B.C. court refuses to strike lawsuit raising novel issue on limitation rules

The B.C. Court of Appeal has refused to strike a claim because of a novel issue it raised in relation to the discoverability rule under the Limitation Act.

In Aubichon v. Grafton, 2022 BCCA 77, Cuyler Richard Aubichon was arrested and allegedly assaulted by Constable Grafton of the Royal Canadian Mounted Police. Despite the beating, Aubichon did not take any legal action until four years after the incident, when the Crown approved criminal charges against Grafton following an independent investigation conducted in relation to Aubichon’s arrest.

Aubichon then commenced a lawsuit against the RCMP officer, alleging assault and intentional infliction of mental suffering. Grafton sought to have the claim struck on the ground that it was filed more than two years after the incident and the date of discovery — beyond the time limit for such an action outlined in s. 8(d) of the Limitation Act.

In his defense, Aubichon argued that he did not become aware that legal proceedings against Grafton were appropriate until the Crown brought criminal charges against the constable. Aubichon said in his affidavit 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.”

Grafton asserted that Aubichon’s experiences of violence at the hands of the authorities was irrelevant to his knowledge of whether a legal claim could be brought.  He further argued that Aubichon’s lack of awareness or knowledge that he had a potential cause of action did not postpone the limitation period.

The court said that discovery rules are not universally applicable. Under common law, a person’s ignorance of the law does not postpone the running of a limitation period because individuals are presumed to know the law. However, the court said that the issue raised in this case was important as it “engages a 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.”

According to jurisprudence, when striking a claim, courts must be cautious and to “err on the side of permitting a novel but arguable claim to proceed to trial.”

The court warned that the discoverability rule embodied in s. 8 of the Limitation Act was a relatively recent provision that had not been extensively examined in recent cases. This was a good reason to exercise restraint in striking Aubichon’s claim at the pleadings stage, said the court in dismissing the application to strike.