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Before:
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The Honourable Madam Justice Newbury
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The Honourable Madam Justice Huddart
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The Honourable Mr. Justice Low
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F.A. Schroeder, A.P. Berry and M. Pongracic-Speier
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Counsel
for the Appellants
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W.A. Pearce, Q.C. and K.W. Inaya
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Counsel
for the Respondent
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Place and Dates of Hearing:
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Vancouver,
British Columbia
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March 1 and 2, 2004
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Place and Date of Judgment:
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Vancouver,
British Columbia
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June
1, 2004
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Written Reasons by:
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The Honourable Madam Justice Newbury
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Concurred in by:
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The Honourable Madam Justice Huddart
The Honourable Mr. Justice Low
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INDEX
Paragraph
INTRODUCTION
The 'Unlimited Limitation' and the Limitation
Act 1
THE NON-CHARTER
ISSUES 10
Factual Background 17
Crown Liability 33
ON APPEAL 56
The Crown Proceeding(s) Acts
and the Limitation Act 59
Peixeiro 74
Discoverability Generally 81
The Cross-Appeal 88
THE
CONSTITUTIONAL CHALLENGE TO
S. 3(4)(k) OF THE LIMITATION ACT 101
The Chambers Judgment 104
ON APPEAL 113
The "Comparator Group" 114
Differential Treatment 123
Enumerated or Analogous Ground 124
Discrimination 127
Dignity 151
DISPOSITION 153
Reasons for
Judgment of the Honourable Madam Justice Newbury:
INTRODUCTION
The 'Unlimited Limitation' and the
Limitation Act
[1]
Since the early 1980s, damage claims for "historical
sexual assault" have become a common feature in Canadian courts of law.
Partly to seek psychological "closure" and partly to seek simple
justice, men and women who were subject to harmful and degrading sexual abuse
as children have come forward to confront their abusers and, in many cases, the
employers and institutional caregivers which, often unwittingly, made their
depredations possible. One obvious concern raised by such cases is the passage
of long periods of time between the abuse and the trial of such complaints: for
many reasons, it is much more difficult for an individual defendant and his or
her employer to respond in a meaningful way to claims of misconduct alleged to
have occurred decades earlier. Indeed, in many instances before the courts,
the individual defendants have died or are infirm and unable to mount a real defence,
and institutional defendants are hard pressed to locate witnesses or records that
might shed light on events of many years ago.
[2]
Society's interest in ensuring that injustice
does not result from the advancing of stale claims has of course traditionally been
addressed by statutes of limitations. In British Columbia, those in force
until 1975 followed the traditional pattern of prescribing specific limitation
periods for specified causes of action. The focus of the case-law interpreting
such statutes was the point in time at which the cause of action "accrued"
or was complete and could found a civil suit. In the area of tort law, the possibility
of the appearance of damage or the discovery of injury years after the breach
of duty which caused it was the subject of judicial debate in three well-known
English cases: Cartledge v. E. Jopling & Sons [1963] A.C. 758
(H.L.), Sparham-Souter v. Town and Country Developments (Essex) Ltd.
[1976] Q.B. 858 (C.A.) and Pirelli General Cable Works Ltd. v. Oscar
Faber & Partners (a firm) [1983] 1 All E.R. 65. In the latter
case, the House of Lords ruled that the plaintiffs' cause of action against a
firm of consulting engineers whom they had engaged to design a chimney, had accrued
when cracks formed in the chimney, whether or not the plaintiffs were or could
have been aware of the damage at that time. By the time the plaintiffs became
aware of the damage, their action was statute-barred. Lord Fraser decried this
result as "unreasonable and contrary to principle", but concluded
that:
. . . the law is
now so firmly established that only Parliament can alter it. Postponement of
the accrual of the cause of action until the date of discoverability may involve
the investigation of facts many years after their occurrence (see, for example,
Dennis v. Charnwood [[1982] 3 All E.R. 486 (C.A.)]) with possible
unfairness to the defendant, unless a final longstop date is prescribed, as in
ss. 6 and 7 of the Prescription and Limitation (Scotland) Act 1973. If there
is any question of altering this branch of the law, this is, in my opinion, a
clear case where any alteration should be made by legislation, and not by
judicial decision, because this is, in the words of Lord Simon in Miliangos
v. George Frank (Textiles) Ltd. [1975] 3 All E.R. 801 at 823 . . . , a 'decision
which demands a far wider range of review than is available to courts following
our traditional and valuable adversary system — the sort of review compassed by
an interdepartmental committee.' I express the hope that Parliament will soon
take action to remedy the unsatisfactory state of the law on this subject. [at
72]
[3]
A year later, in Kamloops (City of) v.
Nielsen 1984 CanLII 21 (S.C.C.), [1984] 2 S.C.R. 2, the Supreme Court of Canada took a bolder
approach. It declined to follow Pirelli even though, as Wilson
J. noted for the majority, postponing the accrual of the cause of action until
the date of discoverability could "involve the courts in the investigation
of facts many years after their occurrence." The Court viewed this
possibility as "much the lesser of two evils", and (apart from the Limitations
Act) would have construed a one-year limitation period in the Municipal
Act, R.S.B.C. 1960, c. 255, as beginning to run on the date on which
the damage to the plaintiffs' house was called to their attention. (At 40.)
[4]
By this time, however, British Columbia had
enacted a new limitations statute (S.B.C. 1975, c. 37) largely in accord with
the recommendations of the 1974 Report on Limitations (No. 15) of
the British Columbia Law Reform Commission. Like its predecessor statutes, the
new Limitations Act set out limitation periods applicable to
various causes of action. Section 3(1)(a) provided, for example, that an
action for damages in respect of injury to persons or property could not be
brought "after the expiration of 2 years after the date on which the right
to do so arose". Section 3(1)(d) specified a similar limitation for
actions for false imprisonment. Section 6, however, provided for the
postponement of the running of time in certain circumstances in a manner which
at the time was unique in Canada. Most importantly for purposes of this
appeal, s. 6(3) postponed the running of time in respect of certain actions,
including actions "for personal injury":
. . . until the identity of the defendant is
known to [the plaintiff] and those facts within his means of knowledge are such
that a reasonable man, knowing those facts and having taken the appropriate
advice a reasonable man would seek on those facts, would regard those facts as
showing
(j) that an action
on the cause of action would, apart from the effect of the expiration of a
limitation period, have a reasonable prospect of success, and
(k) that the person whose means of
knowledge is in question ought, in his own interests and taking his
circumstances into account, to be able to bring an action.
