CHEYENNE SANTANA MARIE FOX, DECEASED, JOHN GRAHAM TERRANCE FOX, ESTATE TRUSTEE OF THE ESTATE OF CHEYENNE SANTANA MARIE FOX

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1 SUPERIOR COURT OF JUSTICE - ONTARIO CITATION: Fox v. Narine, 2016 ONSC 6499 COURT FILE NO.: CV DATE: RE: CHEYENNE SANTANA MARIE FOX, DECEASED, JOHN GRAHAM TERRANCE FOX, ESTATE TRUSTEE OF THE ESTATE OF CHEYENNE SANTANA MARIE FOX AND: NAVIN NARINE and ANDUHYAUN INC. Plaintiff Defendant BEFORE: Lederer J. COUNSEL: John A. Annen, for the Plaintiff (Responding Party) Lisa E. Hamilton, for the Defendant, Anduhyaun Inc. (Moving Party) No one appeared for the Defendant, Navin Narine HEARD: September 19, 2016 ENDORSEMENT [1] This is a motion pursuant to Rule The defendant, Anduhyaun Inc., moves to strike the Statement of Claim on the ground that it discloses no reasonable cause of action. It is said that the action is out of time; that the applicable limitation period had expired by the time the action was commenced. [2] The plaintiff is the estate of Cheyenne Santana Marie Fox. The events that led to this lawsuit occurred prior to her death. There is no suggestion that the death of Cheyenne Santana Marie Fox was connected to the circumstances which have given rise to the action. [3] The facts which are fundamental to an appreciation of the issue are uncomfortable but not complicated. The moving party, the defendant, Anduyaun Inc., operates a woman s shelter. The Statement of Defence says that its mandate is to support Aboriginal women and their children who reside there. While this is not evidence (none is permitted on a motion such as this), so far as I am aware, it raises no controversy and is mentioned only to place the facility in context. Whether this is or is not its mandate does not affect the decision on this motion.

2 - Page 2 - [4] The Statement of Claim makes certain allegations. For the purpose of the motion, these are be treated as if they had been proved. The Statement of Claim alleges that Cheyenne Santana Marie Fox was, at the material time, resident at the shelter. On June 1, 2012, the defendant, Navin Narine, is said to have followed Cheyenne Santana Marie Fox from a bar to the shelter where he climbed a wall or a fence onto the property where the shelter is located and sexually assaulted her for several hours. The plaintiff pleads that the shelter was supposed to be a place of safety but that the assault was the result of the negligence of the defendant, Anduyaun Inc. (the operator of the shelter). [5] Cheyenne Santana Marie Fox was murdered on April 25, The Statement of Claim was issued on April 27, As a general rule, where negligence is the cause of action, there is a two-year period within which an action may be commenced. This is prescribed by the Limitations Act, 2002, S.O. 2002, c. 24, s. 4: Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. [6] The general rule does not apply to cases that consider a sexual assault. The section of the Limitations Act, 2002 that deals with sexual assault is s. 16(1)(h): 16. (1) There s no limitation period in respect of,... (h) a proceeding based on a sexual assault; [7] Can this apply to a defendant that is a third party and not the perpetrator of the assault? The Limitations Act, 2002, s. 16(1.3) states: (1.3) For greater certainty, clauses (1)(h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability. [8] Neither party disputed the idea that this sub-clause was pointed at parties other than the perpetrator. A sexual assault is a criminal act. It cannot reasonably be proposed that before a person who carries out such an act can be civilly liable, he or she must have been negligent, in a fiduciary relationship with the victim, or owed the victim a duty. A perpetrator is directly involved and so cannot be vicariously liable for his or her own acts. It is when a third party stands in such a relationship to the victim that s. 16(1)(h) is extended such that there is no limitation period that applies. Thus, the question is whether the defendant, Anduhyaun Inc., was vicariously liable for the acts of the person who committed the assault (the defendant, Navin Narine), was in a fiduciary relationship with the victim (Cheyenne Santana Marie Fox), or owed her a duty of care or any other duty.

