F.D. v. Canadian Broadcasting Corporation, Evan Soloman and Farid Haerinejad, 2017 BCSC 589
Before: The Honourable Madam Justice DeWitt-Van Oosten
Reasons for Judgment
| Counsel for the Plaintiff: | Ib S. Petersen, William T. Faminoff |
| Counsel for the Defendant: | Daniel W. Burnett, Q.C. |
| Place and Date of Hearing: | Vancouver, B.C.
March 22, 2017 |
| Place and Date of Judgment: | Vancouver, B.C.
April 7, 2017 |
[1] The plaintiff has filed a civil claim against three defendants, including the Canadian Broadcasting Corporation (the “CBC”), in which he claims damages for negligence and breach of privacy.
[2] In early 2007, CBC aired a documentary entitled “Out in Iran”, which portrayed the struggle of the gay, lesbian, bisexual and transgender community in Iran. The documentary was filmed in Tehran. For part of it, CBC used a hidden camera in a coffee shop that was known, and described in the documentary, as a gathering place for gay men. The plaintiff’s image was captured on film. The plaintiff says he was not given the opportunity to cover his face, or take other measures to conceal his identity.
[3] The airing of the documentary, as well as its subsequent circulation on the Internet, resulted in the plaintiff’s sexual orientation becoming known. This was not something he wanted to have publicly revealed.
[4] The plaintiff attests that the consequences of public disclosure have been severe for him, including: estrangement from his family in Iran; ostracism; loss of employment opportunity; detention and persecution by Iranian authorities; psychological and emotional trauma; and, physical and sexual violence. As a result of the public exposure, he felt he had little choice but to leave Iran and seek refuge elsewhere. Initially, he fled to Turkey. He now resides in Canada.
[5] The notice of civil claim was filed on August 15, 2016.
[6] The CBC does not dispute that a hidden camera was used during production of the documentary, but says there was “group consent” for the filming in the coffee shop where the plaintiff was situated. As a preliminary matter, it also argues that the plaintiff’s claim is barred by the Limitation Act, R.S.B.C. 1996, c. 266 (the “Act”), and/or the common law doctrine of laches.
[7] The CBC brought a summary trial application for resolution of these two issues. The plaintiff agrees that the question of “timeliness” is suitable for a summary trial.
[8] Rule 9-7(15) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), authorizes the Court to grant summary judgment “on an issue” unless: (1) the Court is unable, on the whole of the evidence, to find the facts necessary to decide the relevant issues of fact or law; or (2) the Court is of the opinion that it would be unjust to decide the issues on the application.
[9] I am satisfied that a summary trial is appropriate in this case. The legal issues raised on the application are discrete; the parties have tendered a comprehensive evidentiary foundation from which these issues can be determined; and, for the purpose of Rule 9-7(15), there are few, if any facts in dispute.
[10] The summary trial was heard on March 22, 2017. The only defendant who participated was the CBC. It is my understanding that the other two defendants have not yet been served with the notice of civil claim. They were both employees of the CBC when the documentary was filmed.
- BACKGROUND
- Plaintiff’s Circumstances in Iran
[11] The plaintiff was born in Tehran in 1987 and raised in a traditional Muslim family. He realized he was gay at age 14. He hid this fact from his family and friends. According to the plaintiff’s affidavit, it was widely known in Iran that gays could be severely punished and Iranian citizens were encouraged to expose them to the authorities.
[12] By the time the plaintiff completed high school, he was communicating with other gay men in chat rooms on the Internet. He would meet with some of them to socialize, but was always careful to conceal his sexual orientation.
[13] In March 2007, the plaintiff was 19 years old and a university student. He was studying English. His long-term vision was to open an English language school in Iran.
[14] In early March 2007, the plaintiff received a phone call from a male cousin, telling the plaintiff that he had seen him in a documentary about civil rights for gays in Iran. The plaintiff’s cousin was derogatory and threatened to physically harm him.
