading must provide “full particulars” of a claim alleging unconscionable conduct, such as fraud, fraudulent misrepresentation, misappropriation, or malice. [16] Rule 4.02(4) requires that a statement of claim must notify the defendant of all the claims to be raised by the plaintiff at trial, and similar to Rule 38.09(3) requires that a statement of claim include the material facts relied on by the plaintiff “but not the evidence” by which the material facts are to be proven. Rule 4.02(4) also prohibits a statement of claim from containing “argument”. [17] Rule 88.03 provides that it is not an abuse of process to make a claim that may be unsustainable on the pleadings. However, another party may make a motion to strike that claim on the basis that it amounts to an abuse of process. [18] Some statements of claim are very short, only two or three pages. Other statements of claim are much longer. Here the statement of claim is approximately 12 pages in length. The length of a statement of claim does not mean, in and of itself, that the pleading lacks “conciseness”. [19] At times the distinction between “material” facts on the one hand and “supportive” facts, “subordinate” facts and even evidence may be blurred. [20] There are two helpful and recent decision of judges of the Nova Scotia Supreme Court which deal with pleadings, the rules related to pleadings and the case law relevant to striking pleadings. These are the decision of Justice John Bodurtha in Layes v. Bowes, 2019 NSSC 298 and the decision of Justice Christa Brothers in H & N Enterprises Inc., v. Novacation Inc., 2021 NSSC 191. There is no need for this Court to quote extensively from those decisions. However, based on these decisions, and others, I will summarize certain of the keys points a court must consider on a motion to strike a pleading: • A pleading must sufficiently inform the defendant of the case they have to meet; • A pleading must contain a reasonable cause of action – that is setting forth the material facts for the constituent elements of the claim; • Pleadings must be concise but provide enough information for the opposing party to understand the claim that must be met; • Material facts are to be pleaded but not evidence in proof of those facts; • Pleadings should not contain opinion, argument, or irrelevant facts; • The drafter of a pleading will be given some latitude; • There is a high standard to show it is plain and obvious that a pleading discloses no reasonable claim (Knowledge House Inc. v. Stewart McKelvey Stirling Scales, 2007 NSCA 113); • The pleading should not assert a cause of action against a non-party with no ability to deny or defend the claim; • The court has an inherent jurisdiction to strike pleadings which are oppressive, frivolous, vexatious, embarrassing or an abuse of the process of the court (Ayangma v. Prince Edward Island, 2005 PESCTD 25). • A pleading should be read generously; and • Pleading does not require perfection. [21] A pleading must also not be “scandalous”. In Capital Markets Technologies, Inc. v. Prince Edward Island, 2016 PESC 4, the Supreme Court of Prince Edward Island describes the nature of a “scandalous” pleading: [37] …a pleading can be scandalous when it is offensive, irrelevant, or, in addition, as in this case, constitutes a collateral attack asserting a cause of action against a non-party, leaving the non-party no ability to answer to the claim. [22] I find the following quote from the decision of the Ontario Supreme Court in Toronto (City) v. MFP Financial Services Ltd., 2005 CarswellOnt 3324 to provide helpful, principled guide posts to the approach a court should take when deciding whether a pleading offends one of the rules of pleading: 16 The answer to acceptable pleading may often be found by revisiting first principles. Our rules of pleading are intended to define and limit the issues in order to promote fairness, judicial economy and exposition of the truth. This must be done so that the court understands the dispute and the parties have fair notice of the case to be met and the remedies to be sought. Pleadings are important because they are the foundational documents on which the case rests and will shape the scope of relevance for both discovery and trial… The Application of the Pleading Rules to the Impugned Sections of the Statement of Claim Issue 1: Should the impugned sections of the Claim be struck on the basis that they violate the rules of pleading? [23] It is useful to discuss the elements of the tort of sexual assault before review of the impugned pleadings. [24] A.M. Linden et al, in Canadian Tort Law (12th ed. 2022) describes the tort of assault and its constituent elements as follows at p. 53: The tort of assault occurs where a defendant intentionally causes a plaintiff to apprehend imminent contact with her or his person. The tort protects a plaintiff’s right not to be subjected to that apprehension which, if present, will comprise an interference with the plaintiff’s right to psychological integrity and security of the person. Damages are recoverable by someone who is subjected to assault, therefore, even where the contact she or he apprehended never occurs. By protecting the individual’s right to psychological integrity and security of the person (including psychological security), assault is conceptually of-a-piece with the other direct interference torts discussed in this chapter. The required elements for the tort, discussed below, go to the nature of that right; merely being startled, for example, is substantively different from the kind of psychological experience that will interfere with the rights protected by the tort of assault. As in battery, (imminent) contact in the assault context is sometimes referred to as “offensive” or “harmful” because it has not been consented to (“offensive does not connote physical harm, although threats of physical harm are often factually present in assault cases). Indeed, a clearer re-formulation of the classic statement of the required elements for assault may be the intentional creation of the apprehension of an imminent battery… [25] Linden et al state at p. 45 of their text that: The tort of battery in Canada is sometimes referred to as “trespass to the person”. A person who proves that the defendant made direct physical contact with her person makes her case for battery. The onus then shifts to the defendant to establish that the contact was neither intentional nor negligent; or that the plaintiff consented to the contact. [26] The learned authors in Canadian Tort Law (p. 54) distinguish battery from assault, noting that “an assault can be committed without a battery, however, and battery can occur without an assault preceding it”. Further in their text, at p. 56 the learned authors note that “words may transform an apparent assault into innocent behaviour and, conversely, they maty render actionable conduct which would otherwise be harmless”. The authors further note (p. 57): The ability to execute a threat need not actually be present, so long as it appears to a reasonable plaintiff that it is there. If a person is reasonably apprehensive of imminent physical contact, even though in no real danger of that happening, there may still be recovery for assault. [27] With that general review of the required elements of the tort of assault, the Court will now review the impugned paragraphs of the claim. The Pleading Contains Evidence, Immaterial Facts, Opinion and Legal Submission/Argument [28] Before referring to the impugned pleadings, it is useful to situate these pleadings by reference to the opening paragraphs of the claim: The Parties 1. The plaintiff, Elizabeth LeClair (“Liz”) is a fundraising professional currently residing in Dartmouth, Nova Scotia. 2. The defendant, Colin E. MacDonald (“MacDonald”), is the co-founder and former Chairman of Clearwater Seafood Incorporated. Background 3. In 2013, Liz accepted a job as Manager of Annual Giving at the IWK Foundation, a registered charitable organization that raises funds to support the IWK Health Centre in Halifax, Nova Scotia. In this role, Liz managed third party and grassroots fundraising for the Foundation. 4. At all material times, MacDonald was (and is) a major donor to the IWK Foundation, which has bestowed him with the title of Honourary Trustee. 5. Liz’s role at the IWK Foundation required her to regularly meet, communicate and attend events with major donors, including MacDonald. 6. Liz first met MacDonald in or around July of 2013 in connection with a $1,000,000 donation that an Antigonish-based donor was making to the IWK NICU redevelopment project. MacDonald was responsible for securing this significant donation and was closely involved in the project. MacDonald was also the point person for the donations made to the IWK Foundation by Clearwater Seafood Incorporated which was one of IWK’s major gift portfolios. [29] Paragraph 7 - The first objection to the pleading is contained in paragraph 7 which is the first paragraph under the heading “MacDonald’s Sexually Inappropriate Conduct”. The underlined portions is language which Ms. LeClair says contains evidence and immaterial facts: MacDonald’s Sexually Inappropriate Conduct 7. Within the first few meetings, MacDonald who, in addition to being a wealthy and powerful donor, was married, and also 31 years Liz’s senior – began making sexual comments towards her. These comments were unwelcome, unprofessional and made Liz acutely uncomfortable. However, given MacDonald’s importance to the IWK Foundation, she tried to brush them off and focus on her work. [30] Ms. LeClair’s counsel says that the claim is one of sexual assault, and more particularly, Ms. LeClair’s fear that Mr. MacDonald would sexually assault her. Counsel says that in those circumstances, Ms. LeClair is required to plead sufficient facts to demonstrate that Ms. LeClair had a reasonable apprehension of imminent harm to support the cause of action pled. Counsel says that Ms. LeClair