Limitations Laws and Gender-Based Violence Torts

Jennifer Koshan

4 hours ago

Case Commented On: LeClair v MacDonald, 2026 NSCA 18 (CanLII)

PDF Version: Limitations Laws and Gender-Based Violence Torts

The Supreme Court of Canada is currently considering whether to accept a new tort of family violence. Ahluwalia v Ahluwalia was argued in February 2025 and the Court’s decision is anxiously awaited by family law and torts lawyers and professors, anti-violence advocates, and survivors of family violence. As Deanne Sowter and I wrote in an ABlawg post in September 2023, this new tort was initially recognized by the Ontario Superior Court and then rejected by the Ontario Court of Appeal (see Ahluwalia v Ahluwalia, 2022 ONSC 1303 (CanLII); 2023 ONCA 476 (CanLII)). The Court of Appeal’s rationale was that the existing torts of assault, battery, and intentional infliction of mental distress (IIMD) covered the conduct at issue in Ahluwalia, so it was unnecessary to recognize a new tort. Courts in Alberta have followed the ONCA decision and denied claims for the tort of family violence where other torts were available (see e.g. Colenutt v Colenutt, 2023 ABKB 562 (CanLII)).

These cases can also raise issues with respect to limitation periods. Limitation periods are meant to promote the objectives of encouraging diligence in bringing legal claims once a potential plaintiff has “discovered” the claim and protecting defendants from stale claims (see here at 46-47). Most provinces and territories have amended their legislation to explicitly remove limitation periods for some civil claims related to sexual violence and intimate partner violence. The objectives of such amendments will be discussed in more detail below, but generally they recognize the unique barriers that arise in bringing such claims, and the notion that perpetrators of gender-based violence should not benefit from those barriers.

In Alberta, for example, the Limitations Act, RSA 2000, c L-12, was revised in 2017 to provide that:

3.1(1) There is no limitation period in respect of

(a) a claim that relates to a sexual assault or battery,

(b) a claim that relates to any misconduct of a sexual nature, other than a sexual assault or battery …

Clauses (b) and (c) are restricted to removing limitation periods for sexual misconduct and assault or battery against a minor, intimate partner, dependent, or person under a disability. Section 3.1(1)(c) has been interpreted not to apply to IIMD in the context of intimate partner violence on the basis that IIMD is a tort that is distinct from assault and battery (see Colenutt at para 77). As I suggested in an earlier post, if this narrow approach to the interpretation of limitations legislation is followed, it means that a new tort of family violence might also be subject to existing limitation periods where it includes conduct beyond assault and battery or sexual misconduct against an intimate partner, such as coercive control. Alternatively, if family violence continues to be separated into discrete torts (assault, battery, sexual misconduct, IIMD) then a narrow application of limitations legislation would again mean that some claims involving the same parties and similar conduct are subject to limitation periods and some are not, which was the result in Colenutt.

A different approach was taken in a recent decision from the Nova Scotia Court of Appeal, which leaves open the possibility that limitations legislation can be interpreted by courts to exempt IIMD from limitations periods when it is related to an underlying claim of sexual assault that is exempt. This post discusses the Court of Appeal’s reasoning in LeClair v MacDonald, 2026 NSCA 18 (CanLII) (LeClair NSCA) and its implications for a new tort of family violence.

Facts and Procedural History

LeClair v MacDonald involved a professional rather than intimate partner context. Elizabeth LeClair (the Plaintiff), a fundraising professional for different institutions, alleged that between 2013 and 2018, Colin MacDonald (the Defendant), a “significant charitable donor”, engaged in “sexual innuendo, unwanted advances, and harassment” (LeClair NSCA at para 4). She filed a statement of claim in 2023 alleging that the Defendant had committed the torts of sexual assault and IIMD. With respect to the connection between the two claims, the Plaintiff argued that the Defendant’s “entire course of sexual misconduct” towards her “constitutes the tort of intentional infliction of mental distress” (at para 2). The Defendant then brought a motion seeking to strike certain portions of the Statement of Claim, relying amongst other arguments on Nova Scotia’s Limitation of Actions Act, SNS 2014, c 35 (LAA).