[15] After the call, the plaintiff obtained a copy of the documentary and watched it. The documentary was produced and aired by the CBC. The plaintiff saw his face exposed in the production. He attests that prior to March 2007, he was not aware he had been filmed by the CBC.
[16] What happened next was severe. The plaintiff’s parents were humiliated and angry with him. They wanted to isolate him from the public. He remains alienated from his family.
[17] The same month he saw the documentary, the plaintiff was physically assaulted by a stranger who claimed that he saw him in the film. Police arrived. The plaintiff was arrested and taken to a jail in Tehran. Police told him they knew he was gay. He spent a week in filthy conditions in jail, where he was beaten and raped by other inmates. He was forced to “sign papers” stating that he would not associate with gays in Iran. He was traumatized and feared for his safety.
[18] Upon his return to university, the plaintiff says he suffered discrimination and abuse from his fellow students, teachers and university employees. He was forced out of the university in August 2007 and lost his employment as a hairstylist. His employer and co-workers refused to work with him.
[19] Because he was no longer attending university, the plaintiff was required to complete mandatory military service in Iran. He was rejected from the military service on the basis that he had a “sexual disorder”. This designation made it very difficult for him to obtain employment in Iran. He also began receiving threats from
the Iranian government. State officials attended at his home to obtain information from his computer. His life in Iran became unbearable and unsafe.
- Plaintiff’s Circumstances in Turkey
[20] In June 2011, the plaintiff fled to Turkey and made a refugee claim with the Office of the United Nations High Commissioner for Refugees (“UNHCR”). It had never been his intention to leave Iran, but he felt doing so was necessary to be safe.
[21] In Turkey, it was the plaintiff’s experience that the Turkish government also discriminated against gays. He was interrogated by police and it was made clear to him that he could be deported at any time without due process. He was made subject to travel restrictions. He was allowed only very basic medical services; had few opportunities to obtain employment; and he required financial support from his aunt to survive. He was afraid of being harmed because of his sexual orientation and felt hopeless. The plaintiff contemplated suicide.
[22] In September 2011, the UNHCR recognized the plaintiff as a refugee on the basis of his sexual orientation.
- Plaintiff’s Circumstances in Canada
[23] In 2014, the plaintiff was sponsored by the United Church to come to Canada as a refugee. He arrived in Calgary in February 2014. He had no family or friends in Canada and, initially, no place to live. He had a limited understanding of Canadian culture or the country’s institutions. He says he spoke only basic English.
[24] In July 2014, the plaintiff spoke to a lawyer in Ontario about his situation. He understood from this conversation that the CBC was a “large government owned corporation” and suing for damages would be very difficult. The plaintiff says he felt there was little that could be done to assist him. He had not yet received permanent residency from the Canadian government and based on his prior experience with state officials, he believed pursuing a lawsuit against the CBC could jeopardize his residency status.
[25] The plaintiff learned of his permanent residency in September 2014. In 2015, a co-worker said she could put him in touch with a Calgary law firm. In October of that year, he was told that the law firm could not help him because the CBC was a client. The plaintiff says he lost hope that any Canadian lawyers would be willing to help him because the CBC was a government corporation.
[26] He moved to Vancouver in March 2016. That summer, the plaintiff was put in contact with a law firm in Vancouver. Legal counsel met with him. A notice of civil claim was filed in August 2016.
- The Documentary
[27] The documentary first aired in February 2007. It was produced for the CBC’s “Sunday night” show. The CBC’s involvement in the production is readily apparent from the documentary itself. The defendant’s name and logo appears more than once on screen.
[28] It is unclear whether the documentary was ever posted on the CBC’s Internet website; however, if it was, the application material indicates that because of system changes made by the CBC, the documentary has likely not been available through this website since 2010.