has done so by pleading the existence of a gendered power dynamic between the parties and a related course of sexual misconduct that built up over several years. [31] In response, Mr. MacDonald says the material fact in paragraph 7 is that he allegedly made sexual comments towards Ms. LeClair. He says that the reference to him being a wealthy, powerful donor, married and 31 years Ms. LeClair’s senior are irrelevant to the tort plead, and are also evidence, not material facts. [32] In the context of the claim, read as a whole and generously, I find that the impugned sections of paragraph 7 should not be struck. In a claim of alleged sexual assault, it is appropriate that a plaintiff plead that she found the comments said to be sexual in nature “unwelcome” and “unprofessional” and that they made Ms. LeClair feel uncomfortable. The fact that Ms. LeClair thought that the comments were “unprofessional” doesn’t rise to the level of opinion evidence. [33] I also find that it is appropriate, and not in violation of the rules of pleading, for a plaintiff in an action for sexual assault to state that the defendant was wealthy, a powerful donor and years older than she was. The fact that a defendant is “married” seems to be on the cusp of what could be relevant, but I decline to strike it given the overall gist of the claim that the conduct was unwelcome in the context of a power differential between the parties, all of which is claimed set the stage for Ms. LeClair’s fear of sexual battery or harm of a sexual nature. [34] Further, this is a claim for sexual assault where Ms. LeClair says that Mr. MacDonald’s course of conduct from July 2013 to April 8, 2014, which she says involved “prolonged and repeated sexually inappropriate conduct towards her”, together with what happened during their drive together to Antigonish and back on April 8, 2024, constitutes the tort of sexual assault (para 32 of the claim). Ms. LeClair pleads that she reasonably feared that Mr. MacDonald’s conduct would escalate to sexual battery (para. 32 of the claim), although this part of para 32 is objected to by Mr. MacDonald. [35] Paragraph 8 also contains allegedly inappropriate reference to evidence or facts that are not material to the tort alleged: 8. Over the months that followed, MacDonald continued making inappropriate sexual comments to Liz during phone calls, at meetings, in text messages and in email communications. Liz did her best to avoid, deflect and deescalate his advances as she feared upsetting one of the IWK Foundation’s most significant donors. [36] Mr. MacDonald says that the second sentence in this paragraph contains evidence. He says that the material fact appears to be that there were allegedly more inappropriate comments. Mr. MacDonald says that Ms. LeClair’s alleged reaction to this material fact is meant to demonstrate and prove that these alleged comments were inappropriate and that this constitutes evidence, not material facts. [37] Ms. LeClair says that her fear of upsetting one of her employer’s most significant donors is a material fact relevant to power imbalance between the parties and her inability to avoid Mr. MacDonald. Ms. LeClair says that this power differential is also directly relevant to the harms she suffered. [38] I will not strike the second sentence in paragraph 8. I conclude that it is a material fact that Ms. LeClair tried to avoid upsetting a significant donor of her employer, in the context of her claim that she reasonably feared that Mr. MacDonald would sexually assault her. [39] Paragraph 9- Mr. MacDonald says that this paragraph contains direct quotes attributed to him and that these are clearly evidence. Mr. MacDonald also says that what Ms. LeClair says she did in supposed reaction to his alleged comments also constitutes evidence meant to prove that the comments were inappropriate. Paragraph 9 provides: 9. In February 2014, during a meeting in a coffee shop, Liz and MacDonald discussed a large donation that MacDonald helped the IWK Foundation secure. Liz mentioned that she would be driving to Antigonish in the spring to deliver a thank you gift to the donor. MacDonald announced he would join her on the trip and then suggested she would “owe him”. Afterwards, MacDonald sent Liz an email containing sexual innuendos about what might happen on this drive to Antigonish. Liz tried to deescalate and deflect his comments with jokes. [40] Here, the Court agrees with Ms. LeClair. Mr. MacDonald’s supposed comment that Ms. LeClair would “owe” her, is a material fact relative to her claim of sexual assault. It suggests a quid quo pro which may be relevant to her overall claim. While quotes attributed to a party may often constitute evidence when they appear in a pleading, and on that basis should be struck, in this case, in the context of the overall claim of sexual assault, particularity around what Mr. MacDonald supposedly said to Ms. LeClair on this occasion is an important part of her overall claim against him. [41] The Court is unsure if the use of the word “announced” in the third sentence in paragraph 9 is at issue. If it is, the Court finds no difficulty with its use in this paragraph. This is a matter of style. Whether the drafter used the term “said” or “announced” the overall meaning is the same. If the word “announced” is at issue, on the basis that it suggests a level of authority on the part of Mr. MacDonald, the Court allows the word to remain as related to the alleged power differential and Ms. LeClair’s fear of harm. [42] Nor does the Court find the last sentence in paragraph 9 to constitute evidence, as suggested by Mr. MacDonald. Again, in the context of this claim and the allegation of sexual assault by a person in a position of power over another, there is a materiality to facts that set forth Ms. LeClair’s response to the comments which Mr. MacDonald allegedly made. [43] Paragraph 10 – This paragraph and several paragraphs which follow set forth facts relating to a car trip to Antigonish Ms. LeClair and Mr. MacDonald made together on April 8, 2014. Mr. MacDonald says that the underlined portions of paragraph 10 contain evidence as to why Ms. LeClair was supposedly uncomfortable during the drive to Antigonish: The Antigonish Incident: MacDonald Sexually Assaults Liz 9. Although she was deeply uncomfortable at the prospect of driving to Antigonish with MacDonald, she did not feel she could prevent him from joining her at the meeting given his importance to the IWK Foundation and his connection to the Antigonish donor. Thus, on the morning of April 8, 2014, Liz and MacDonald left from the Clearwater Seafoods headquarters in Bedford together on the trip. At MacDonald’s insistence, he drove them in his car. [44] The Court finds that the underlined portions are relevant to the alleged power imbalance between the parties, which is relevant to the claim of sexual assault and Ms. LeClair’s apprehension of harm. I also find that use of the word “insistence”, i.e., that Mr. MacDonald allegedly insisted that the two use his car for the drive, is also material to the same issues – the power that Ms. LeClair says that Mr. MacDonald had over her and the supposed use of that power to conduct himself in the manner he allegedly did. In addition, it is to be expected that a certain amount of narrative appear in a claim of this nature which relates what happened during a car ride. None of this is objectionable from a pleading perspective in the circumstances of a claim framed as the tort of sexual assault. [45] Paragraph 11 – Mr. MacDonald objects to the underlined portions of this paragraph on various bases which are set out below: 11. During the two-and-a-half hour drive, MacDonald made increasingly inappropriate sexual comments, including if she ever thought about having sex with him. Horrified by these questions, Liz feared angering MacDonald and felt unable to express her disgust while confine to his car. [46] Mr. MacDonald says that specifics of what was allegedly said during the car ride is evidence which attempts to prove that the alleged inappropriate comments were made. He says that Ms. LeClair’s reaction and thoughts on what was allegedly said is also evidence which seeks to prove that the alleged comments were inappropriate. [47] This Court disagrees. I find nothing objectionable about the words “increasingly inappropriate” as descriptors of the alleged “sexual comments”. It is a relevant fact that Ms. LeClair says that there was an escalation in the alleged comments of a sexual nature made by Mr. MacDonald in the context of her claim that she feared that he would sexually assault her. That is a key part of her claim. Further, the particulars of what Mr. MacDonald allegedly said to her that caused her to fear that she would be harmed, is directly relevant to her claim of sexual assault. The last sentence in paragraph 11 provides facts relevant to Ms. LeClair’s overall claim of sexual assault in a relationship with a power imbalance and in circumstances where she says she had a growing fear of harm. The fact that Ms. LeClair felt that she was “confined” in the car, are facts relevant to her apprehension of harm. [48] Paragraph 12 – Mr. MacDonald objects to the underlined portions of this paragraph: 12. After arriving in Antigonish and meeting with the donor, MacDonald announced that they could finally “get down to business” and made a direct sexual proposition to Liz. [49] The Court finds that Mr. MacDonald’s alleged words, that they could finally “get down to business” which Ms. LeClair says preceded Mr. MacDonald’s alleged direct sexual proposition are relevant to her claim that she feared that he would sexually assault her. Mr. MacDonald was allegedly in a position of authority over Ms. LeClair. Saying that they would “get down to business” in the context of a business trip to a thank a donor and following that up with a direct sexual proposition is relevant to the overall claim of a fear or apprehension of sexual assault. In a claim of this nature, particulars of what was said are not prohibited by the rules of pleading. [50] Paragraph 13 – Mr. MacDonald objects to the underlined portions of this paragraph on the basis that it is opinion. 