Thus the new Act introduced a "reasonable
discoverability" rule in British Columbia, codifying (as Wilson J. noted
in Kamloops v. Nielsen) the English Court of Appeal's reasoning
in Sparham-Souter, supra, "by
postponing the running of time until the acquisition of knowledge or means of
knowledge of the facts giving rise to the cause of action." (Kamloops,
at 42.) As well, s. 7 postponed the running of time against persons who had
not reached the age of majority or were otherwise under disability.
[5]
At the same time, the Legislature considered it
necessary to enact certain "ultimate" or "longstop"
limitation periods so that the running of time could not be postponed
indefinitely, even by application of the discoverability provision. Thus s. 8
of the Limitations Act (later renamed the Limitation Act,
R.S.B.C. 1996, c. 266) provided that notwithstanding a postponement or
suspension of the running of time under the Act, "no action to which this
Act applies shall be brought after the expiration of 30 years from the date on
which the right to do so arose". (Shorter ultimate periods were
prescribed for actions against hospitals and medical practitioners based on
negligence or malpractice.)
[6]
In 1992, the British Columbia Legislature
determined that even the 30-year ultimate limitation period should not be
applied in cases "based on" sexual assault or sexual misconduct. The
Attorney General of the day, Mr. Gabelmann, addressed the Legislature on June
9, 1992 concerning the amendment he proposed to the Act as follows:
Hon. Speaker, I wish to describe to the
House the background and principal features of this bill, a bill which I
believe to be of great importance. There is growing recognition in our society
of the extent of child sexual abuse and its often devastating long-term
psychological effects. I'm sure that all members of the House have been
horrified upon hearing or reading accounts of the trauma suffered by survivors
of childhood sexual abuse. This knowledge makes it imperative that we as
legislators do everything possible to demonstrate society's unwillingness to
tolerate this crime. Even more important, we must do everything within our
power to assist those who have suffered as victims of childhood sexual abuse.
One of the things we have learned is that
a great many people who have endured such abuse suppress the memory for many
years as a way of coping with the horror. We have also learned that one of the
most important healing factors is to have the opportunity, however many years
have passed, to confront the abuser. This bill has been introduced in
recognition of those facts, and reflects the government's desire to address the
crime of childhood sexual abuse, and to assist and support those who have
survived it.
One of the most effective ways for
survivors of childhood sexual abuse to confront their abusers is by seeking
compensation through civil suits for the mental, physical and emotional damage
inflicted by the abusers. As a result, we have become aware of obstacles posed
at present by provisions of the Limitation Act as they relate to the capacity
to bring suit by survivors of childhood sexual abuse. The basic limitation
period for personal injuries under the act at the present time is two years.
In the case of minors, this two-year period begins at the time they reach the
age of majority. The act does provide for postponements under particular
circumstances. It has become evident, however that the present provisions are
inadequate to meet the needs of survivors of sexual abuse.
The victim in
some cases still lives in fear of the abuser until long after the opportunity
to bring action has passed. Of even greater significance is the suppression
factor I referred to previously. There are many documented cases where the
survivor is in his or her thirties or forties or even older before the
suppressed memories surface. At that point, for many individuals the need for
healing becomes intense, and an important component, as I have suggested, is to
se the abuser confronted publicly, and the crime recognized. The amendment
proposed in this bill reflects an understanding of these factors and the
importance of addressing them. The amendment would remove the time
restrictions in such cases and would thus allow a survivor of childhood sexual
abuse to take legal action at any time.
(Debates of the Legislative Assembly,
vol. 4, No. 10 (June 9, 1992.) Similar sentiments were expressed by other Members
of all parties.
[7]
In due course, s. 3 of the Limitations Act
was amended by S.B.C. 1992, c. 44, which added a new s. 3(3)(k). The amended
provision stated:
(3) The
following actions are not governed by any limitation period and may be brought
at any time:
. . .
(k) in tort or for
negligence
(i) where the cause of action is based on misconduct of a sexual
nature,
(ii) where the misconduct occurred while the person was a minor,
and
(iii) whether or not
the person's right to bring the action was at any time governed by a limitation
period.
In 1994, yet another amendment was made so
that ss. 3(3)(k) and (l) now read as follows:
(3) The following actions are not
governed by any limitation period and may be brought at any time:
(k) for a
cause of action based on misconduct of a sexual nature, including, without
limitation, sexual assault,
(i) where the misconduct occurred while the person was a minor, and
(ii) whether or not the person's right to bring the action was at
any time governed by a limitation period;
(l) for a
cause of action based on sexual assault, whether or not the person's right to
bring the action was at any time governed by a limitation period.
(See S.B.C. 1994, c. 8.) The same bill
modified the ultimate limitation in s. 8 such that where the plaintiff was a
minor, the 30 years did not begin running until he or she reached the age of
majority. (I will refer to the Limitation Act or its predecessor,
the Limitations Act, as the "Act".)
[8]
Obviously, these amendments to s. 3(3) — now
renumbered as s. 3(4) — had an ameliorative purpose — i.e., they were intended
to improve the circumstances of a disadvantaged group. (See Nova Scotia
(Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation
Board) v. Laseur 2003 SCC 54 (CanLII), [2003] 2 S.C.R. 504, at para. 102.) The plaintiffs in
this case, however, submit that the amendments were underinclusive and discriminate
against them contrary to s. 15(1) of the Canadian Charter of Rights and
Freedoms. They allege that they were unlawfully confined when the
Province apprehended them, separated them from their parents and homes, and
housed them at a facility at New Denver in the 1950s. They also allege abuse
of statutory authority, breach of fiduciary duty and non-delegable duty, and
negligence on the part of the Province. Some of the plaintiffs say they were
sexually abused at the New Denver facility, either by provincial employees or
by other children; but those who allege wrongs other than sexual misconduct
say that they too should have the benefit of the 'unlimited limitation' period provided
by s. 3(4)(k) of the Limitation Act. In their submission,
all forms of child abuse are "capable of causing" similar kinds of
harm to victims, including depression, anxiety disorders, fear of public
places, nightmares, sleep disturbances, eating disorders, poor self-image,
interpersonal and sexual dysfunction, and self-destructive behaviour such as
substance abuse and addiction. All such victims, they say, suffer from "disability"
and, on an application of the three phases of analysis mandated by the Supreme
Court of Canada in Law v. Canada (Minister of Employment and Immigration)
1999 CanLII 675 (S.C.C.), [1999] 1 S.C.R. 497, the failure of the Limitation Act to extend
the benefit of s. 3(4)(k) to all victims of child abuse impinges on their
dignity. Thus they state in their factum:
The Limitation
Act fails to take some abuse survivors' needs into account, while providing
benefits to others. The result is an arbitrary and discriminatory regime that
signals to the Charter Plaintiffs that their disabilities, needs, and access to
the justice system are less important than those of sexual abuse survivors.
