In a recent article, Dr. Samuel Beswick (Desautels Centre Affiliated Researcher and Assistant Professor, Peter A. Allard School of Law, University of British Columbia) critiques the error-of-law exception in the limitation principle of discoverability and highlights the importance of teaching limitation periods in law school. The article is published in (2020) 57.2 Osgoode Hall LJ 295-341.
Canada’s limitation laws are newly reformed, incrementally developing, and complicated. Yet, limitation law tends to get short shrift at law schools. I worry that some students graduate from law school without ever having thought about how limitation statutes can bar the creative and complex causes of action they encounter in classes. No one should think the topic unimportant. When I entered legal practice I learned that for every lawyer limitations is an imperative consideration. I dedicate a full class of 1L Torts to the topic under the theme of “how not to get sued for professional negligence.” The BC Court of Appeal’s judgment in Aubichon v. Grafton, 2022 BCCA 77 illustrates why. Mr. Aubichon was the alleged victim of police brutality during an arrest in February 2016. Several criminal lawyers advised Aubichon not to file a civil claim until after both his own criminal charges and a Crown Prosecution Service decision to charge the arresting officer had been resolved. The arresting officer was charged in July 2020. That same month, Aubichon filed a tort claim against the officer and the Crown.
The BC Limitation Act provides that “a claim must not be commenced more than 2 years after the day on which the claim is discovered.” The officer applied to strike out Aubichon’s claim as time-barred: Aubichon should have sued within two years of his arrest. That is when he knew or ought to have known the basis of his civil claim. Aubichon, in response, pleaded that it took years before he realised that, in the language of section 8(d), “a court proceeding would be an appropriate means to seek to remedy the injury, loss or damage” he had suffered. He gave evidence that:
“In my mind, as an Aboriginal youth, I believed that being beaten by the police was part of the course of being arrested. Hence the reason why it did not clue to me that there was any prospect of taking action against Grafton.”
The Court recognised that the Canadian error-of-law exception to the principle of discoverability seemingly favoured the officer, saying:
“Error or ignorance of the law or the legal consequences of the facts in issue do not postpone the running of a limitation period as individuals are presumed to know the law.”
I have criticised this exception in the Osgoode Hall Law Journal as lacking any solid foundation in the law.
The Court nevertheless considered that since there was no BC precedent on the proper interpretation of section 8(d) in this context and that the issue was complex, the case should go to trial. It characterised the issue in the case as engaging “the broad range of circumstances that may cause an individual plaintiff, on account of their upbringing, education, personal circumstances or subjective beliefs, to be unaware that the law offers them a cause of action for some wrong.”
Current precedent—including a materially similar case from Alberta—does not favour Aubichon’s claim. That is not really his fault. Was he not carelessly advised by his previous lawyers? Tort law does not depend on criminal law. Police officers are citizens in uniform. A claimant may sue an abusive officer—in battery, false imprisonment, intentional infliction of mental suffering, negligence—regardless of whether the officer is separately tried and convicted of a crime. Knowledge of the outcome of adjacent criminal proceedings is not essential to commence a claim.
The real problem with most provincial limitation laws is that in many cases two years is simply too short a period to assess one’s litigation prospects adequately. Perhaps a three-year time-bar would be fairer. But that is not the law. Lawyers overlook this at their (clients’) peril.