13. At this point, as MacDonald clearly was not joking, Liz explicitly told him that she would not have sex with him and expected to go directly home. MacDonald became sullen and angry. Trapped in his car during the drive home, Liz feared MacDonald would fore himself on her sexually. [51] Here, I agree with Ms. LeClair’s position that Mr. MacDonald’s reaction is relevant to Ms. LeClair’s reasonable apprehension of imminent harm during this car ride, as is that part of the pleading where Ms. LeClair says that she felt “trapped” in his car. This is not improper opinion evidence, as alleged by Mr. MacDonald. The fact that Ms. LeClair viewed Mr. MacDonald as “angry”, “sullen”, and “not joking” is material to her claim of fear of harm by sexual assault. [52] Paragraph 14 - 14. When they finally arrived back in Bedford around 2 PM., Liz got into her car and immediately began to cry. She was relieved to have escaped MacDonald but traumatized by what he had forced her to endure. Her hands were shaking as she drove herself home. [53] The pleading that Ms. LeClair was traumatized by the experience is a material fact relevant to the claim of sexual assault and damages. [54] Paragraph 15 – 15. Thereafter, Liz tried to avoid interacting with MacDonald as much as possible and ensured any meetings occurred in a public place. MacDonald nonetheless continued his sexual advances towards her, despite knowing they were unwelcome and unwanted. [55] This part of the claim relates to facts relevant to Ms. LeClair’s IIMD claim. Since the Court has found that that claim is statute-barred, the Court strikes paragraph 15 on that basis. [56] Paragraph 16 – 16. Liz discussed MacDonald’s sexual misconduct with multiple senior people at the IWK Foundation, many of whom told her that MacDonald was “known” for this kind of behaviour. They minimized MacDonald’s egregious conduct and told her to focus on doing her job. None of them encouraged her to make a formal complaint or report. [57] Ms. LeClair says that the facts in this paragraph are relevant to her IIMD claim as well as the claim for punitive damages. Ms. LeClair also says that these facts are pled in order to illustrate the power imbalance between the parties. [58] The Court strikes this paragraph. Here I agree with Mr. MacDonald that the facts in this paragraph attack non-parties to the litigation. Ms. LeClair has elsewhere stated other facts that, if proven, could be sufficient to establish the power imbalance in her relationship with Mr. MacDonald. [59] Ms. LeClair says that these facts also relate to her claim for punitive damages in terms of the allegation that Mr. MacDonald’s conduct was supposedly flagrant and outrageous and whether that alleged conduct merits denunciation and deterrence. Again, there are sufficient facts pled elsewhere in the claim to possibly found a claim in punitive damages, if proven. [60] Paragraph 17 – 17. In 2017, Liz left the IWK Foundation for the role of Senior Development Officer at Dalhousie University’s Faculty of Engineering. She hoped her move would bring an end to MacDonald’s sexual misconduct from MacDonald, she soon learned that MacDonald was a multi-million-dollar donor to the Faculty’s ideaHUB incubator. [61] The Court strikes this paragraph, with the exception of the first sentence. The first sentence is arguably relevant to Ms. LeClair’s claim for damages. However, the remainder of the paragraph contains, as Ms. LeClair states, facts relevant to her claim of intentional infliction of mental damages (IIMD). Later in this decision the Court sets out its reasons for striking the claim for IIMD. On that basis all but the first paragraph of paragraph 17 is struck. [62] Paragraph 18- 18. Liz tried to avoid having any direct contact with MacDonald. However, in the fall of 2018, she learned the Faculty was having trouble getting in touch with MacDonald in connection with his ongoing donations. For the sake of her job, Liz agreed to help make contact with MacDonald. [63] This paragraph relates solely to Ms. LeClair’s claim for IIMD and is struck. [64] Paragraph 19 – 19. On December 20, 2018, Liz met with MacDonald at a coffee shop to give him a thank you gift in recognition of his contributions to the ideaHUB. At this meeting, MacDonald again made inappropriate sexual comments to Liz. Liz began to cry and told MacDonald she could no longer cope with his continued harassment. Thereafter, Liz refused to have any further contact with MacDonald. [65] The facts in this paragraph relate to Ms. LeClair’s claim for IIMD. Paragraph 19 is struck, with exception of the final sentence. [66] Under the heading, “The Defendant’s Liability” and the subheading, “Sexual Assault”, Mr. MacDonald objects to the following underlined portions of the noted paragraphs: Paragraph 32 – 32. MacDonald’s course of conduct toward Liz from July of 2013 leading up to, and including, the Antigonish incident on April 8, 2014 constitutes the tort of sexual assault. MacDonald’s prolonged and repeated sexually inappropriate conduct towards Liz, combined with MacDonald’s conduct during the drive that day caused Liz to fear imminent harm of a sexual nature. MacDonald explicitly propositioned Liz and talked about stopping at a hotel to have sex. MacDonald was angry after Liz refused his sexual advances, and Liz reasonably feared that his conduct would escalate to sexual battery. Liz was terrified and traumatized by this incident. [67] Paragraph 33 – 33. MacDonald’s sexual advances towards Liz were not consensual on Liz’s part. Her lack of consent was or should have been obvious to MacDonald’s given Liz’s words and conduct in response to the advances. In addition, her lack of consent would have been obvious given the age and power differential between them. In the alternative, any apparent consent by Liz was not genuine or legally valid consent in that it involved an improper exercise of his power as a key donor to the IWK Foundation. [68] Mr. MacDonald says that the underlined portions of these paragraphs are further examples of the pleading of evidence of what was allegedly said and done during the car ride and meeting. Mr. MacDonald says that the material fact that Ms. LeClair appears to be pleading is that there was allegedly inappropriate behaviour on his part. He says that the pleading then lists the reasons why that alleged behaviour was inappropriate and argues that that behaviour was inappropriate because it was objectively obvious that there was no consent. Mr. MacDonald says that para. 33 reads as written submissions and legal argument rather than a properly drafted pleading. [69] The Court disagrees with Mr. MacDonald’s position. In para. 32, Ms. LeClair connects the material facts that she has previously pled to the elements of the tort of sexual assault. In the context of this tort, these facts are material and do not constitute evidence. Further, Ms. LeClair has pled lack of consent because consent may be a defence to the tort of sexual assault. If it turns out that that Mr. MacDonald’s defence does not plead consent, then that part of para. 33 which pleads Ms. LeClair’s lack of consent or lack of a legally valid consent would be irrelevant to the claim and would stand to be struck. The Court has already indicated that pleading the power differential between Ms. LeClair and Mr. MacDonald is relevant to the tort of sexual assault. [70] Paragraphs 34 and 35: 34. MacDonald’s entire course of sexual misconduct toward Liz from 2013-2018, including the Antigonish incident, constitutes the tort of intentional infliction of mental distress. 35. MacDonald knew his sexual misconduct towards Liz was certain to, or would in all likelihood, cause her lasting psychological damage that would manifest in various harmful ways throughout her life. MacDonald’s sexual misconduct was flagrant, outrageous and deliberate. MacDonald intended to cause Liz harm, and harm resulted from his conduct. [71] Mr. MacDonald objects to the entirety of paragraphs 34 and 35, each of which falls under the heading, IIMD. Paragraphs 34 and 35 are struck for the reasons in that part of the decision which deals with the limitation period and the claim for IIMD. [72] Under the heading, “Punitive Damages”, Mr. MacDonald objects to portions of the following paragraphs: Paragraph 39 – 39. MacDonald has never faced any sanction or punishment for the trauma he knowingly caused to Liz. [73] Ms. LeClair says that this claim is relevant to the claim for punitive damages. Mr. MacDonald says that this is an attack on a non-party to the litigation and, further, constitutes evidence. [74] The Court finds that para. 39 sets out facts that involve a non-party to the litigation, and as such is struck. Ms. LeClair has elsewhere pled other facts which she may argue support her claim for punitive damages, so striking this paragraph does not mean that she cannot pursue a claim for punitive damages. [75] Paragraph 40 – 40. The calculated, highly intrusive, and exploitative nature of the sexual assault and sexual harassment perpetrated by MacDonald on Liz, which involved a fundamental betrayal of trust and an exploitation of Liz’s dependency and vulnerability, entitles Liz to a substantial award of punitive damages. [76] Ms. LeClair says that this pleading (i.e. of sexual harassment) is relevant to the claim for IIMD for reasons set forth in her written submissions. As noted previously, the claim for IIMD is struck for reasons set out later in this decision. As a result, the words “sexual” and “harassment” are struck from para. 40. [77] Paragraph 41 – 41. MacDonald behaved with impunity knowing that his status as a major donor at the organizations that employed Liz would allow him to avoid any consequences for his years-long sexual misconduct. His conduct