Accordingly, the plaintiffs seek the
constitutional remedy of "reading in" to s. 3(4)(k) causes of action
based not only on sexual misconduct or assault, but actions "based on
abuse resulting in physical or emotional harm" where the misconduct occurred
when the plaintiff was a minor.
[9]
The Chambers judge below, Madam Justice
Kirkpatrick, did not accede to the plaintiffs' constitutional argument. She ruled
that s. 3(3)(k) did not discriminate against victims of non-sexual abuse
contrary to s. 15 of the Charter. I shall return to her Reasons
in this regard, and counsel's arguments on appeal, below.
THE
NON-CHARTER ISSUES
[10] The first part of the judgment appealed from, however, dealt with various
technical arguments concerning the interpretation and application of the Limitation
Act, and to a lesser extent the Crown Proceeding(s)
Acts, to the claims of the plaintiff Mr. Poznikoff. He
is a "test" plaintiff for various questions of law which counsel
asked the court below to answer in the hope that the scope and length of the
trial of all the plaintiffs' claims might be reduced. Applications were made
pursuant to both Rules 18A and 34 of the Rules of Court. First,
the Province applied under R. 18A for an order dismissing Mr. Poznikoff's
claims on the ground that they were statute-barred. This required the
determination of the threshold question of whether Mr. Poznikoff's particular
allegations were "based on misconduct of a sexual nature" within the
meaning of s. 3(4)(k) of the Limitation Act. He alleged that he
and the other children at New Denver had not been given personal privacy, in
particular in showering, bathing and using the washroom; that he had been
required to dress and undress in the presence of his peers, and occasionally in
the presence of staff members; and that he was taunted by other boys at the
residence because of his physical characteristics.
[11] In her Reasons dated April 4, 2002 and reported at 2002 BCSC 488 (CanLII), [2002] 7 W.W.R.
127, 1 B.C.L.R. (4th) 368, 2002 BCSC 488, Kirkpatrick J. concluded that viewed
through the eyes of a reasonable observer, these complaints did not constitute
a "real affront to [Mr. Poznikoff's] sexual integrity" or amount to
conduct "falling outside the accepted society norms of the day." She
summarized her conclusions as follows:
In my view, a reasonable observer would
not regard the lack of privacy or the teasing to which Mr. Poznikoff was
subjected as conduct falling outside the accepted societal norms of the day.
First, while the reasonable observer might
well regard the apprehension and confinement of the children at New Denver as
unfortunate or even abhorrent, because it separated children from their
parents, the actual circumstances of their confinement were consistent with
dormitory life in other schools or other institutions. In other words, the
sensibilities of society would not be offended because the facilities were not
out of the ordinary at the time or even now.
Second, there
is no evidence that the teasing of Mr. Poznikoff about his genital size was
encouraged or countenanced, by the staff. The only evidence suggests that the
staff acted appropriately in respect of general teasing of Mr. Poznikoff by
encouraging the older boys to treat him as "one of the gang."
Furthermore, I cannot say that juvenile teasing by peers in regard to the
sexual development of their peers is conduct which is sufficiently egregious so
as to demand that either the perpetrators or the staff charged with their
supervision be brought to justice so that Mr. Poznikoff may confront them.
First, as I have noted, there is no compelling evidence that the staff was made
aware of the teasing. There is only the vague recollection that one of the
staff may have been present on one occasion when Mr. Poznikoff was teased about
his genitals. Second, it is behaviour that, while it may be offensive and
juvenile, it is also characteristic of adolescents. It is a passing phase
which most, if not all, children endure to one degree or another. In other
words, it is a commonplace of life, despite adults trying to make it otherwise.
[paras. 74-76]
Accordingly, she ruled that Mr.
Poznikoff had not been exposed to misconduct of a sexual nature within the
meaning of the Limitation Act. No appeal was taken from this
ruling.
[12] This left the issues of law raised by the R. 18A application for the
dismissal of Mr. Poznikoff's claims as statute-barred, and the Province's second
motion, made under R. 34, for the determination of the following questions:
(1) Can
an action for a tort referred to in ss. 3(4)(k) and (l) of the Limitation
Act that was committed before those sections came into force have been
statute-barred before that date by reason of section 8(1)(c) of the Limitation
Act?
(2) Do
ss. 3(4)(k) and (l) of the Limitation Act apply so as to
revive a cause of action that was statute-barred before the coming into force
of those sections?
(3) Can the Crown be
liable for a tort alleged to have been committed before the Crown
Proceedings Act came into force? [para. 4]
If the foregoing questions were answered
in favour of the Province, the plaintiffs Mr. Poznikoff, Ms. Tina Makonin, and
Ms. Naida Hamoline asked the Court to determine, pursuant to Rules 39(29) and
18A, the constitutional validity of s. 3(4)(k) of the Limitation Act
as earlier mentioned. The Chambers judge's second judgment (reported at 2002 BCSC 951 (CanLII), [2002]
10 W.W.R. 130, 4 B.C.L.R. (4th) 58, 2002 BCSC 951) addressed all of these
issues and is the judgment under appeal.
[13] We were told by counsel that as the hearing dates for their
applications approached, the questions they had formulated became something of
a "moving target", a fact complicated by amendments the plaintiffs
proposed to make to their pleadings. Eventually, in order to be able to
proceed with the scheduled hearing, counsel for the Province agreed to make
admissions "for purposes of the R. 18A [limitation] application only",
reserving (as I understand it) the Province's right to withdraw the "admissions"
at trial and adduce evidence to the contrary. Counsel confirmed before us that
the admissions were accurately stated by the Chambers judge at para. 33 of her
Reasons as follows:
As I have
been asked to do so by the defendant for the purpose of the application under
Rule 18A, I assume that Mr. Poznikoff's confinement at New Denver was
unlawful. Mr. Poznikoff was released from New Denver on or about September
30, 1956. He reached the age of majority on September 23, 1965. It has
already been determined by this court that Mr. Poznikoff did not suffer
misconduct of a sexual nature. For the purpose of this analysis, the Crown has
admitted that Mr. Poznikoff neither connected his injury with his
confinement nor knew that he could seek legal recourse until the Ombudsman
published her report on April 8, 1999. The writ in this action was issued on
April 4, 2001. [Emphasis added.]