III. LEGAL PRINCIPLES and ANALYSIS
- The Limitation Defence
(i) The Legal Framework
[29] As noted, the plaintiff’s claim is based in allegations of negligence and a breach of privacy contrary to the Privacy Act, R.S.B.C. 1996, c. 373. Section 1 of the Privacy Act makes it a “tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”.
[30] The plaintiff acknowledges that he became aware of the documentary in March 2007 and watched it that same month; that he began to experience the
adverse consequences of his public exposure in March 2007; and, that he knew in March 2007 the documentary was produced by the CBC.
[31] However, he did not file a notice of civil claim until August 2016. This was more than nine years past the date on which he first began suffering the injuries for which he now claims damages.
[32] The plaintiff accepts that the Act applies to his claim. The Act was in place in 2007 when his cause of action arose and it prescribes a two-year limitation period for actions in negligence and breach of privacy.
[33] Section 3 of the Act sets out the limitation period:
(2) After the expiration of 2 years after the date on which the right to do so arose a person may not bring any of the following actions:
(a) subject to subsection (4)(k), for damages in respect of injury to person or property, including economic loss arising from the injury, whether based on contract, tort or statutory duty;
…
(f) for tort under the Privacy Act;
…
[34] Depending on the circumstances, the limitation period can be “postponed”. Section 6(4) of the Act specifies the basis for doing so:
(4) Time does not begin to run against a plaintiff or claimant with respect to an action [for personal injury] until the identity of the defendant or respondent is known to the plaintiff or claimant and those facts within the plaintiff’s or claimant’s means of knowledge are such that a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard those facts as showing that
(a) an action on the cause of action would, apart from the effect of the expiration of a limitation period, have a reasonable prospect of success, and
(b) the person whose means of knowledge is in question ought, in the person’s own interests and taking the person’s circumstances into account, to be able to bring an action.
…
(6) The burden of proving that the running of time has been postponed…is on the person claiming the benefit of the postponement.
[35] The scope of s. 6(4) was addressed in Brooks v. South Fraser Health Region, 2009 BCCA 150. Justice Tysoe, at para. 17, held that postponement of the two-year limitation period is not available where:
(i) the identity of the defendant is known to the plaintiff;
(ii) the plaintiff has certain facts [including breach of a duty that caused injury] within [his or her] means of knowledge;
(iii) a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that an action would have a reasonable prospect of success; and,
(iv) a reasonable person, knowing those facts and having taken the appropriate advice a reasonable person would seek on those facts, would regard the facts as showing that the plaintiff ought, in [his or her] own interests and taking [his or her] circumstances into account, to be able to bring an action.
[36] To obtain postponement, a claimant must establish that at least one of the first, third and fourth of the above-noted factors was not satisfied before the “critical date”, which was defined in Brooks as “the date determined by subtracting the length of the applicable limitation period from the date on which the action is commenced” (at para. 18).
[37] The “critical date” in this case is August 15, 2014.
[38] The plaintiff relies upon the fourth factor under s. 6(4) in arguing that his claim should be allowed to proceed, notwithstanding that it was filed nine years after the documentary aired and he first began experiencing related injury.
[39] In Novak v. Bond, [1999] 1 S.C.R. 808, at para. 90, McLachlin J. (as she then was) interpreted s. 6(4)(b) of the Act and concluded that “delay beyond the prescribed limitation period is only justifiable if the individual plaintiff’s interests and circumstances are so pressing that a reasonable person would conclude that, in light of them, the plaintiff could not reasonably bring an action at the time his or her bare legal rights crystallized”.
[40] Where this occurs, the limitation period will not begin to run until filing an action became “reasonably possible” for the plaintiff (Novak, at para. 84).
[41] Compelling circumstances within the meaning of Novak may exist where: “the costs and strain of litigation would be overwhelming to the plaintiff; the possible damages that are recoverable would be minimal or speculative; or, other personal circumstances, in their cumulative effect, make it unfeasible to initiate an action” (Novak, at para. 85). This list is not exhaustive. Decisions that are “purely tactical” play no role in the analysis (Novak, at para. 86).
