Class action alleging sex abuse against religious institution not time-barred: SCC

In 2013, the plaintiff brought the class action on behalf of other suspected victims of abuse by the Congregation and the Oratory.

“Everybody in these class actions should be pleased, because it is a resounding, significant, fantastic victory for all victims, and it gives them access to justice,” Robert Kugler of Kugler Kandestin LLP in Montreal, who was lead counsel for the respondent, told Legal Feeds.

Although the case involved Quebec procedural rules, and rules may differ from province to province, a majority of other provinces have not limited claims to damages by sexual abuse victims by historical time, meaning they are not time-barred. “So there is a strong desire by governments elsewhere, which is now confirmed by the Supreme Court of Canada, to obtain a justice that everybody acknowledges that victims are owed,” says Kugler.

The representative plaintiff, known as J.J., had sought authorization to proceed with the class action on behalf of other victims of sexual abuse against both La Province canadienne de la Congrégation de Sainte-Croix and L’Oratoire Saint-Joseph du Mont-Royal. Both the Congregation and Oratory objected.

The Congregation contested the application in part on the basis that the alleged abuse had occurred prior to the incorporation of La Province canadienne de la Congrégation de Sainte-Croix, in 2008. However, the Supreme Court of Canada found that, although the Congregation was constituted only in 2008, the exhibits in the record showed that several of the Congregation’s establishments have used the appellation “Sainte‑Croix” in one form or another over the years; nor did the Congregation argue that the alleged assailants might have been part of a religious community other than the one it represents.

And in 2009, the Congregation had agreed to take up the interest of other parties in the context of a settlement flowing from another application for authorization in relation to alleged sexual abuse by members of the Congregation. On that occasion, the Superior Court had found that all the conditions for authorization were satisfied and had authorized the institution of the class action for the purpose of approving the settlement.

The Oratory also objected, on the basis that it has no connection to the religious community known as the Congregation of Holy Cross. Both defendants challenged the authorization of the class action on the basis that the action was time-barred in Quebec. Article 2926.1 of the Civil Code of Quebec sets the statute of limitations with respect to criminal liability limitations at 10 years “from the day on which the victim becomes aware that the damage was attributable to that act” for an action for compensation for bodily harm, but at 30 years “if the harm results from a sexual assault [or] violence against childhood …”

There is also a three-year period provided for in the article for instituting an action in which the alleged victim or perpetrator of the act has died; in this case, the named priest had died in 2001 and the schoolteacher in 2004. In today’s ruling, the Supreme Court was unanimous that the plaintiff, J.J., was not time-barred.

In reasons dissenting in part, written by Justice Clément Gascon with Chief Justice Richard Wagner and Justice Malcolm Rowe concurring, found that this article “does not create a term for forfeiture. . . . [The] date the victim becomes aware that his or her injury is attributable to the act in question constitutes the starting point of each of the periods provided for in art. 2926.1 C.C.Q. . . .”

“The court is recognizing the tremendous difficulty that victims of abuse have to understand that there is a link between . . . the problems they suffer in their adult lives and the abuse they endured as children,” says Kugler. “So, when someone comes forward 30, 40, 50 years following the abuse, that is not exceptional, that is not surprising, that is not uncommon.”

Gascon, with whom the chief justice and Rowe agreed, was also of the view that the allegations with respect to the Oratory were too vague, and as a result the class action should be authorized solely with respect to the Congregation. Justice Suzanne Côté, dissenting, agreed in that regard, but she also did not accept that the class action should proceed against the Congregation, in part because the Province canadienne, as a distinct legal person, did not exist at the time of the alleged events. 

“The Oratory believes proceedings were brought against the institution for its symbolic value,” Saint Joseph’s Oratory of Mount Royal said in a statement following the release of the judgment. “The only allegations against the institution are that the assaults were perpetrated at the Oratory. No evidence shows any fault or responsibility on the part of the Oratory.

“Consequently, Saint Joseph’s Oratory of Mount Royal believes it should not have been covered by the application for authorization to institute a class action. . . .

“All members of Saint Joseph’s Oratory of Mount Royal, including its management team and employees, whether religious or lay, want to underscore that they vigorously and unequivocally condemn any inappropriate actions toward minors and adults and apply a strict zero-tolerance policy.”

La Province canadienne de la Congrégation de Sainte-Croix was not immediately available for comment.