3 - Page 3 - [9] There is nothing in the record that connects Navin Narine to Anduhyaun Inc.. There is nothing to suggest that it, or those associated with the shelter, were, in any sense, aware of Navin Narine. There is no basis on which it could be argued that Anduhyaun Inc. is vicariously liable for his actions. [10] The list of relationships that are understood as fiduciary in nature is not fixed. [11] The question of how to identify a fiduciary relationship has been reviewed. In Frame v. Smith, [1987] 2 S.C.R. 99, Madam Justice Wilson, in her dissenting judgment, proposed that a custodial parent (the mother) could be in a fiduciary relationship with the non-custodial parent (the father) with respect to visitation rights to their children. She provided the following as guidance: Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics: (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. (Frame v. Smith, supra, at p. 136) [12] In Hodgkinson v. Simms (S.C.C.), supra, at p. 408, Mr. Justice La Forest commented on Madam Justice Wilson's three characteristics of fiduciary relationships. He said: Although the majority held on the facts that there was no fiduciary obligation, Wilson J. s mode of analysis has been followed as a rough and ready guide in identifying new categories of fiduciary relationships: see Lac Minerals, supra, per Sopinka J., at p. 599, and per La Forest J., at p. 646; Canson, supra, at p. 543; and M. (K.) v. M. (H.), supra, at pp Wilson J. s guidelines constitute indicia that help recognize a fiduciary relationship rather than ingredients that define it. [13] In the present circumstances, I am not prepared to find that Anduhyaun Inc. stands in a fiduciary relationship with the women who reside at its shelter. The measure of control over the activities, responsibilities and rights of the women that reside at the shelter do not extend to the levels the three criteria identified by Madam Justice Wilson suggest. If it did, it would trespass on the individual autonomy of the women and, I surmise, make it difficult, if not impossible, for the services it offers to be provided to, or accepted by, those Anduhyaun Inc. seeks to help. No other duty Anduhyaun Inc. would or could owe its residents was raised.

4 - Page 4 - [14] This leaves the question of negligence and the duty of care that accompanies it. Could Anduhyaun Inc., as the operator of the shelter, have owed a duty of care to Cheyenne Santana Marie Fox such that its breach would represent a cause of action for negligence? In Canadian law, an inquiry into this question is to be undertaken under the tests found in Anns v. Merton London Borough Council, [1977] ABC.L.R. 05/12. Those tests were subsequently rejected in England 1 but recognized and confirmed in Canada. 2 The test is said to have been modified by the Supreme Court of Canada in Coopers v. Hobart. 3 The test consists of two stages. The first is the relationship between the parties: is it sufficiently proximate (close and direct) that it is fair to require the defendant to be mindful of the legitimate interests of the plaintiff? 4 The second stage holds that where the first has been satisfied, that is where proximity has been demonstrated so that there is a prima facie duty of care, the court must consider whether there are any considerations which ought to override or limit the scope of the duty or the class of persons to whom it is owed or the damages to which it may give rise 5 [15] In this case, the first stage is met. When a shelter holds itself out as available to provide abused or pregnant women with a safe place to live and an individual responds by taking up the offer, proximity is demonstrated. To my mind, there would be little quarrel with this proposition if the perpetrator of the assault had been employed by the shelter despite being known as a sexual predator or if he had been identified by Cheyenne Santana Marie Fox as someone who had assaulted her in the past and was, nonetheless, given free access to the shelter. Conversely, there would not be much difficulty in concluding that, whatever duty the shelter takes on, it would not extend to a situation where the attack had taken place in the bar removed from any place controlled by Anduhyaun Inc. [16] Counsel for Anduhyaun Inc. relies on the understanding that there was no connection between Navin Narine and the defendant. This misses the point: the issue is the proximity to Cheyenne Santana Marie Fox and whether that is sufficient to found a duty of care. [17] In this case, the attack took place on the grounds of the facility; albeit, after Navin Nazrine climbed over a wall or a fence. As I perceive it, the necessary proximity exists. Of 1 See: Murphy v. Brentwood DC, [1991] 1 AC 398, [1990] 2 All E.R. 908; and, Caparo v. Dickman, [1990] 2 A.C see: Kamloops v. Nielsen, 1984 CanLII 21 (S.C.C.), [1984] 2 SCR 2, 1984; and, Cooper v. Hobart, 2001 S.C.C. 79; [2001] 3 S.C.R. 537, 206 DLR (4th) 193; [2001] 11 W.W.R. 221; 96 BCLR (3d) 36; as referred to in Psychological Association (Ontario) v. Mardonet, 2016 ONSC 4528 (CanLII), at para Ibid, (for the citation of Cooper v. Hobart); and, Festival Hall Developments Ltd. v. Wilkins, 57 BLR (4th) 210, 2009 CanLII (ON SC), at para. 22, as referred to in Psychological Association (Ontario) v. Mardonet, supra, (fn. 2), at para Psychological Association (Ontario) v Mardonet, supra, (fn. 2), at para. 32; and, Kamloops (City of) v. Nielsen, supra, (fn. 2), at p Cooper v. Hobart, supra, (fn. 2), at para. 13, referring to Kamloops (City of) v. Nielsen, supra, (fn. 2), at p. 10.

