M.(K.) v. M.(H.)

M.(K.) v. M.(H.)

Incest by a parent constitutes both the intentional tort of assault and battery and a breach of the parent‑child fiduciary duty; the tort claim is subject to limitation but the period does not begin to run until the plaintiff has a substantial awareness of the harm and its likely cause (reasonable discoverability), which in typical incest cases will often occur when the victim undergoes therapy; fiduciary claims are not within Ontario's enumerated statutory limitations and equitable defences (including laches) do not bar recovery on the facts here.

Citation
[1992] 3 SCR 6
Parties
Appellant: K.M.; Respondent: H.M.; Intervener: Women's Legal Education and Action Fund
Court
Supreme Court of Canada
Jurisdiction
Canada
Judgment Date
29 October 1992
Procedural Posture
Civil Appeal — Tort (assault and Battery) and Equitable Claim for Breach of Fiduciary Duty / Appeal to the Supreme Court of Canada From the Ontario Court of Appeal (trial Court Verdict and Limitations Motion Below)
Outcome
Appeal allowed
Legal Topics
Reasonable Discoverability Principle, Statute of Limitations (limitations Act), Laches/acquiescence, Accrual of Cause of Action, Remedies (damages and Punitive)
Source Language
English
Limitation of Actions Torts Equity Fiduciary Duty Fraudulent Concealment Sexual Assault/incest Reasonable Discoverability Principle Statute of Limitations (limitations Act) +3 more

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Parties

K.M.

Appellant

H.M.

Respondent

Women's Legal Education and Action Fund

Intervener

Procedural Posture

Civil Appeal — Tort (assault and Battery) and Equitable Claim for Breach of Fiduciary Duty / Appeal to the Supreme Court of Canada From the Ontario Court of Appeal (trial Court Verdict and Limitations Motion Below)

Legal Issues

  1. 1 Whether incest constitutes a distinct tort not subject to limitation
  2. 2 Whether incest by a parent is a breach of fiduciary duty and whether that claim is time‑barred
  3. 3 When a cause of action for childhood incest accrues for limitation purposes (reasonable discoverability)

Ratio Decidendi

Incest by a parent constitutes both the intentional tort of assault and battery and a breach of the parent‑child fiduciary duty; the tort claim is subject to limitation but the period does not begin to run until the plaintiff has a substantial awareness of the harm and its likely cause (reasonable discoverability), which in typical incest cases will often occur when the victim undergoes therapy; fiduciary claims are not within Ontario's enumerated statutory limitations and equitable defences (including laches) do not bar recovery on the facts here.

Court Disposition

Appeal allowed

Orders

  • Trial judge's limitations ruling set aside
  • Judgment entered for the appellant in the amount of CAD 50,000 (general damages CAD 10,000 and punitive damages CAD 40,000)