In response to questioning in this
court, counsel agreed that the word "admissions" was a misnomer,
given that the Province reserved its right to take a different position at
trial, and that the word "assumptions" might have been more accurate.
[14] I must confess to difficulty in accepting "admissions" or
even assumptions for the purpose only of the determination of a question under
to R. 18A. That rule mandates a summary trial in which evidence is
adduced and the Court finds facts. The process is quite different from the
determination of a question of law, on the pleadings, under R. 34.
As we noted in Hobbs v. Robertson, 2002 BCCA 381 (CanLII), 2002 BCCA 381 at paras. 8-10, a
defendant who makes an admission in a summary trial runs the risk of final
judgment when that may not be the intended result. However, since both counsel
in this case agreed that the Province would not be bound in a "full"
trial by the "admissions", and since the Chambers judge (who was also
sitting in this case as a summary trial judge) considered that the dangers of "litigation
in slices" were outweighed by the possible benefits of deciding the
questions of law put to her without a full trial, I will proceed on the basis
of the assumptions set out above. (These assumptions made it unnecessary for
the Court to consider many of the documents and affidavits filed in the
proceeding; but for some reason they were adduced and then reproduced in the
appeal books for this court as well, and were referred to in the factums as
though they supported facts found by the Chambers judge.)
[15] As counsel for the Province evidently conceded in argument below, the
first two of the three questions concerning ss. 3(4)(k) and (l) of the Limitation
Act were readily answered, in the affirmative, by reference to P.(J.)
v. Sinclair 1997 CanLII 12500 (BC C.A.), (1997) 37 B.C.L.R. (3d) 366 (B.C.C.A.). In that case, this
court held that the effect of s. 3(3)(k) was to remove all time restrictions on
causes of action based on sexual assault or misconduct of a sexual nature, even
causes of action previously barred. We stated:
Section
3(3)(k), however, contains what in my view is more explicit wording: it states
that the cause of action is not governed by a limitation period whether or not
the action "was at any time" so governed. This wording — the
use of the past tense "was" rather than "is", and the
broadness of "any time" — seems designed to overcome the rules of
construction I have referred to. In fact it would in my opinion be difficult
to use any clearer words to lift "causes of action based on misconduct of
a sexual nature", even those previously barred, from the ambit of any
limitation whatsoever. Thus I would agree that s. 3(3)(k) must be applied
retrospectively and that it does have the unusual effect of reviving causes of
action previously extinguished. [para. 13]
It may be that if this case is appealed
further, the Province will challenge the correctness of our conclusions in Sinclair,
but I did not understand counsel to do so before us.
[16] This left the third question posed under R. 34 — namely, whether the
Crown can be liable for a tort alleged to have been committed before the Crown
Proceedings Act, S.B.C. 1974, c. 24, came into force on August 1, 1974
— and the question under R. 18A of whether Mr. Poznikoff's claim was statute-barred
before April 4, 2001, the date his action was commenced.
Factual
Background
[17] The "facts" of the case must of course be assumed from the
plaintiffs' pleadings for purposes of the R. 34 question. They begin with the
apprehension of the plaintiffs, who were children between five and 15 years of
age, and their confinement at the New Denver facility between 1953 and 1959.
Although this does not appear in the Further Amended Statement of Claim, it is
common ground that the plaintiffs' parents were members of the Sons of Freedom
sect of the Doukhobor religion. A general idea of the social, religious and
legal background of the Doukhobors in British Columbia is provided by the "Report
of the Doukhobor Research Committee" (the "Hawthorn Report")
placed in evidence by the plaintiffs. I shall refer to this report, and to
other matters alleged in the Province's Statement of Defence, only for
background purposes and to add a human dimension to the issues before the Court.
These allegations have not been tried below, and again I emphasize that the
Chambers judge made no findings of fact on the summary trial of the Limitation
Act issues before her.
[18] The Hawthorn Report was prepared by a group of academics from the
University of British Columbia assembled at the request of the Attorney General
of the Province in 1950. The group was headed by Dr. Harry B. Hawthorn. It recounted
that the Doukhobors had emerged in Russia as a sect of dissident peasants who separated
themselves during the 18th century from the Russian Orthodox Church. The
Report continued:
Throughout the nineteenth century their actions
and beliefs led to an intermittent conflict with state and clerical authority
and to persecution and exile, until humanitarians in England and Russia sought
a land to which they could emigrate.
In brief, their beliefs centered on direct
revelation and guidance which denied the need for a church organization and by
extension included a denial of governmental authority and of the right of
anyone to use force in human affairs. The attempt to construct complete and
logical systems of belief took them even farther, and the translation of belief
into action was pursued without the compromises which are usually labelled "common
sense". In order to protect their existence, however, they developed ways
to evade, mislead and passively resist the inquiries and requirements of the
authorities.
Welcomed by a government which wanted
settlors, the first groups of Doukhobors arrived in Canada in 1899, some 7,427
in number. They were followed from 1900 to 1920 by small numbers of liberated
exiles and their families, totalling 417 in all. In 1927 one small additional
group arrived with Peter Petrovich Verigin, son of the man who had been the
Doukhobors' first leader in Canada.
They were
seeking land and freedom, on their own terms. . . . They had in the first
place fixed ideas of their goal which included freedom from the control of any
government, and they failed to consider its impossibility. Decisions and
communications were hopelessly bogged down until they had to be made by
[Aylmer] Maude and the other representatives without the group's full
understanding simply because full understanding could not be achieved.
[19] According to the Report, in the early years of the 20th century,
groups of Doukhobors migrated to western Canada hoping to escape "what
they felt to be the constraints of government and the corrupting influences of
their Canadian neighbours." By 1950, an estimated 11,000 had settled in
British Columbia, mainly in the Kootenay and Grand Forks areas. Most belonged
to one of three major religious groups — the Union of Spiritual Communities of
Christ, the Society of Independents, and the Sons of Freedom, the group with
which we are concerned in this case. They numbered some 2,000 to 3,000 and
were in general considered to exhibit "the most intense reaction to the
processes of adjustment to Canadian life, which operate on them as the others,
and the firmest belief in the necessary conflict between good and government."