merits denunciation, punishment and deterrence. [78] Ms. LeClair says that pleading that Mr. MacDonald’s status and power allowed him to behave with impunity relates to both the sexual assault claim and the IIMD claim and that she claims punitive damages with respect to both. [79] Mr. MacDonald says that para. 41 contains evidence and involves allegations against non-parties to the litigation. [80] The Court allows the last sentence in para. 41 to be pled because it may be relevant to the claim for punitive damages. However, the first sentence contains statements about what Mr. MacDonald allegedly knew and what organizations Ms. LeClair had been employed with would supposedly do or not do. This is all entirely speculative, does not contain material facts related to the claim of sexual assault and on that basis is struck. [81] Paragraph 43 – 43. The plaintiff’s claims related to MacDonald’s sexual misconduct towards Liz and her claims against him for sexual assault, as well as claims for intentional infliction of mental distress arising from sexual assault. As Liz’s action is based on misconduct of a sexual mature, it is not subject to any limitation period pursuant to section 11(a) of the Limitation of Actions Act. [82] The underlined portion of para. 43 is struck on the basis that the claim for IIMD is struck for the reasons set forth later in this decision. [83] Under the heading “Relief Sought”, Mr. MacDonald objects to the underlined portions of paragraph 44 (e): 44. The plaintiff claims an Order against the defendant, Colin E. MacDonald, providing the following remedies: … (e) an amount to be specified by the Ministry of Health & Wellness in relation to costs borne by the Medical Services Insurance Plan (“MSI”), if any, arising from the negligence or other wrongful act(s) of the defendant; [84] The underlined portion of para. 44 is struck. Ms. LeClair has not plead negligence against Mr. MacDonald and on that basis, this part of the pleading is irrelevant. [85] The Court will now address the issue of whether the claim of IIMD should be struck on the basis that it is statute barred under the Limitation of Actions Act. Issues 2 and 3: 2. Should Ms. LeClair’s claim of intentional infliction of mental distress be struck because it is statute barred by the Nova Scotia Limitations of Actions Act? 3. If the Court does not strike the claim for intentional infliction of mental distress on the basis of the limitation defence, should portions of the claim be struck on the basis that other rules of pleading are violated? [86] As noted earlier in this decision, Ms. LeClair’s claim includes an allegation of intentional infliction of mental distress related to the tort of sexual assault. If the disputed claim is not excluded under section 11 of the Nova Scotia Limitation of Actions Act, 2014, c. 35, s. 1 (LAA), it will be statute-barred. Ms. LeClair says s. 11(a) governs all claims in the proceeding because “this is a proceeding in respect of claims in relation to sexual assault”. [87] Mr. MacDonald says s. 11(a) only pertains to the claims it specifies: trespass to the person, assault, or battery. As authority for the court’s power to strike a pleading in these circumstances, the defendant relies on Pollier v. Laushway, 2006 NSSC 165, where the court struck a pleading on the ground of a limitations defence under the previous Civil Procedure Rules and the predecessor Limitation of Actions Act. [88] Ms. LeClair says the construction of s. 11(a) is a novel legal issue that should not be disposed of on a pleadings motion, unlike the situation in Pollier, where there was “well-stablished case law” on the relevant limitation period. [89] The parties agree that there is no reported Nova Scotia caselaw interpreting s. 11(a) and the language is unique to this Act. [90] Mr. MacDonald denies that this is a novel point of law which requires trial. [91] The Court notes that Abella J. said, for the majority, in Nevsun Resources Ltd. v. Araya, [2020] 1 SCR 166: [131] This proceeding is still at a preliminary stage and it will ultimately be for the trial judge to consider whether the facts of this case justify findings of breaches of customary international law and, if so, what remedies are appropriate. These are complex questions but, as Wilson J. noted in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959: The fact that a pleading reveals “an arguable, difficult or important point of law” cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law . . . will continue to evolve to meet the legal challenges that arise in our modern industrial society. [pp. 990-91] [Emphasis added] [92] Mr. MacDonald submits that this is not a “difficult and important point of law”, but a straightforward question of statutory interpretation. [93] As Mr. MacDonald points out, the issue in Pollier – whether an action to enforce a foreign judgment was a simple contract debt subject to a six year limitation period, or a judgment subject to a twenty-year limitation period – required the chambers judge to undertake extensive analysis of a point not previously decided in order to decide whether the pleading could stand. Pollier supports the view that a court can determine an applicable limitation period on a motion to strike, even where this requires relatively rigorous statutory analysis. [94] I agree with Mr. MacDonald on this point. The interpretation issue in Pollier had no clear answer on the face of the legislation, and had not been directly addressed in the caselaw. It required extensive consideration of authorities from multiple jurisdictions. By contrast, provisions equivalent – if not identical – to s. 11(a) have been interpreted by courts in several Canadian provinces. This is essentially a matter of statutory interpretation, if not a simple or obvious one. It does not require evidence. I see no reason why it cannot be dealt with at this stage. Positions of the parties on the Interpretation of Section 11 The Plaintiff: Ms. LeClair [95] Ms. LeClair says this is remedial legislation “aimed at broadening the ability of sexual abuse victims to bring their claims to court” and that it “should not be narrowly interpreted”. She submits that s. 11(a) applies to her claim for intentional infliction of mental distress “[t]o the extent the ... claims for sexual assault and IIMD arise from the same alleged misconduct”. Ms. LeClair argues that if s. 11(a) applies only to the enumerated torts, a plaintiff could not advance related claims without reference to the limitation period, “contrary to the remedial purpose of section 11(a)”. Ms. LeClair contends that, as such, a claim “in relation to” an alleged sexual assault is not limited to that specific tort, but can apply where the claim “relates to” a sexual assault, with the same conduct potentially constituting multiple claims pleaded concurrently, including intentional infliction of mental distress. [96] Ms. LeClair also says a restrictive construction would insulate institutions from direct liability in claims brought in respect of associated individuals. The Defendant: Mr. MacDonald [97] Mr. MacDonald submits that the plain and ordinary meaning of s. 11(a) does not extend beyond eliminating limitation periods for the enumerated causes of action. According to this interpretation, the words “in relation to” describe the claim brought in respect of the enumerated torts, and is merely an alternative way of indicating that the exception is for proceedings for the claims listed. [98] Mr. MacDonald says that even the broad and liberal interpretation required for remedial legislation imposes “reasonable limits on any interpretation, even while keeping these principles of interpretation in mind” (Paolucci v. John Doe et al., 2015 ONSC 7675, at para. 22, in the context of insurance coverage.) [99] Mr. MacDonald points to “the well-established principle that the legislature does not speak in vain” (Canada (Minister of Citizenship and Immigration) v. Vavilov, [2019] 4 S.C.R. 653, at para. 45) in support of the argument that the direct reference to the torts of trespass to the person, assault, and battery must have meaning, and that meaning is restricted to those specific torts. [100] According to Mr. MacDonald, Ms. LeClair’s construction of s. 11(a) leads to absurd results. First, he says that it follows from that construction that a related claim – such as the intentional infliction of mental distress claim in this case – can only fall within the s. 11(a) exception if it is brought concurrently with a claim of assault or battery based on misconduct of a sexual nature. If the situation were reversed, and an IIMD claim were brought without an accompanying enumerated claim, the free-standing IIMD claim would not be covered by s. 11(a), resulting in “two identical claims based on the same set of facts” being treated differently. [101] At this point, the Court notes that Mr. MacDonald’s hypothetical seems to assume that a plaintiff, being a victim of sexual assault, would choose to forgo a sexual assault claim, and instead advance a claim for IIMD arising from the same conduct. [102] However, if Ms. LeClair’s interpretation of s. 11(a) is correct, any non-enumerated cause of action will arise from one of the enumerated claims. Whatever the correct interpretation of s. 11(a) may be, it is clearly not an open-ended exception for claims relating to any form of “sexual misconduct”, without reference to one of the enumerated claims. [103] Mr. MacDonald says that a second allegedly absurd outcome of Ms. LeClair’s interpretation is that any time-expired claim could be pleaded as a proceeding in respect of a claim in relation to assault (or, presumably, trespass or battery) based on misconduct of a sexual nature, simply by pleading assault and alleging “misconduct of a sexual nature.” The claim would thereby be immunized from dismissal on limitations grounds. Mr. MacDonald admits that this would not shield the assault claim from being dismissed as frivolous and vexatious on a pleadings motion. He insists, however, that it would defeat the purpose of the LAA to allow a party to bypass all limitation periods. [104] This Court notes, however, that this second alleged “absurdity” is no more than an illustration of basic principles of civil procedure. To deliberately advance a claim unrelated to the material facts in the pleading – which seems to be the premise of the hypothetical – will obviously lead to a successful motion to strike. The fact that the claimant was trying to circumvent a limitation period may well sound in costs. The speculative possibility that a party might commit what sounds like a potential abuse of process in order to take advantage of a limitations exception is not a reason to read the statute narrowly. [105] In terms of Ms. LeClair’s submission that a restrictive construction would insulate institutions from direct liability in claims brought in respect of associated individuals, Mr. MacDonald responds that this is irrelevant to this proceeding, and that any “undesirable effects of the LAA are a matter for the legislature, not the Courts...”