Duhaime's Law Dictionary

Substantial Awareness Test Definition:

The realization by a person of the harmful nature of a crime or a tort perpetrated against him/her.

Canadian courts have developed an exception to the rigidity of limitations as regards sexual assault or torts of a sexual nature, recognizing the latent nature of much of the sequelae of these affronts upon a person, especially where the victim is young at the time of the tort or sexual assault.

According to the reasonable discoverability rule (alternatively and arguably more properly stated to be an exception to the general rule of limitations), the clock of limitations does not start to run against the victim or plaintiff of such a crime until she or he can reasonably be held to have discovered the harmful effects of the tort or crime.

In KM v HM, an incest case, Justice La Forest of Canada's Supreme Court wrote:

"In my view the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisite that the plaintiff have a substantial awareness of the harm and its likely cause before the limitations period begins to toll. It is at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes....

"(T)he weight of scientific evidence establishes that in most cases the victim of incest only comes to an awareness of the connection between fault and damage when she realizes who is truly responsible for her childhood abuse. Presumptively, that awareness will materialize when she receives some form of therapeutic assistance, either professionally or in the general community....The presumption will, of course, be displaced when the evidence establishes that the victim discovered the harm and its likely cause at some other time."

Egg cracking openIn TR v Alberta, Justice Paperny of the Alberta Court of Appeal adopted these words:

"... the plaintiff must understand the causal connection between his or her injuries and the sexual abuse for the limitation period to start running. There must be a causal link between fault and damages. In most cases the victim only becomes aware of this link when she realizes who is truly responsible for her childhood abuse.

"... the plaintiff must (1) recognize the wrongful nature of the behavior in question; (2) shift the blame for the sexual abuse off her or his shoulders and onto those of the defendant; (3) identify the harms which she or he has suffered and may still be suffering; and (4) have gained a substantial awareness that the harms which she or he has suffered, and may still continue to suffer, were caused by the abuse perpetrated by the defendant.

"These considerations are instructive in assessing when a victim of sexual abuse can be said to have known or ought to have known both the nature of the injuries and the effects of those injuries."

In a 2008 decision, ME v Spoule, Justice Chapnik of Ontario wrote:

"The doctrine of reasonable discovery for victims of sexual assault means that the victim has a substantial awareness of the harm and its likely cause before the limitations period begins to toll.

"The jurisprudence has established four elements that must be satisfied before the substantial awareness test is met: Not only must the plaintiff recognize the wrongful nature of the impugned behaviour, but she must shift the blame from herself to the defendant, identify the harms she has suffered and continues to suffer, and gain a substantial awareness that those harms were caused by the defendant’s abuse."


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