[20] The Hawthorn Report noted the difficulty of relations between
Doukhobors and other Canadians, including the existence of prejudice and
hostility on both sides. Under the heading "Conflicts of Law and
Government", it stated:
Most of the
formal relationships of the Doukhobors with the Governments of Canada and
British Columbia have been accompanied by conflict: over land and its laws of
registration and ownership; over citizenship and its privileges and
obligations; over education and the receipt of other forms of welfare; and over
taxation. The conflicts have led to refusal, avoidance, illegal protest and
violence. Gradually, the Sons of Freedom protests have gained the additional
aim of wanting to provoke the Canadian Government sufficiently to deport the
protesters, ignoring the fact that the consent of two nations is required for a
deportation.
Protests by the Doukhobors often took
the form of arson or dynamiting. According to the Hawthorn Report, between
1924 and the date of the Report, over 400 instances of arson and dynamiting —
mostly of Doukhobor property but also of railroads — had occurred in British
Columbia. Another form of protest was nudity, a tactic used to induce "anxiety"
in non-Doukhobors at public gatherings and meetings.
[21] The problem of schooling of Doukhobor children became a focus of
conflict which manifested itself in the burning of schools by members of the
Sons of Freedom sect, the intimidation of teachers, the boycotting of schools,
and a retreat to "places of isolation" such as Krestova, where it was
felt that the "educational arm of the government [would] not reach."
The Doukhobors' major grounds of resistance to schooling were summarized as
follows:
1. The belief, especially noticeable in
recent developments of Sons of Freedom philosophy, that education is synonymous
with propensity for evil, and that it drives out "natural" good sense
as well as good moral qualities. This poses a sharp dilemma for the present
leaders of the Sons of Freedom, who are effective as leaders largely by reason
of their own schooling, but who are by the pressure of this belief enjoined
from sending their own children to school.
2. The fear of the assimilative
processes of education in public schools along with other children has existed
from the early days of Doukhobors residence in Canada, and was one of the
reasons for the move to British Columbia. This fear was once fostered by the
leadership, who saw the possibility of losing the identity of the group, and is
now held most intensely by the Sons of Freedom, who see relocation as a retreat
from this threat.
3. The objection to national history in
so far as it fails to condemn wars, and in so far it glorifies governments.
4. The objection to schooling, some say,
where pure discipline is an aim of the classroom, where equipment is inadequate
and activity and learning minimal.
5. The feeling that Doukhobors are
treated with discrimination.
6. The need
of assistance from the children in gardening, child-minding and housework at
the times when school claims them.
[22] The Hawthorn Report noted that these beliefs were most firmly held
by the Sons of Freedom adherents, with whom, it said, "no compromise
agreement can be reached at present." The authors nevertheless
recommended a generally "benevolent" approach aimed at ameliorating
the grievances of the Doukhobors, which it was felt would over time "ultimately
ease the situation." Specifically, the Report contemplated a commission
on Doukhobor affairs which would co-operate with local school boards to
strengthen the educational program, and the supplementing of teachers' salaries
"in areas resistant to education", the encouragement of teachers'
participation in community organizations, the providing of extra counselling
and guidance services in schools attended by Doukhobor children, and the
development of a "flexible program of studies", including studies of
Russian culture and language.
[23] The chapter of the Report on "Childhood and Family Life" was
written by Miss Lewis, an expert in the field of "Child Study". She warned
that it would be adding "fuel to the flame" to remove the children of
Sons of Freedom Doukhobors from their parents. In her words:
The uprooting of child from home, of mother
from child, is one way to court disaster in terms of personality warping. Such
a policy of removal would but add grievance to grievance, protest to protest.
I believe it is generally recognized now
that the removal of children from home during the time of imprisonment at Piers
Island was a mistake, albeit one made with good intentions. In fact, the
recognition that children need their homes is such an accepted consideration in
social welfare work today that it is probably unnecessary for me to develop the
point further here.
I am
convinced that Doukhobor children do not suffer serious material neglect when
one or both parents are away in jail. To remove them from the Doukhobors
community at such times in order to provide physical care for them is the
unwise way to alleviate the hardships. The sense of responsibility toward care
of children among the Doukhobors is high.
However, the Report recommended that "in
situations where prosecution of parents for habitual truancy of children is
considered desirable, and local School Boards will not give the necessary
consent for action, the Superintendent of Education [should] exercise his
prerogative to do so."
[24] According to the Province's Statement of Defence filed in this
action, civil disobedience and active destruction of schools and governmental
offices continued unabated in the Doukhobor communities in the early 1950s. A
rash of incidents occurred in the spring of 1953 when the Sons of Freedom
community "became preoccupied with the prospect of migrating from Canada
to a new as yet unspecified home." The Statement of Defence continues:
8. . . . By 1953 it was estimated that some
435 Doukhobor children were not attending school in the West Kootenays. On
April 16, 1953 Attorney General Robert Bonner announced his party's policy
respecting the problems. He promised wholesale arrests should any mass
demonstration occur and outlined a three point program which included an
increasingly firm attitude on school attendance. All children from 7-15 years
of age were to be sent to school or else the parents would be liable to fines.
If this failed the driver's licenses of parents were to be revoked and if that
failed steps would be taken under the Protection of Children Act to
protect the children on the basis that the children were habitually truant.
9. On May 29, 1953 a letter was written to
Attorney General Robert Bonner from the Secretary-Treasurer of Slocan School
District #8. In that letter reference was made to a large delegation from the
Slocan Valley Citizens Committee who demanded that the School Board prosecute
parents for the non-attendance of their children. The School Board passed a
resolution recognizing that "from past experience that full support has
not been forthcoming from provincial authorities and ... the solution of the
problem can only come from the enforcement of the Public Schools Act and
such other legislation as may be applied". The resolution called for the
parents of truant children to be prosecuted notwithstanding that such action "will
most certainly result in protest demonstrations, burnings and possibly the loss
of a school". The School Board sought the approval of the Attorney
General to this policy before proceeding with enforcement.
10. Following the
policy announcement of the Attorney General on April 16th, 1953 incidents of
arson continued unabated and the climax came at the end of summer of 1953 when
more than 400 homes were burned down, primarily in Krestova, the home of a
large segment of the Sons of Freedom community. Then, just before the schools
were to open on September 8th a group of mainly homeless Sons of Freedom set up
a tent town at Perry Siding in the Slocan Valley. The site was located
adjacent to a school.