. Law and Analysis The plain language of s. 11(a) [106] The “modern principle” of statutory interpretation requires that “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Re Rizzo & Rizzo Shoes Ltd., [1998] 1 SCR 27, at para. 21. [107] Section 11 of the LAA creates an exception to the presumptive limitation period for proceedings in respect of certain claims based on “misconduct of a sexual nature”: 11 Section 8 does not apply to a proceeding in respect of a claim in relation to trespass to the person, assault or battery if: a) the claim is based on misconduct of a sexual nature [Emphasis added.] [108] Section 8 sets out the general two-year limitation period within which a “claim” must be brought. Section 2 defines “claim” as “a claim to remedy the injury, loss or damage that occurred as a result of an act or omission” (s. 2(1)(a)). A claim is brought “when a proceeding in respect of the claim is commenced” (s. 2(2)(a)) or where added to an existing proceeding by a new or an amended pleading (s. 2(2)(b)). [Emphasis added.] [109] It is noteworthy that section 8 frames limitation periods in respect of claims, not causes of action or specific legal characterizations of (for instance) torts. A claim requires injury, loss, or damage, caused by or contributed to by an act or omission of the defendant, that is sufficiently serious to warrant a proceeding (s. 8(2)). It does not require a specific legal characterization. Nevertheless, section 11 does particularize the claims it relates to, namely trespass to the person, assault or battery. [110] The use of the tort categories of “trespass to the person, assault or battery” requires clarification in respect of their relationship to the claim for intentional infliction of mental distress in this case. I have been provided with no caselaw suggesting that a claim for IIMD falls within the “trespass” category, but the point has been addressed in secondary authorities. The authors of Canadian Tort Law, supra, write that “this action was derived from the action on the case. Consequently, it is not actionable without proof of actual harm” (pp. 108-109). Similarly, the authors of Remedies in Tort remark that the requirement for actual damage makes “intentional infliction of nervous shock ... distinct from a direct trespass to the person, such as assault and battery, where damage is presumed” (Lewis N. Klar, et al., Remedies in Tort, vol. 1 (Thomson Reuters: looseleaf) at §10:7. [111] G.H.L. Fridman, in The Law of Torts in Canada, 3d edn (Toronto: Carswell, 2010) states that “[r]ecent developments reveal that the tort of trespass to the person may extend to cover instances that do not fall within the confines of the historical categories of battery, assault, and false or wrongful imprisonment. The author then goes on to discuss intentional infliction of nervous shock in a chapter titled “forms of trespass to the person” (61-62, 69-73). There is no principled discussion of why this tort would be so classified, and in my view the comments by Linden and Klar are more convincing. Hansard [112] The parties did not initially provide the Court with materials from Hansard as part of their arguments. The Court obtained same and provided these to counsel for comment. The Court received further submission from counsel thereafter. [113] Section 11 was addressed in the House of Assembly when the new Limitation of Actions Act was being introduced and debated. The Minister of Justice said the following on second reading, after describing the two-year presumptive limitation period that would be introduced in the new legislation: ... [T]his bill does not impose time limits for victims of sexual assault and domestic violence who want to file law suits. There is one exception in the bill where time limits will not apply. The existing Act gives a one-year limitation period for sexual assault claims. There are a variety of exceptions that could suspend the limitation period, but they are difficult to understand and to apply. So I’m pleased that we are able to put forward a bill that better protects and respects the rights of victims in this case. In addition to eliminating time limits for victims of sexual assault and domestic violence, the bill also does not set limits for assaults involving dependants or people in intimate relationships... [Nova Scotia House of Assembly, Debates and Proceedings (Hansard), October 30, 2014, at 1757.] [Emphasis added] [114] Speaking in support of the bill, the Minister of Community Services said: I’m glad that this government recognizes the importance of removing any time limits to pursue actions in cases involving sexual assault and indeed for any assault involving dependents or people involved in intimate relationships, even if not in a sexual nature. Based on my previous work and experiences, I know that this change is particularly appropriate because people may not be ready to come forward immediately. Often, an assault produces a state of mind that needs to process what has happened. A survivor of childhood abuse may be unable to name what happened until the affected individual becomes an adult. There can never be a legislated time frame on healing. Survivors need to know that they can feel safe in coming forward at any stage, including years later. Sexual assault is an affront to human dignity, no matter where or when it occurs. [Hansard, October 30, 2014, at 1759-1780.] [Emphasis added.] [115] The Minister’s remarks were of a similar tenor to those on second reading. In closing the debate, she said: Mr. Speaker, the new Limitation of Actions Act that we are introducing that was introduced earlier in this session is a significant step forward with respect to sexual assault claims. This bill eliminates limitation periods altogether for any claims involving sexual assault, as well as assault of someone who is financially, physically or emotionally dependent. The adoption of the new discoverability provisions will also assist victims of abuse. [Hansard, November 14, 2014, at 2637.] [Emphasis added.] [116] These remarks are consistent with the government’s statements throughout second and third reading. The focus was on the need to eliminate limitation periods for victims of historic sexual assault. The general tenor of these statements leaves little doubt that the legislators were focused on the broad phenomenon of victims of abuse, not the legal specifics of particular claims. The Court notes that these passages are of limited value in interpreting the text, but it should be noted that the Minister of Justice referred to “sexual assault and domestic violence.” Comparative limitations statutes [117] In The Law of Limitations Graeme Mew and Daniel Zacks discuss enactments such as section 11 of the LAA “that specifically address sexual misconduct or sexual assault. There is no limitation period with respect to causes of action arising from sexual assault in these jurisdictions” [Graeme Mew, Debra Rolph, and Daniel Zacks, The Law of Limitations, 4th edn (Toronto: LexisNexis, 2023) at 317; [emphasis added.] The authors note the variations that exist in the language of the various statutes: Applying these statutory provisions may be complex, because they are designed to cover a number of situations, ranging from non-sexual assault in certain defined cases, to incest. Scenarios which may be covered by these provisions include non-sexual assault where the victim is a minor, or is an intimate relationship with the perpetrator, or is financially dependent on a perpetrator; sexual assaults where the victim and the perpetrator are strangers; sexual assaults where the victim is a minor, or in the charge of the perpetrator, or dependent on the perpetrator, with other scenarios possible. Statutes may also refer to “sexual assault” and “misconduct of sexual nature” without clearly differentiating between the two. Assault, sexual assault, and misconduct of a sexual nature may be dealt with by outright abolition of any limitation period, or by stipulating special presumptions with respect to discoverability, or with respect to the plaintiff’s capability of bringing an action. The appropriate statute must be carefully considered in each case [Law of Limitations at 313.] [Emphasis added.] [118] Ms. LeClair says the existence of provisions comparable to s. 11(a) in other jurisdictions supports the view that s. 11(a) should be interpreted broadly. Mr. MacDonald maintains that extra-provincial legislation is irrelevant to the interpretation of Nova Scotia legislation. More substantively, Mr. MacDonald says the language of other statutes is “entirely different” from s. 11(a) and that there is no evidence that the legislature was influenced by legislation in other provinces when enacting the LAA. [119] The limitations legislation of most Canadian jurisdictions includes provisions resembling s. 11(a), with variations in specific language: British Columbia: “This Act does not apply to the following: ... (j) a claim relating to sexual assault” (Limitation Act, S.B.C. 2012, c. 13, s. 3(1)(j)); Alberta: “There is no limitation period in respect of (a) a claim that relates to a sexual assault or battery” or “(b) a claim that relates to any misconduct of a sexual nature, other than a sexual assault or battery...” (Limitations Act, R.S.A. 2000, c. L-12, ss. 3.1(1)(a) and (b)) Saskatchewan: “There is no limitation period with respect to a claim in the nature of trespass to the person, assault or battery if ... the claim is based on misconduct of a sexual nature” (The Limitations Act, S.S. 2004, c. L-16.1, s. 16(1)); Manitoba: “No limitation period applies to the following claims: (a) a claim relating to an assault of a sexual nature” (The Limitation Act, C.C.S.M. c. L150, s. 18(1)(a)); Ontario: “There is no limitation period in respect of ... (h) a proceeding based on a sexual assault” or “a proceeding based on any other misconduct of a sexual nature” where the defendant was, inter alia, in a position of trust or authority. (Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, ss. 16(1)(h) and (h.1)); New Brunswick: “There is no limitation period in respect of a claim for damages for trespass to the person, assault or battery if the act complained of is of a sexual nature” (Limitation of Actions Act, S.N.B. 2009, c. L-8.5, s. 14.1); Prince Edward Island: “There is no limitation period in respect of (a) a claim that relates to a sexual assault or battery” or “(b) a claim that relates to any misconduct of a sexual nature, other than a sexual assault or battery” (Statute of Limitations, R.S.P.E.I. 1988, c. S-7, ss. 5.1(1)(a) and (b)); Newfoundland and Labrador: “where misconduct of a sexual nature has been committed against a person” under certain conditions, “there shall be no limitation period and an action arising from that sexual misconduct may be brought at any time” (Limitations Act, S.N.L. 1995, c. L-16.1, s. 8(2)); Yukon: “The following actions are not governed by any limitation period and may be brought at any time: (a) a cause of action based on misconduct of a sexual nature, including without limitation, sexual assault”, and “(b) a cause of action based on sexual assault...” (Limitation of Actions Act, R.S.Y. 2002, c. 139, ss. 2(3)(a) and (b)); Northwest Territories and Nunavut: “(1) ... "action" means an action for trespass to the person, assault, battery, wounding or other injury to the person where the cause of action is based on conduct of a sexual nature. (2) The limitation period ... does not apply in respect of an action where one of the parties had an intimate relationship with the aggrieved person, had a relationship of trust with the aggrieved person or was someone upon whom the aggrieved person was dependent” (Limitation of Actions Act, R.S.N.W.T. 1988, c. L-8, and R.S.N.W.T. (Nu) 1988, c. L-8, s. 2.1(1)). [120] According to Ms. LeClair, s. 11(a) “combines the language used by other provinces” in applying to a “proceeding” in addition to “assault or battery based on sexual misconduct”. She says the Prince Edward Island, Alberta, British Columbia, Manitoba, Newfoundland and Labrador, and Ontario provisions “broaden the scope of the exception beyond a particular cause of action” to apply to the “claim”, the “action” and the “proceeding as a whole”. [121] The Court notes that Ms. LeClair’s broad-brush approach does not account adequately for the specifics of the language used in the various statutes. More precisely, Prince Edward Island and Alberta use “a claim that relates to”; Manitoba and British Columbia, “a claim relating to...”, the enumerated claim, usually sexual assault or battery. Structurally, they do not track the Nova Scotia language, with its double requirement of a claim relating to trespass to the person, assault, or battery and which is based on misconduct of a sexual nature. [122] Other jurisdictions have enacted provisions that either contain no enumerated claims or which expressly indicate that the enumerated claims are not exclusive. The Newfoundland and Labrador Act provides that notwithstanding any relevant limitation period (ss. 5, 6, 7, and 9), no limitation period applies to “misconduct of a sexual nature...”. Similar language appears in the Yukon statute (“misconduct of a sexual nature, including without limitation, sexual assault”). Those in the other territories also provide an open-ended definition by inserting the words “or other injury to the person” after “trespass to the person, assault, battery, wounding...” The Ontario act states, in respect of the exception for (among others) “a proceeding based on a sexual assault” (s. 16(1)(h)), that “[f]or greater certainty, clauses (1) (h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability” (s. 16(1.3)). [123] The parties focused particularly on certain authorities out of Saskatchewan and New Brunswick. Saskatchewan [124] A predecessor to the current exception was considered in F.(B.) v. Saskatchewan Rivers School Division No. 119, 2000 SKCA 117. Pursuant to s. 3(3.1) of the The Limitation of Actions Act, R.S.S. 1978, c. L-15, a person was “not governed by a limitation period and may at any time bring an action for trespass to the person, assault or battery where ... the cause of action is based on misconduct of a sexual nature...”. The plaintiff in F.(B.) commenced an action against the province and the school division for negligence, breach of fiduciary duty, and breach of statutory duty, as well as vicarious liability against the school division, arising from sexual assaults by a teacher. The issue was whether s. 3(3.1) applied to the claims in negligence and vicarious liability. [125] The chambers judge in Saskatchewan Rivers had cited Parmley v. Parmley, [1945] S.C.R. 635, in holding that trespass could result from negligence, and applied the provision to the claims. However, the Saskatchewan Court of Appeal reversed. Relying on authorities such as M.(K.) v M.(H.), [1992] S.C.R. 3, the Court of Appeal held that “necessary elements of an action for trespass include the direct application of force by the defendant to the person of the plaintiff and intention on the part of the defendant with respect to the consequences of his wrongful act. The distinction between an action for trespass to the person and other torts, including an action for negligence, remains alive and well in Canada” (para. 18). As to the interpretation of s. 3(3.1), the court said: [20] The distinction made by the legislators between the causes of action upon which a limitation period was imposed in ss. 3(1)(d), and the causes of action which are then exempted from the limitation period by ss. 3(3.1), is clearly based on the common law distinction between trespass to the person on the one hand, and all other torts, including negligence, which involve injuries to the person, on the other hand, the same distinction which has been preserved in Cook v. Lewis [[1951] S.C.R. 830] and M.(K.) v M.(H.)... [21] In respect of the action against Saskatchewan, there is no allegation that it or any person for whom it may be vicariously liable either directly applied force to the plaintiff or intentionally inflicted injury upon the plaintiff. The action cannot, accordingly, be characterized as one for trespass, assault or battery and it is not caught by the exemption in ss. 3(3.1), and is subject to the limitation period specified in ss. 3(1)(d). [126] Mr. MacDonald submits that Saskatchewan Rivers should be followed here. [127] The current Saskatchewan provision, s. 16(1)(a) of The Limitations Act, S.S. 2004, c. L-16.1, states: 16(1) There is no limitation period with respect to a claim in the nature of trespass to the person, assault or battery if: (a) the claim is based on misconduct of a sexual nature... [128] This language tracks the Nova Scotia provision more closely than any other. [129] Subsection 16(1) was considered in B.H. v. Dattani, 2010 SKCA 1. The plaintiff brought an assault and battery claim, alleging that she did not provide informed and voluntary consent for an abortion performed by the defendant doctors after she was impregnated by her father. She also alleged breach of fiduciary duty, claiming that the doctors failed to notify the authorities about the abuse by her father. The issue was the application of s. 16(1)(b), which applies the s. 16(1) exception where, inter alia, “at the time of the injury on which the claim is based ... the claimant was in a relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury.” [130] The Saskatchewan Court of Appeal held that the chambers judge did not err in holding that the fiduciary duty claim was statute-barred by a limitation period for professional services under the Medical Profession Act (para. 39). However, the chambers judge had not considered the potential relevance of section 16 to the assault and battery claim. The Court of Appeal held, based on a proposed pleading amendment, that “the analysis must proceed on the basis that B.H. was in a relationship of emotional and physical dependency on the Doctors. It follows that [s. 16(1)(b)(ii)] is applicable to her assault and battery claim and that the claim is not statute-barred” (para. 50). [131] However, Dattani is vague on the question of non-enumerated torts. The Court of Appeal did not describe how the chambers judge analyzed the fiduciary duty claim under s. 16, and the chambers decision is unreported. At most, Dattani implies that the chambers judge held that the fiduciary duty claim did not fall within the s. 16 exception, and that the Court of Appeal saw no error in this. [132] In Zhang v. Wehner, 2023 SKCA 22, the Saskatchewan Court of Appeal again dealt with s. 16(1)(b). The plaintiff appealed a chambers decision striking a claim for assault and battery for being statute-barred. The plaintiff alleged that two defendants, SW and DW, had restrained him, while KW assaulted and battered