The LAA generally provides a two-year limitation period for claims in relation to injury, loss, or damage caused or contributed to by a defendant’s act or omission (see section 8). However, section 11 of the LAA removes this limitation period for certain types of claims:

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)

The Defendant argued that because the LAA does not explicitly mention IIMD in the torts that are exempt from limitation periods in claims concerning sexual misconduct, the IIMD claim was statute-barred and should be struck (at para 20). The Plaintiff replied that this issue should not be decided on a motion to strike, as it involved a novel statutory interpretation question that had not been addressed in previous jurisprudence (at para 21). The Plaintiff also noted that the Defendant had not provided evidence that would support his suggested interpretation of the LAA, such as legislative history and Hansard debates probative of legislative intent (at para 22). Alternatively, the Plaintiff urged a broad interpretation of section 11(a) in keeping with its remedial nature that would include IIMD within the section’s exemptions (at para 23).

Justice Ann E. Smith of the Nova Scotia Supreme Court noted that on a motion to strike, the court 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” (2024 NSSC 399 (CanLII) (LeClair NSSC) at para 8). The latter basis for striking includes the claim being “filed too late under limitations legislation” (at para 8). Justice Smith ruled that it was appropriate to consider the limitations issue raised by section 11(a) on a motion to strike because it was “essentially a matter of statutory interpretation, if not a simple or obvious one” (at para 94). Although stating that evidence was not required, she took it upon herself to undertake research to provide context for the addition of section 11(a) and asked counsel for submissions on this material.

Taking the modern approach to statutory interpretation from Re Rizzo & Rizzo Shoes Ltd., 1998 CanLII 837 (SCC), [1998] 1 SCR 27, Justice Smith began with the text of the LAA and read sections 8 and 11 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” (at para 106, quoting Rizzo at para 21). She noted that section 8 frames limitation periods in terms of claims rather than specific causes of action, while section 11 particularized specific claims that were to be exempted from limitation periods (trespass to the person, assault and battery) (at para 109). Justice Smith’s research indicated that torts scholars are divided on whether trespass to the person torts include IIMD, and she found more convincing the traditional opinion that they are not (at paras 110-111). She also cited passages from Hansard at the time section 11(a) was adopted, which left “little doubt that the legislators were focused on the broad phenomenon of victims of abuse, not the legal specifics of particular claims” (at para 116). Moreover, the removal of limitation periods recognizes that tort claims by victims of abuse “will often not be advanced until presumptive limitation periods have passed, and … that perpetrators of such acts should not benefit from the repose provided by a limitations defence” (at para 148). However, Justice Smith went on to find that “this broad statement of intent does not tell us the precise scope of the exception” (at para 148). Finally, she reviewed similar reforms to limitations legislation in other jurisdictions and their interpretation in case law, finding no cases specifically on point. She highlighted differences in statutory language which supported the view that Nova Scotia’s legislation was more limited than that in some other provinces in requiring both “a claim relating to trespass to the person, assault, or battery and … [the claim being] based on misconduct of a sexual nature” (at para 121, emphasis in original). For these reasons, Justice Smith ultimately accepted the Defendant’s argument that section 11(a) did not “extend to claims in relation to causes of action not expressly mentioned”; otherwise the legislature would have framed the language differently, as in some other jurisdictions (at para 151). She accordingly struck the Plaintiff’s IIMD claim, and the Plaintiff appealed.

Court of Appeal Decision

Writing on behalf of himself and Justices Elizabeth Van den Eynden and Carole Beaton, Chief Justice Michael Wood found certain procedural defects in the Defendant’s motion to strike that affected the approach of Justice Smith (LeClair NSCA at para 41). Neither the Defendant nor Justice Smith cited the applicable rule of the Civil Procedure Rules, rule 13.03(1)(c), which stipulates that where a motion to strike is not supported by evidence, summary judgment on the pleadings is only available where the claim is “clearly unsustainable when the pleading is read on its own.” The motion judge should have asked whether the Plaintiff’s argument that section 11(a) extended to the IIMD claim “was clearly unsustainable and had no chance of success” (at para 55). Put differently, the motion should have been dismissed if Justice Smith “found there was potential merit to the argument that s. 11(a) applied to Ms. LeClair’s action” (at para 49).