[25] On September 8, 1953, children arriving at school for registration
were confronted by a large number of Sons of Freedom parading in the nude in plain
view of the school and in direct defiance of warnings given to them by the
police. The next day, the police effected the arrest of 144 men and women
without incident and the removal of 104 children and 15 women in the tent camp
at Perry Siding. (Photographs of these events were included in the evidence.)
The latter were transported to New Denver and were turned over to officials of
the Department of Social Welfare. The Premier made a speech in the Legislature
stating that the government was prepared to implement many of the
recommendations of the Hawthorn Report, including the establishment of a
commission to determine outstanding questions concerning the sale of Doukhobor
lands, the introduction of legislation to recognize the Doukhobor form of marriage,
and the repeal of existing legislation that evidently excluded Doukhobors and
their descendents from voting. However, he said, the government had a
constitutional duty to maintain law and order in the Province.
[26] The Statement of Defence describes unsuccessful attempts made to place
children of the Sons of Freedom Doukhobors in homes of other Doukhobors, and
then to place them in the non-Doukhobor community. The Province alleges that when
these efforts failed, it began schooling many of the apprehended children at
the local community school in New Denver. Between 1954 and 1959, many other
children from Sons of Freedom communities were apprehended and placed under the
care of the Superintendent of Child Welfare pursuant to the Protection of
Children Act, R.S.B.C. 1948, c. 47. Section 7(m) of that statute
permitted the Superintendent to apprehend without warrant and bring before a
judge as needing protection any child "who, by reason of the action of his
parents, or otherwise, is habitually truant from school and is liable to grow
up without proper education." Since many of the children were hidden by
their parents, governmental authorities had to apprehend them in distressing
circumstances in many cases. Those who were not found lived in fear of being
apprehended.
[27] Again according to the Statement of Defence, local resistance
generally lessened with time as the children responded favourably to the
educational program. Eventually, it was decided the children could be schooled
at the local public school while living at the New Denver facility. By 1959, the
Province alleges, "Freedomite children" were being enrolled in large
numbers and the number of "holdouts" had declined. In July 1959,
Magistrate Evans released 77 Freedomite children on the promise of their
parents that the children would attend public school. Soon after, the New
Denver facility was closed. In the final analysis, the Province says, although
force had been necessary to ensure compliance with school attendance laws and
the separation of the children from their parents was extremely distressing,
Freedomite children benefited from their education, became literate in the
English language, acquired communication and other skills to enable them to
obtain employment and advance themselves, and even developed "respect for
the laws of this country which facilitated their acceptance by the
non-Doukhobor community."
[28] It is against this general background that Mr. Poznikoff, then a
child of nine, was taken from his parents at Perry Siding on September 9, 1953.
It is alleged that he is one of a subset of the plaintiffs who was not
the subject of an apprehension order under the Protection of Children Act
when he was removed from his parents' care. He was confined at New Denver from
then until his release by order of the Juvenile Court on September 6, 1956. The
release order recited that the Superintendent's application, first brought on
September 16, 1953, had been adjourned several times until it came on for
hearing on September 4, 1956. On that date Magistrate Evans heard from counsel
— Mr. Crossley on behalf of the Superintendent and Mr. John Steeves on behalf
of Mr. Poznikoff's parents. The Court ruled that the child was not in need of
protection within the meaning of the Protection of Children Act
and ordered him returned to the care, custody and control of his parents, who
by then had been released from prison.
[29] Mr. Pearce referred us to correspondence (dated later in 1956) in
evidence between Mr. Steeves and Miss McKay, the then Superintendent of Child
Welfare. In response to his threat to commence an action against her for
wrongful imprisonment, she advised Mr. Steeves that Mr. Poznikoff had been
apprehended pursuant to "verbal orders" of the Juvenile Court judge.
Mr. Steeves responded that he would check the court records. The correspondence
appears to end there.
[30] As I have already mentioned, however, the question of whether Mr.
Poznikoff's apprehension was lawfully authorized was not before the court below
and is not before us. The Province asked the Chambers judge to assume for
purposes of the R. 18A application that Mr. Poznikoff's confinement was in fact
unlawful, and that he did not connect his "injury" with his
confinement and was not aware that he could seek legal recourse until the publication
of a report of the Ombudsman in April 1999: Righting the Wrong: The
Confinement of the Sons of Freedom Doukhobor Children. Mr. Poznikoff
brought his action within two years of that date. He was then 56 years of age.
[31] Mr. Poznikoff and the other plaintiffs framed their causes of action
as follows:
13. The
Plaintiffs' claims against the Defendant for breaches of the duties referred to
in paragraph 9 include the following:
(a) abuse of public power;
(b) unlawful confinement;
(c) breach of
fiduciary duty and breach of trust, that is, the duty that the Defendant owed
the plaintiffs as parent to child when the Plaintiffs were taken into the
protection of the Defendant;
(d) vicarious
liability, or alternatively, breach of the Defendant's non-delegable duty for
the assaults, physical and sexual, on the Plaintiffs by servants of the
Defendant on the basis that such assaults occurred because the Defendant failed
to adequately, properly and effectively supervise or direct its servants so as
to ensure that the Plaintiffs would not be harmed or injured;
(e) vicarious
liability, or alternatively, breach of the Defendant's non-delegable duty for
the assaults, physical and sexual, on the Plaintiffs, by other children at New
Denver, for failing to provide a safe environment for the plaintiffs; for
failing to properly direct and supervise all of the children; for creating a
hostile, brutal and demeaning environment bound to result in physical and
sexual abuse of one child upon another;
(f) negligence,
or alternatively, breach of the Defendant's non-delegable duty by hiring and
employing incompetent servants to supervise the Plaintiffs at New Denver;
(g) negligence,
or alternatively, breach of the Defendant's non-delegable duty for failing to
establish standards of conduct for its servants and the children in New Denver
to ensure that no servant or child would injure or endanger the health or well-being
of any other child.
14. The
Defendant further breached its duty of special diligence owed to the Plaintiffs
pursuant to the Protection of Children Act, R.S.B.C. 1948, c. 47.
An appendix attached to the Statement of
Claim, in respect of Mr. Poznikoff specifically, alleges that as a result of
his confinement and mistreatment at New Denver, he suffered and continues to
suffer from depression and post-traumatic stress disorder. Two complete expert
reports, one by a psychologist and one by a psychiatrist, were filed in support
of this claim.