him. The Court of Appeal held that the chambers judge erred in failing to consider s. 16(1)(b). It was not plain and obvious on the pleadings that SW and the plaintiff were not in an intimate and personal relationship and a relationship of financial and emotional dependency. This could not be said with respect to the other defendants. However, s. 16(1)(b) used the phrase “one of the parties who caused the injury” in describing the relationships, suggesting, on plain and ordinary meaning, that it only required “that a single defendant who is alleged to have caused the injury to have been in such a prescribed relationship for the s. 5 general limitation period not to apply to a claim against any other defendant who also caused the injury” (para. 20). Embarking on a statutory construction analysis, the Court of Appeal said: [26] The underlying purpose or rationale of limitation periods in general, and The Limitations Act specifically, is to provide for certainty and repose for potential defendants, relieve parties from the adverse consequences of evidentiary issues that can arise as a result of the passage of time, and to encourage diligence on the part of claimants... Section 16 of The Limitations Act creates an exclusion that stands out from this overall purpose. [133] After reviewing statements in Hansard and a uniform limitations act, the court said: [30] When s. 16 is read in the context of The Limitations Act as a whole, and considering these passages, it is possible to discern its purpose. It is to provide particularly vulnerable plaintiffs with an exception to the general limitation period that would otherwise bar claims based on sexual misconduct or claims for other types of physical abuse, which occurred in certain types of relationships. It provides relief against the harsh and arbitrary consequences of the standard limitation period for a class of plaintiffs who often face significant disadvantages and barriers to expeditiously bringing such claims. The court concluded: [33] Considering all of this, I am left to conclude that the Legislature intended that persons who participated in violence such as is alleged in the matter at hand would not benefit from limitation periods. If it had wanted to restrict the application of this exception to only the defendant who was in the described relationship with the plaintiff, it could have easily done so. Instead, it chose to use, in both provisions, the phrase one of the parties who caused the injury. In my view, this choice of broader language, in the context of the precarious situation faced by vulnerable victims of abuse and the purpose of s. 16 ... was meant to expand the class of persons to whom the exception applies and, at a minimum, to remove the benefit of a limitation period for any party who directly participated in the actual perpetration of such violence. This fits well with the overall purpose of s. 16. [34] ... It would run counter to the purpose of s. 16 to find that a victim of domestic abuse should have unlimited time in which to sue their abusive former spouse, but must adhere to strict time limits with regard to other perpetrators who directly participated in the same acts of abuse. The barriers faced by such a plaintiff are not qualitatively different in relation to the two different types of defendants. [134] The Court of Appeal emphasized the limited scope of the ruling, being specific to its precise facts: [35] I wish to make clear the limits to the ruling in this case. For the purposes of this judgment, it is sufficient to conclude that, when a defendant actively participates in a joint physical attack on a plaintiff, at a time when the plaintiff is in a relationship with one of the other defendants as described in s. 16(1)(b)(i) or s. 16(1)(b)(ii), and the physical encounter causes the injuries that are the subject of the claim, there is no limitation period applicable to a claim for trespass to the person, assault, or battery as against the defendants who acted in concert. I would leave to another day any question about the application of s. 16(1)(b) in other circumstances that might arise in future cases. [135] Dattani and Zhang speak to the purpose of provisions such as section 11 of the LAA, but neither speaks to the extension of the subject matter coverage of the exception beyond the enumerated claims for trespass to the person, assault, or battery. The emphasis of the Court of Appeal on the limited effect of its decision in Zhang is a reminder that a remedial purpose is not a license to interpret legislation in the most expansive way possible without regard to the actual words of the statute. Accordingly, even a remedial provision will have limits on its scope. New Brunswick [136] Section 14.1 of the Limitation of Actions Act, SNB 2009, c L-8.5, provides that “[t]here is no limitation period in respect of a claim for damages for trespass to the person, assault or battery if the act complained of is of a sexual nature.” On its face, a claim “for” a specified tort appears limited to the named cause of action. [137] In Hayes v. City of Saint John et al, 2024 NBKB 61, the claim was a class action against the city in vicarious liability and in negligence arising from sexual assaults by a municipal employee who had worked as a police officer and a city works employee. The plaintiff argued that s. 14.1 displaced the limitation period because the assaults were of a sexual nature. The city argued, inter alia, that the coverage of s. 14.1 was restricted to the enumerated claims, and that it was “not the court’s job to imply wording into the legislation to broaden it when the Legislature chose not to do so, particularly given that Alberta (2000), Saskatchewan (2004), Ontario (2002) and Newfoundland (1995) had already enacted similar provisions in their limitations statutes using language that is broader than that found in New Brunswick’s LAA” (paras. 16-20). [138] The court in Hayes rejected the narrow construction of the word “for”, and dismissed the submission that “for” had a meaning distinct from phrases such as “relating to”, “based on” or “arising from”, as used in other statutes (para. 29), reasoning that this would defeat the legislative purpose: [30] That interpretation, however, would neuter the effect and undermine the intent of this remedial amendment given that, as alluded to by Stevenson, J. in [R v. L (W.K.), [1991] 1 S.C.R. 1091] many, if not most, claims where the act complained of is of a sexual nature involve delay, often considerable delay, in reporting. [31] The intent of section 14.1 was expressed by Justice Minister Burke who, in introducing the Bill containing the provision on June 17, 2009, made the following comments found at page 52 of Hansard: Hon. Mr. Burke: The following amendment is a proposed new section 14.1. One of the submissions made to the law amendments committee urged us to say that claims relating to sexual assault should not be subject to a limitation period. This has been done in some provinces, but not in others. I am proposing that it should be done here. [underlining in Hayes.] [32] I recognize that excerpts from Hansard should not be given undue weight because, among other things, the comments of a Member may not fully represent the “intent” of the Legislature: see Rizzo Shoes, supra at para. 35. However, they should not be ignored either. As Bastarache, J. stated in Castillo v. Castillo 2005 SCC 83 at para. 23: ... It is now well accepted that legislative history, Parliamentary debates and similar material may be quite properly considered as long as they are relevant and reliable and not assigned undue weight. [33] Considering the genesis of this legislative change, the wording of section 14.1, section 17 of the Interpretation Act, supra. and the comments of Justice Minister Burke, I find that the Legislature intended this provision to apply, not just to cases of trespass to the person, assault or battery where the acts complained of were of a sexual nature but also to cases where those torts were the “main ingredient” as the court in [P.(J.) v. Sinclair (1997), 148 D.L.R. (4th) 472 (B.C.C.A.)] described it. [Emphasis added.] [139] The court concluded that “the Legislature intended this provision to apply, not just to cases of trespass to the person, assault or battery where the acts complained of were of a sexual nature but also to cases where those torts were the ‘main ingredient’” (para. 33). [140] The vicarious liability claim was captured by s. 14.1, on the basis that the “acts complained of” were “the elements of the torts that are listed in the section, not the elements necessary to impute liability for the torts to a party other than the tortfeasor” (para. 42). Based on definitions of “for”, the court said, a claim “for... assault” was “not necessarily restricted to an action claiming direct liability for assault... [I]t can also include an action “in relation to”, “in respect of” or “regarding” an assault such as claims of vicarious liability which are based on an assault” (para. 45). This was also the case for negligence, where “the sexual assaults are the main ingredient of the cause of action...” (para. 50). This conclusion was bolstered by the definition of “claim”, which was identical to that in the Nova Scotia LAA: [51] Moreover, to restrict the interpretation of section 14.1 to the three intentional torts named therein would also require that I ignore the definition of the word ”claim” as in “a claim for damages …”. “Claim” is defined in the LAA as follows: “claim” means a claim to remedy the injury, loss or damage that occurred as a result of an act or omission. [52] Clearly, then, a “claim” includes not only acts but also omissions which almost always form the basis of unintentional torts but are less likely to be elements of any of the three intentional torts named in section 14.1. Therefore, presuming that the Legislature intended the word “claim” to have the meaning assigned to it under the Act and keeping in mind section 17 of the Interpretation Act, supra., as well as the Supreme Court’s directions in Rizzo Shoes, supra., I find that section 14.1 has a broader meaning than the interpretation urged by the City, one that is broad enough to include negligence claims. [141] The city argued that the section was “clear and unambiguous and that the implied exclusion rule of statutory interpretation captured by the maxim expressio unius est exclusio alterius ... should be applied in determining the legislature’s intent” (para. 53). The court held that “the legislative intent, as informed by the genesis of this legislative change, the comments of Justice Minister Burke and the directive in section 17 of the Interpretation Act supra., outweighs this principle of statutory interpretation in this case and I decline to apply it” (para. 55). [142] The court in Hayes relied on P.