Citing Supreme Court of Canada case law, the Court of Appeal noted that the purpose of summary judgment based on pleadings “is to weed out unmeritorious claims so that the defendants and the courts are not subject to abuse” while at the same time allowing courts to consider potentially meritorious claims, including novel claims that would allow the common law to develop incrementally (at para 52, citing Nevsun Resources Ltd. v Araya, 2020 SCC 5 (CanLII); R v Imperial Tobacco Canada, 2011 SCC 42 (CanLII); Atlantic Lottery Corp Inc v Babstock, 2020 SCC 19 (CanLII)). The Court pointed to Justice Smith’s own research into legislative history, comparable legislation in other provinces, and case law, which suggested that she “found the statutory interpretation question to be challenging” (at para 56). They also noted her reference to academic experts who came to conflicting conclusions on whether trespass to the person torts include IIMD (at para 57). Beyond these indications of a viable issue to be tried, the Court of Appeal found that striking the IIMD claim would have little impact on the length and complexity of the proceedings, given that the factual basis of the IIMD allegations were woven together with the allegations of sexual assault and battery (at para 58). These policy reasons also supported maintaining the claim for IIMD on the basis that it was not “clearly unsustainable”, and the Court of Appeal overturned Justice Smith’s decision on this issue.

Commentary

I noted above how in Colenutt, the court took a similar approach to Justice Smith in not allowing a claim of IIMD to proceed because of limitations issues. The procedural context of Colenutt was different in that it involved an application by the Plaintiff to amend her claim to include the torts of family violence and IIMD, rather than a motion to strike by the Defendant. Similarly, however, both courts took a narrow interpretation of the applicable limitations legislation at a preliminary stage of the proceedings to find that because IIMD is not explicitly exempted, the IIMD claims should not proceed. By keeping open the possibility of a non-limited claim for IIMD as a viable interpretation of the legislation, the Nova Scotia Court of Appeal’s decision is better aligned with the broad legislative intent noted by Justice Smith (albeit with differing specifics, which I will come back to below). While not included as a basis for its reasons, the appellate decision is also better aligned with modern understandings of gender-based violence which recognize that psychological harms (for example those flowing from IIMD) are closely connected to physical harms (for example the harms of battery).

In contrast, the narrow approach taken by the lower courts in Colenutt and LeClair foregrounds one of the arguments made in Ahluwalia in favour of recognizing the tort of family violence – if a series of existing torts are applied, this can result in a fragmented view of violence that is not consistent with the lived experiences of survivors. A fragmented view of family violence is also contrary to the recognition of coercive control, which focuses on patterns of conduct rather than isolated incidents (see e.g. Evan Stark, Coercive Control: How Men Entrap Women in Personal Life (Oxford University Press, 2007)). As we see from Colenutt and LeClair, there are access to justice implications of hiving off particular tort claims because of limitations issues as well. Tort claims in cases involving gender-based violence are already subject to difficulties of proof (especially for intentional torts) and historically low damage awards (see here). Precluding recovery for IIMD even when the facts of that claim are interwoven with intimate partner violence and/or sexual misconduct adds to these barriers.

At the same time, it is important to acknowledge Justice Smith’s observation that provincial legislation varies across the country when it comes to the comprehensiveness of the wording used to exempt gender-based violence torts from limitation periods. As seen in Alberta, for example, sexual misconduct is only exempted when it occurs in the context of an intimate partner relationship, or against other specified persons (see section 3.1(1)(b), above). A claim like that of Ms. LeClair would be subject to the usual limitation periods in Alberta regardless of whether IIMD was connected to the sexual misconduct, given that it allegedly occurred in a professional rather than intimate relationship, unless it met the criteria for “sexual assault and battery.” In a research report that some colleagues and I prepared as background for the National Action Plan on Gender-Based Violence, we critiqued this patchwork approach to limitation periods for gender-based violence-related torts and argued that “whether a survivor’s action will be statute-barred should not vary by jurisdiction” (at 49). We recommended that:

given what is known about the trauma of gender-based violence, the often ongoing reality of stalking, intimidation, and harassment, and the prevalence of self-blame …, the preferred statutory approach is one that eliminates limitation periods for sexual assault for all forms of sexual misconduct (irrespective of the nature of the relationship…), and for any claim for harm inflicted in intimate relationships and other relationships of dependency. (at 49)

Many observers hope that the Supreme Court of Canada will not only recognize a new tort of family violence as a more holistic approach to a constellation of wrongs, but that it will also provide guidance that connects existing torts to this context. Such an approach is critically important if limitations legislation is to be given its full effect in exempting claims of gender-based violence from the usual statutory barriers, regardless of the tort(s) claimed.

Jennifer Koshan’s research on GBV is supported by a University of Calgary Research Excellence Chair. The author is grateful to Deanne Sowter for comments on an earlier draft.

This post may be cited as: Jennifer Koshan, “Limitations Laws and Gender-Based Violence Torts” (27 April 2026), online: ABlawg, http://ablawg.ca/wp-content/uploads/2026/04/ Blog_JK_GBVTorts.pdf

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