[32] For its part, the defendant contended that in relation to the
allegations of physical and sexual assault said to have occurred at the local
district school, no cause of action had been disclosed against the Province.
Further, it pleaded that for the most part "it is not possible to assess
these allegations because of the passage of time". It reserved the right
to amend its pleadings upon completion of discoveries. Finally, the Province
relied on Crown immunity and the provisions of the Crown Proceeding Act,
and "legislation respecting the limitations of actions." Paragraphs
26 and 27 of the Amended Statement of Defence state:
26. At common law the Sovereign can do no
wrong, which means that the Crown cannot be found vicariously liable for the
torts of Her servants because the Sovereign cannot be deemed to have authorized
an unlawful act. With the enactment of the Crown Proceeding Act the
Crown became subject to all the liabilities to which it would be liable if it
were a person for torts committed arising after August 1st, 1974. However the Crown
Proceeding Act has no application in this case because the facts allege the
commission of a tort before August 1st, 1974.
27. In further
response to the entire Statement of Claim the Defendant states that any cause
of action that the Plaintiffs might have had expired by the passage of time in
accordance with legislation respecting the limitation of actions. The
Defendant further pleads and relies upon s. 3(2)(a) and (e) of the Crown
Proceeding Act.
Crown Liability
[33] Against this background, Kirkpatrick J. turned first to the question
of law posed pursuant to R. 34 — whether the Province "can be liable"
for a tort alleged to have been committed before the Crown Proceedings
Act came into force on August 1, 1974. She saw that question as
breaking down into two, namely, whether s. 2 of the Crown Proceeding Act,
R.S.B.C. 1996, c. 89 (the "1996 Act") had retrospective effect; and
if not, whether the "discoverability principle" applied to create
potential Crown liability for torts committed prior to August 1, 1974, the date
on which the Crown Proceedings Act, S.B.C. 1974, c. 24 (the "1974
Act") came into force. That Act repealed the Crown Procedure Act,
R.S.B.C. 1960, c. 89, a statute largely unchanged from its original form,
S.B.C. 1888, c. 32.
[34] It will be recalled that the 1974 Act effected a sea change in the
position of the Crown vis-à-vis its subjects in British Columbia.
Previously, it was the general rule at common law that no proceeding, civil or
criminal, could be maintained against the Crown, as reflected in the maxim "the
King can do no wrong". As well, the King could not as a matter of
procedure be sued in his own courts — a rule said to be derived from days when
a feudal lord could not be sued in his own court. (See Wade and Phillips, Constitutional
Law (8th ed., 1970) at 678.) This immunity extended to acts committed
by servants of the Crown in the course of their employment, although the rigour
of the Crown's immunity was eased in practice by the fact that Crown servants
sued personally would be indemnified by the Crown in most cases.
[35] In the 19th century, petitions of right began to be used in place of
some more ancient writs. It became possible through the petition of right to
advance certain types of claims against the Crown, including those in contract,
where the Crown was willing to grant a fiat to the would-be plaintiff. With
respect to tort, however, petitions of right would not be entertained. As
noted by Hogg and Monahan in Liability of the Crown (3rd ed.,
2000):
With respect to tort . . . the answer was
no: the courts refused to extend the petition of right to torts. The courts
quoted the old maxim that "the King can do no wrong", and they
concluded that he could neither commit nor authorize the commission of a tort.
In fact this maxim had been used in the middle ages to produce virtually the
contrary result, namely, when the King infringed the law he should give redress
to an aggrieved subject. The courts were also wrong in supposing that the
imposition on the King of vicarious liability in tort necessarily involved
imputing to him the commission or the authorization of the tort. This error
was understandable at the time, but it is now obvious that vicarious liability
does not need to rest on any such fiction.
The exclusion
of tort claims from the petition of right procedure immunized the Crown from
liability in tort, because no other remedy was available for the purpose. The
injured subject was not necessarily without redress because in many (but not
all) cases an action could be brought against the individual Crown servant who
committed the tort, and in practice the Crown itself would defend the action
and pay any damages. Nonetheless, it was a serious defect in the law that the
Crown itself was not liable as of right. [at 6-7; footnotes omitted.]
[36] The 1974 Act ended the Crown's immunity. Section 2 of that statute
abolished proceedings against the Crown by way of petition of right and stated
in part:
(b) a
claim against the Crown, that, if this Act had not been passed, might be
enforced by petition of right, subject to the grant of a fiat by the
Lieutenant-Governor, may be enforced as of right by proceedings against the
Crown in accordance with this Act, without the grant of a fiat by the
Lieutenant-Governor;
(c) the
Crown is subject to all those liabilities to which it would be liable if it
were a person; and
(d) the law relating
to indemnity and contribution is enforceable by and against the Crown in
respect of any liability to which it is subject, as if the Crown were a
person. [Emphasis added.]
As the Chambers judge noted, ss. 15 and
16 of the 1974 Act made it clear that it was intended to operate only
prospectively and not to affect causes of action in existence immediately prior
to the enactment of the 1974 Act. The material portions provided:
15. (1) Except as otherwise provided in
this Act, this Act does not affect proceedings against the Crown that have been
instituted before the coming into force of this Act; and, for the purposes of
this section, proceedings against the Crown by petition of right shall be
deemed to have been instituted if a petition of right with respect to the
matter in question has been submitted for consideration to the
Lieutenant-Governor before the coming into force of this Act.
(2) Subject to subsection (1), this
Act does not apply to a cause of action that existed on the day before the date
this Act comes into force.
16. (1) Subject to subsection (2), the Crown
Procedure Act, being chapter 89 of the Revised Statutes of British
Columbia, 1960, is repealed.
(2) Notwithstanding
the Crown Procedure Act, that Act applies to a cause of action in
respect of proceedings against the Crown that arose before the date this Act
comes into force, whether or not it is or is considered to be a cause of
action continuing after the date this Act comes into force. [Emphasis added.]
When the 1974 Act was replaced by R.S.B.C.
1979, c. 86 (the "1979 Act"), s. 16(2) was carried forward in
somewhat different language in s. 17:
17. Notwithstanding
the repeal of the Crown Procedure Act, that Act applies to a cause of
action for proceedings against the Crown that arose before August 1, 1974,
whether or not it is or is considered to be a cause of action continuing after
August 1, 1974. [Emphasis added.]