(J.) v. Sinclair (1997), 148 D.L.R. (4th) 472 (B.C.C.A.), where the plaintiff had brought an action against a school district for negligence and vicarious liability on account of sexual assaults by a teacher. The relevant provisions of the 1979 British Columbia Limitation Act stated that there was no limitation period “for a cause of action based on misconduct of a sexual nature, including, without limitation, sexual assault” occurring while the person was a minor (s. 3(k)) or “for a cause of action based on sexual assault...” (s. 3(l)). Carrothers J.A. held that the employer’s vicarious liability was covered by the provision, holding that “where, as here, the wrongful acts resulted in the same damage and one of the wrongful acts is sexual misconduct then the definition ... must necessarily be broad enough to allow a victim to seek compensation from all persons whose acts or omissions contributed directly or indirectly to the damage suffered” (para. 7). Newbury J.A., concurring, held that the words “based on misconduct of a sexual nature” also encompassed the employer’s negligence: 17 Again, while I have considerable sympathy for the plight of a defendant in the position of the School Trustees in this case, I am driven to the conclusion that the wording employed by the legislative draftsperson in s. 3(3)(k) is broad enough to include the negligence action being advanced in this case. As the trial judge noted in her reasons, the phrase "based on" connotes something that serves as a foundation "or starting point and a main or important ingredient". The sexual misconduct here is a main ingredient of the cause of action in negligence, in that no action would lie for negligent hiring or supervision without that component. In this sense, it seems to me this action is fairly described as "based on" the employee's misconduct. We would be taking an unnecessarily narrow and technical view if we were to restrict the section only to causes of action consisting of sexual misconduct. Further, it would be an anomalous result if we were to rule that s. 3(3)(k) includes vicarious liability (i.e., liability that arises without any fault on the part of the employer) but that it does not include negligence on the employer's part. [143] Mr. MacDonald submits that the legislative language makes Sinclair distinguishable. The British Columbia legislation did not list specific torts. [144] Clearly the open-ended statutory language in Sinclair (“a cause of action based on misconduct of a sexual nature”) has little relevance to the more specific language of the Nova Scotia Act. [145] Mr. MacDonald argues that Hayes is bad law. Specifically, the defendant disputes the Court of Appeal’s holding that the phrase “a claim for damages for trespass to the person, assault or battery” in the New Brunswick legislation includes “a claim for any act where but for trespass to the person, assault or battery, the circumstances forming the basis of the claim could not have happened”. Mr. MacDonald does not object to the Hayes reasoning respecting vicarious liability and submits that it is irrelevant to whether an independent tort is covered by the exclusion. Given the divergent statutory language, Mr. MacDonald adds, reliance by the New Brunswick court on Sinclair was an error. Further, the court in Hayes did not distinguish F.(B.) v. Saskatchewan Rivers School Division No. 119, 2000 SKCA 117 (defendant’s supplementary brief at 5). [146] In the alternative to finding that Hayes was wrongly decided, Mr. MacDonald argues that it is distinguishable. The court in Hayes held that the sexual assaults were “the main ingredient of the cause of action in negligence. It is ‘based on’ or ‘related to’ the sexual assaults without which there would be no claim” (para. 50). By contrast, IIMD, as an intentional tort, “stands independently with its own requirements and does not require any other events to have occurred outside the conduct alleged to constitute the intentional tort”. The defendant argues that assault and IIMD have different elements, existing “entirely independently of each other”; the existence of the IIMD claim does not depend on the actions alleged to constitute assault. [147] It follows, Mr. MacDonald says, that in Sinclair and Hayes the courts could find that claims for the relevant intentional torts were a “main ingredient” of a negligence claim. In Saskatchewan Rivers, by contrast, the claim for breach of fiduciary duty alleged an intentional tort “not reliant on any conduct outside that which is claimed to constitute the tort” (defendant’s supplementary brief at 7-8). Analysis and Findings on Limitation Issue [148] The caselaw leaves little controversy as to the legislative purpose of exempting tort claims such as those identified in section 11 of the LAA from limitation periods. Consistent with the statements in the Nova Scotia Hansard excerpts above, the various legislatures clearly intended to recognize that claims for torts based on “misconduct of a sexual nature” will often not be advanced until presumptive limitation periods have passed, and these provisions acknowledge that perpetrators of such acts should not benefit from the repose provided by a limitations defence. However, this broad statement of intent does not tell us the precise scope of the exception. [149] A further aspect of the limitation exception based on sexual torts is that there will, not infrequently, be an institutional dimension which implicates employers and other institutions, such as churches, in a position to supervise or enable those who commit such acts. The caselaw supports the view that such institutions may become liable, at least vicariously, but potentially also for negligence and breach of fiduciary duty, where that potential liability has as a “main ingredient” the trespass, assault, or battery. [150] The Nova Scotia language – “a proceeding in respect of a claim in relation to...” –to this Court is broad enough to encompass institutional liability arising directly out of the specific torts committed by the abuser, since the substance of the wrong committed would be the trespass, assault, or battery. In this Court’s view, however, that liability is tied directly to the torts enumerated in section 11: it is the institution’s responsibility for the trespass to the person, assault, or battery that establishes its liability. [151] This leads to the specific issue in this case. I am not persuaded that section 11 extends to claims in relation to causes of action not expressly mentioned. I do not think the language can support Ms. LeClair’s interpretation. The legislature chose to identify specific intentional torts to which the exception attaches. Had it intended to remove the limitation period for all forms “misconduct of a sexual nature” it would have been a simple matter to draft the statute to express that. The examples from other jurisdictions listed earlier provide numerous examples. Ms. LeClair’s argument appears to be that the additional torts, such as the IIMD pleaded in this case, must in some way be related to an enumerated one. This causes more confusion than it resolves. As Mr. MacDonald notes, this would mean that the exception would apply if the additional claim was pleaded alongside an enumerated tort, but not if it was pleaded on its own. [152] I believe Ms. LeClair’s theory strains the language of section 11 in order to make it accord with the legislative purpose of the exception. But there is no reason to assume that the legislative purpose was intended to remove all limitation periods for misconduct of a sexual nature. The statements of the Minister of Justice cited earlier refer to victims of sexual assault. For whatever reason, the legislature chose to limit the scope of the exception to claims in relation to the direct torts mentioned. While this may trigger forms of liability for third parties, as noted above, I am not convinced it can extend to torts independent of trespass to the person, assault, and battery. [153] The Court has dealt with issue 3 in the context of determining whether various portions of the claim should be struck. [154] As a result, I strike paras. 15, 16, 17, (except first sentence), 18, 19, (except final sentence), 34, 35, 39, 40, (words “sexual harassment” only), 41, (except final sentence) 43, (words “as well as claims for intentional infliction of mental distress arising from sexual assault” only), and the words “arising from the negligence” in para. 44. Conclusion [155] The claim for IIMD is struck as being filed outside the time limit established by the LAA. Section 11 of the LAA does not create an exemption for this tort. [156] The paragraphs of the claim which related to this tort are struck. The paragraphs of the claim which violate the rules of pleading for other reasons are also struck. [157] On balance, Mr. MacDonald has been the more successful party. Accordingly, he is entitled to costs reflective of the fact that he was not wholly successful. If the parties cannot agree on costs, the Court will receive written submissions within thirty (30) calendar days of this decision. Smith, J.