5 - Page 5 - course, this does not consider whether the precautions taken to prevent entry (for example, the presence of the wall or fence) or their absence, if none were taken, demonstrates a breach of the duty that would be a matter for trial or where appropriate, a motion or application that would resolve the issue. [18] The question asked by the second stage of the test remains. Is there any reason to override or limit the scope of the duty? It is relevant to remember that what is being considered here is the interpretation of a statutory provision that would allow for an exception to a limitation period that would otherwise apply. Counsel for Cheyenne Santana Marie Fox points out that the exemption found in s. 16(1.3) of the Limitations Act, 2002, is the result of an amendment found in legislation that was passed and received Royal Assent this year (2016): the Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), The policy behind this statute is to improve the protection the law offers to the victims of sexual violence. This is contrary to a proposition that would limit the application of a statutory provision that extends that protection to those that carry the responsibility of a duty of care that would otherwise apply. There is no consideration that overrides the prima facie duty of care that is in place. I am confirmed in this view by the observation that, absent the application of the duty of care, there would be no basis to consider the allegations that Anduhyaun Inc. failed or neglected: (a) to follow prescribed security precautions at a Women s Shelter licensed and funded by the Province of Ontario; (b) to employ policies to maintain a safe environment for the users of the Women s Shelter; and, (c) to interrupt the sexual assault, in circumstances where the victim does not come forward within two years following the assault. [19] Finally, I should point out that, without careful inquiry, it may appear that another limitation provision should apply. As noted earlier, Cheyenne Santana Marie Fox died on April 25, 2013 and the Statement of Claim was issued on April 27, The Trustee Act, 2002, S.O. 2002, s. 38 allows for the commencement or continuation of an action that could have been brought by a person who has died: 38. (1) Except in cases of libel and slander, the executor or administrator of any deceased person may maintain an action for all torts or injuries to the person or to the property of the deceased in the same manner and with the same rights and remedies as the deceased would, if living, have been entitled to do, and the damages when recovered shall form part of the personal estate of the deceased; but, if death results from such injuries, no damages shall be allowed for the death or for the loss of the expectation of life, but this proviso is not in derogation of any rights conferred by Part V of the Family Law Act. [20] Section 38(3) deals with the limitation that would apply:

