Ultimate limitation periods are particularly problematic for those who have suffered historical abuse.
Courts and legislatures have devised various strategies for avoiding, or at least minimizing, the harshness of the limitation defence, including non-judicial settlements, the discoverability principle, postponement in cases of wilful concealment and the elimination of limitation periods for sexual and physical abuse.
36) It calls for a personalized and contextualized determination of the date upon which the limitation period should begin to run; it is said to be premised on principles of equity and seeks to avoid the strict application of limitation periods.
The discoverability principle has been criticized as creating uncertainty in the law and undermining the traditional rationales for limitation periods, including closure for potential defendants and the encouragement of potential plaintiffs to pursue their claims in a timely manner.
Notwithstanding the discoverability principle, limitation periods continue to be a major barrier for some claimants, especially those who allege non-sexual abuse.
For such claimants, ultimate limitation periods are punitive and insensitive to the nature of their injuries or the circumstances of their abuse.
Some legislatures have eliminated limitation periods for claims based on misconduct of a sexual nature, (57) and/or abuses in the context of intimate, trust or dependency relationships.
Notwithstanding the rationales for general and ultimate limitation periods, limitation periods have been eliminated for certain causes of actions, or claims, arising from certain relationships as a matter of public policy.
Sexual abuse is considered to be more serious than other forms of abuses, at least in jurisdictions such as British Columbia, Saskatchewan, Manitoba and Newfoundland and Labrador, where there are no limitation periods for sexual abuse claims.
Many of the rationales for eliminating limitation periods for sexual abuse are also applicable to non-sexual abuse, especially childhood abuse.