[37] Section 17 was not in turn carried forward into the most recent iteration,
the 1996 Act, when the general statute revision was carried out. However, Kirkpatrick
J. concluded at para. 21 of her Reasons that the presumption against
retrospective operation would in any event preserve the Crown's "vested
right to immunity for causes of action arising prior to August 1, 1974." On
this point, she noted Angus v. Sun Alliance Insurance Co. 1988 CanLII 5 (S.C.C.), [1988]
2 S.C.R. 256, where it was held that a statutory bar to recovery by one spouse
against another was a substantive provision. In the words of La Forest J. speaking
for the Court:
A provision is substantive or procedural for
the purposes of retrospective application . . . according to whether or not it
affects substantive rights. . . .
In the
present case, it is difficult to see how procedure is being affected at all.
The provision in question provides a complete defence to an action. Whatever
may be the reasons for this, and whether one agrees or disagrees with them, the
provision of a complete defence to an action, just as much as the creation of a
cause of action itself, is a substantive matter. [at 265; emphasis added.]
Accordingly, the law in question was
presumed not to have retrospective application; and even if it were procedural,
La Forest J. stated, "a presumption of retrospectivity"
should not be applied, since it would amount to "a serious deprivation of
an acquired right of the [defendant] husband, and it should not lightly be
assumed that this was the intention of the legislature." (At 267.) Kirkpatrick
J. reasoned that similarly in this case, s. 2(c) of the 1996 Act, which made the
Crown liable to all liabilities to which it would be liable if it were a
person, was substantive in nature and was not intended to apply retrospectively
to "deprive the Crown of its immunity from suit regarding causes of action
that existed (i.e., were complete) before August 1, 1974." (Para. 22.)
[38] The Chambers judge next considered whether the discoverability principle
might allow Crown liability for torts committed prior to August 1, 1974. On this
point, she noted Botting v. British Columbia 1996 CanLII 8642 (BC S.C.), (1996) 27 B.C.L.R.
(3d) 106 (B.C.S.C.). In that case, Shaw J. held that the widow of a man killed
in an accident, allegedly due to the negligent design and construction of a
bridge, could sue the Province, notwithstanding the fact that the alleged
negligent acts had occurred prior to 1974. The cause of action was found, on
an application of the discoverability rule to s. 17 of the 1979 Act, to have
arisen on the date of the accident in 1992.
[39] In the course of his Reasons, Shaw J. went on in obiter to
discuss Crown immunity. He discounted as a "misconception" the maxim
that "the Sovereign can do no wrong". In his analysis:
It is helpful
to start with an understanding of the maxim "The Sovereign can do no wrong".
At first glance, the words appear to state an all-encompassing principle that
puts the Crown above the law and gives the Sovereign (that is, the state) the
right to ignore the laws which govern the conduct of all persons. This is a
misconception. According to early authorities, the Sovereign was as subject to
the laws of the realm as everyone else. However, despite being under the law,
the Sovereign could not be impleaded in the courts. The courts had no
jurisdiction over the Sovereign, the reason being that if the courts were given
control over the Sovereign, that was seen as destructive of the Sovereign's
constitutional independence. It is this immunity from being impleaded in the
courts that underlies the maxim that the Sovereign can do no wrong. [para. 47]
He cited several authorities, including R.
v. McLeod (1883) 8 S.C.R. 1 at 30-32, various texts, and a passage from
Blackstone's Commentaries on the Laws of England (3rd ed., at
246). He also quoted from the judgment of Davis J.A. for the Ontario Court of
Appeal in Peccin v. Lonegan [1934] O.R. 701, where it was said
that:
The Crown can do
no wrong, and the immunity of the Crown for the tortious acts of its servants
and agents is well established as a constitutional rule of law. It is, like
other Royal prerogatives, not to be treated as personal to the Sovereign, but
as a constitutional right conferred on the Sovereign upon principles of public
policy for the benefit of the people. These prerogatives of the Crown form
part of the law and, generally speaking, are "as ancient as the law
itself." The Queen v. McLeod (1883), 8 S.C.R. 1. [at 706]
[40] Shaw J. concluded in Botting that prior to August 1,
1974, the Crown was "quite capable of committing a wrong" and that
what the 1974 Act had changed was "not the Crown's duty to obey the law,
but its immunity from being taken to court." He rejected the argument
that the application of the discoverability principle to the 1979 Act violated
the principle against retrospectivity. In his view, that statute had opened
the Crown to being taken to court as of right and abolished Crown immunity, but
had not changed the Crown's duty to obey the law. That duty, he said, had
existed for centuries. (Para. 59.) He distinguished Angus v. Sun
Alliance, supra, on the ground that it dealt with a cause of
action that had "crystallized" before the statutory amendment. The
cause of action in Botting, in contrast, "arose after the Crown
Proceeding Act was enacted." (Para. 62.)
[41] The second authority referred to by Kirkpatrick J. on this point was
B.(K.L.) v. British Columbia 1999 BCCA 210 (CanLII), (1999) 64 B.C.L.R. (3d) 23, a
decision of five judges of this court. It concerned claims for damages for
negligence and/or equitable compensation for breach of fiduciary duty arising
out of physical and sexual abuse to which the plaintiffs had allegedly been
subjected when in foster care as wards of the Superintendent of Child Welfare.
With one exception, the abuse occurred prior to August 1, 1974. The Province
took the position that prior to that date the old Crown Procedure Act
would have been an absolute bar; that the plaintiffs' causes of action were
ones that existed the day before August 1, 1974 as referred to in s. 15(2) of
the 1974 Act; and that they "arose before August 1, 1974" as referred
to in s. 17 of the 1979 Act. Thus it was argued the new regime of Crown
liability did not apply to them.
[42] The plaintiffs' position was that causes of action in tort and
equity as against the Crown had not accrued until May 25, 1993, since each of
the plaintiffs "was unable to discover the nature of her injuries and/or
nexus between the injuries and the wrongful conduct of each of the defendants"
until the plaintiffs had received and responded to therapeutic assistance. They
urged the Court to apply the discoverability principle approved in Kamloops
v. Nielsen, supra, and to find that their causes of action had
arisen after August 1, 1974 and were therefore not barred by the old
rules of Crown immunity.
[43] On an application under R. 34, the Court adopted the latter
argument, concluding that the date of accrual of the plaintiffs' causes of
action "should
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