6 - Page 6 - An action under this section shall not be brought after the expiration of two years from the death of the deceased. [21] Without going further, this would appear to limit the ability of this action to be brought in the name of the Estate of Cheyenne Santana Marie Fox; April 27, 2015 is two days more than two years after April 25, Counsel for the Estate refers to Rule 3.01 of the Rules of Civil Procedure. It provides that where the time for doing an act expires on a holiday, the act may be done on the next day that is not a holiday. Rule 1.03 defines holiday as any Saturday or Sunday. The two-year anniversary of the death of Cheyenne Santana Marie Fox (April 25, 2015) was a Saturday. Thus, as counsel sees it, the issuance of the Statement of Claim on Monday, April 27, 2015 was within the limitation period. This is not a proposition that will serve to exculpate the Estate from the application of the limitation provided by s. 38(3) of the Trustee Act, The treatment of time as referred to in the Rules of Civil Procedure does not extend to limits imposed by statute. Rule 3.01 opens with the words: In the computation of time under these rules.... Similarly, rule 3.02 which deals with the extension of time indicates that...the court may extend or abridge any time prescribed by these rules or an order [Emphasis added]. Whether the time is extended as a result of the recognition of a holiday or holidays (as defined by the Rules of Civil Procedure) or by order of the court, it is only time limits imposed by the rules (or by court order) and not those found in legislation that are affected (see: Brown v. Toronto (City) 70 OR (3d) 417; [2004] O.J. No 1649 (QL); 186 OAC 1, at para. 4). [22] To see if there is authority to extend the time, as suggested by counsel for the plaintiff, it is necessary to turn to legislation, in this case, the Interpretation Act R.S.O. 1990, c. I.11. Section 28(h) states: In every Act, unless the contrary intention appears,... where the time limited by an Act for a proceeding or for the doing of any thing under its provisions expires or falls upon a holiday, the time so limited extends to and the thing may be done on the day next following that is not a holiday; [23] This does not help the plaintiff because, for the purposes of the Interpretation Act, holiday does not include Saturday. In the Interpretation Act: holiday includes Sunday, New Year s Day, Good Friday, Easter Monday, Christmas Day, the birthday or the day fixed by proclamation of the Governor General for the celebration of the birthday of the reigning Sovereign, Victoria Day, Dominion Day, Labour Day, Remembrance Day, and any day appointed by proclamation of the Governor General or the Lieutenant Governor as a public holiday or for a general fast or thanksgiving, and when any holiday, except Remembrance Day, falls on a Sunday, the day next following is in lieu thereof a holiday; ( jour férié ).

7 - Page 7 - [24] Thus, the limitation period under the Trustee Act, 2002 would have expired on Saturday, April 25, [25] It is not the rules or the Interpretation Act that allow for this action to continue despite the passing of the two-year limitation found in the Trustee Act, 2002, s. 38(3). It is the application of the Limitations Act, 2002 s. 16(1)(h) as clarified by s. 16(1.3). There is no limitation period where the action is based on sexual assault. The nature of the action does not change because the victim subsequently died. The death does not remove liability. The provisions of a general statute must yield to those of a special one (generalia specialibus non derogant). In this case, the Trustee Act, 2002 is the general statute dealing with the limitation on any action to be commenced or continued following the death of the plaintiff or prospective plaintiff. The Sexual Violence and Harassment Action Plan Act (Supporting Survivors and Challenging Sexual Violence and Harassment), 2016, which amended the Limitations Act, 2002, was specific to all actions based on a sexual assault. [26] For the reasons reviewed herein, the motion is dismissed. [27] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms: on behalf of the plaintiff, no later than fifteen days after the release of these reasons. Such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs, Costs Outline or case law that may be filed; on behalf of the defendant, no later than ten days thereafter. Such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs, Costs Outline or case law that may be filed; and, on behalf of the plaintiff, in reply if necessary, no later than five days thereafter. Such submissions are to be no longer than two pages, double-spaced. LEDERER J. Date: