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

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


 * Facts:** The appellant was the victim of incest by her father.Her cooperation and silence were elicited by various threats.The appellant tried several times to disclose the abuse but to no avail.After leaving home, the appellant attended self-help meetings for incest survivors.With therapy, she realized that her psychological problems were as a result of the incest and that it was her father rather than herself who was at fault.At the age of 28, appellant sued her father for damages arising out of the incest and breach of fiduciary duty.

//At Trial//: A jury found that the respondent had sexually assaulted the appellant and assessed tort damages of $50,000.The judge, however, found that the action was barred by s.45 of the //Limitations Act//.

//Court of Appeal//: Dismissed the appeal

//Supreme Court//:


 * Held**: Appeal allowed


 * Issues**: 1) is incest a separate and distinct tort not subject to any limitation period; 2) whether incest constitutes a breach of fiduciary duty by a parent not subject to any limitation period; 3) if a limitation period applies, whether it is postponed by the reasonable discoverability principle

//Per// La Forest, Gonthier, Cory, and Iacobucci JJ,: · Incest is both a tortious assault and a breach of fiduciary duty · The action is subject to limitations legislation, but the limitation period is postponed by the reasonable discoverability principle · The discovery of the wrongful nature of the respondent’s acts and the nexus between those acts and the appellant’s injuries was not discovered until the appellant entered therapy, and the lawsuit was commenced promptly thereafter · The bringing of a claim for breach of fiduciary duty is not subject to limitations legislation in Ontario, therefore, this breach stands along with the tort claims as a basis for recovery · Incest is not a separate and distinct tort apart from intentional assault and battery · The unique and complex nature of incestuous abuse must be taken into account by the law.Incest victims may be psychologically incapable of recognizing that a cause of action exists · The reasonable discoverability rule should be applied: “the limitations period should begin to run only when the plaintiff has a substantial awareness of the harm and its likely cause.” · The close connection between therapy and the shifting of responsibility is typical of incest cases and creates a presumption that incest victims only discover the necessary connection between their injuries and the wrong done to them during some form of psychotherapy · The appellant argued that the limitation period was also delayed by the respondent’s fraudulent concealment of her cause of action.The court does not decide this point but comments that fraudulent concealment could apply to incest cases because of the environment of secrecy in which incest occurs and that the victim’s silence is attained through various insidious measures which condition the victim to conceal the wrong from herself · Incest also constitutes a breach of fiduciary duty and while the //Limitations Act// does not limit actions against a fiduciary, there are certain doctrines that may bar a claim because of delay · The potential hurdles for a claim for breach of fiduciary duty are the following: limitations legislation, application of legislation by analogy, equitable doctrine of laches · The claim in this case overcomes all of these hurdles: o The Ontario //Limitations Act// does not include actions for breaches of fiduciary obligations. o The legislation does not apply by analogy.Equity has rarely limited a claim by analogy when the action falls within its exclusive jurisdiction, as in this claim for breach of fiduciary duty.Furthermore, any analogy would be nullified by the doctrine of fraudulent concealment and the reasonable discoverability principle o For the defendant to benefit from the defence of the laches, he must show acquiescence on the part of the appellant, which in this case would consist of delay by the plaintiff despite knowledge that her rights have been violated.There is then a residual inquiry that in light of the plaintiff’s knowledge, can it reasonably be inferred that the plaintiff has acquiesced to the defendant’s conduct.In this case, the defence does not apply because the appellant mistakenly blamed herself for the incest and was unaware that her rights had been violated. · The damages in tort as assessed by the jury should be awarded
 * Reasoning**:

//Fiduciary Obligation of a Parent// · Intuitively apparent that the relationship between parent and child is fiduciary in nature · Sexual assault of one’s child is a heinous breach of this duty · Various cases have defined and narrowed the meaning of fiduciary obligation: o //Guerin v. The Queen//: “the hallmark of a fiduciary relation is that the relative legal positions are such that one party is at the mercy of the other’s discretion… [ Where there is a fiduciary obligation ] there is a relation in which the principal’s interests can be affected by and are therefore dependent on, the manner in which the fiduciary uses the discretion which has been delegated to him.” o The court in //Guerin// also states “it is the nature of the relationship, not the specific category of actor involved that gives rise to the fiduciary duty.The categories of fiduciary, like those of negligence, should not be considered closed.” o In //Frame v. Smith//, Wilson J. in dissent sets out the following three characteristics of possessed by fiduciary relationships: 1. The fiduciary has scope for the exercise of some discretion or power 2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests 3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power o La Forest J. in //Lac Minerals v. International Corona Resources Ltd.// applies the test set out by Wilson J. and elaborates further on the characteristics and nature of fiduciary relationships: “The obligation imposed may vary in its specific substance depending on the relationship, though compendiously it can be described as the fiduciary duty of loyalty and will most often include the avoidance of a conflict of duty and interest and a duty not to profit at the expense of the beneficiary…not every legal claim arising out of a relationship with fiduciary incidents will give rise to a claim for breach of fiduciary duty.” · A claim for breach of fiduciary duty must be in relation to the specific obligations imposed because the relationship is a fiduciary one – the nature of the obligations will vary depending on the factual context of the relationship in which it arises · Fiduciary obligation has not beenraised in previous incest cases as an independent head of liability.However, it is clear that such an option is available subject to statutory and other limitation defences specific to equitable claims.

//Per// Sopinka J.: · Agrees with the reasons and result of La Forest J. except with respect to the creation of a presumption and the shifting of the legal burden of proof through resort to a presumption that a plaintiff typical of the syndrome is unaware of the injury done to her until she undergoes therapy

//Per// McLachlin J.: · A presumption that the plaintiff discovers the cause of action when a therapeutic relationship begins is not necessary.The question is a matter of fact to be determined in all circumstances · The damages award made by the jury was not adequate.However, the appellant did not appeal from that award, therefore, the question of whether the award was appropriate did not arise here