[42] The plaintiff argues that in light of Iran’s religious, social and cultural context at the time his cause of action arose, as well as everything that happened between then and his settlement as a refugee in Canada, a reasonable person would not conclude that someone in the plaintiff’s position could bring an action until February 2015.
[43] This Court considered s. 6(4) of the Act in Fidler v. Forensic Psychiatric Institute, a Hospital, 2015 BCSC 1241. I find the case informative.
[44] In Fidler, the plaintiff brought an action against the Forensic Psychiatric Institute (“FPI”), as well as two psychiatrists who were employed by FPI and other, unnamed members of the Institute’s staff. Mr. Fidler was admitted to FPI on separate occasions in 2007 and 2008 to assess his fitness to stand trial in criminal proceedings. On both admissions, he was certified as an involuntary patient under the province’s mental health legislation. Medications were administered without his consent.
[45] In April 2013, Mr. Fidler filed a claim for damages. He alleged that the medications caused “indescribable damage” (at para. 34). This included “extreme depression, suicidal thoughts, thoughts of violent rage, heart palpitations, and tiredness” (at para. 34).
[46] The defendants raised a limitation defence and sought a summary determination of the issue. They argued that Mr. Fidler’s cause of action arose when
the medications were administered; that the Act prescribed a two-year limitation period; and, that he fell outside the allowable timeframe. Mr. Fidler filed his claim “almost six years after the first admission to the FPI and four and a half years after his second admission” (Fidler, at para. 37).
[47] In response, Mr. Fidler made a “compelling” circumstances argument. Among other things, he asserted that:
…
(b) the necessity of recuperating from the alleged detrimental effects of the medication coupled with the stress of preparing and conducting his own defence in his contemporaneous criminal proceedings made it unreasonable to expect him to bring an action earlier; and
(c) he was incapable of managing his own affairs or substantially impaired because of the effects of the medication (Fidler, at para. 41).
[48] The summary trial Judge found that Mr. Fidler’s claims arose out of conduct he was aware of at the time it occurred; he “immediately perceived that damage had been done”; and, he knew that he had an option of bringing a lawsuit against FPI at the material time, even though he chose not to seek the advice of a lawyer (Fidler, at para. 73).
[49] To the extent that Mr. Fidler’s personal circumstances justified postponement of the two-year limitation period, the Judge was not satisfied that the test from Novak was met.
[50] Mr. Fidler argued that after being discharged from FPI, he found it necessary to leave British Columbia to “protect his life and safety” and to determine how best to repair the damage he had suffered (Fidler, para. 78). However, these were not “serious, significant, and compelling circumstances” from the perspective of the trial Judge. The evidence did not support a finding that “avoiding [a civil claim] was a necessary component to [Mr. Fidler’s] recovery from the alleged ill effects of his stays at the FPI” (Fidler, at para. 80). There was no evidence to suggest that initiating a civil action “would have been counterproductive to aim [sic] of restoring his health” (Fidler, at para. 80).
[51] The action was dismissed on grounds that it was barred by operation of the Act (Fidler, at para. 89). Mr. Fidler took steps to appeal this determination. He failed to file his notice of appeal in time and sought an extension. The application was dismissed by the Court of Appeal (in Chambers) on the basis that the appeal was “bound to fail”: 2016 BCCA 83, at para. 4.
(ii) Positions of the Parties
[52] The plaintiff’s argument is not dissimilar from the one made in Fidler, although I appreciate that it is grounded in a different factual matrix. The plaintiff says that as a result of his personal circumstances, it was not reasonably possible for him to file a claim against the CBC at any time before the “critical date” of August 15, 2014. Like Fidler, part of the justification offered for the delay in filing is the plaintiff’s need to “protect his life and safety”.
[53] In support of his argument, the plaintiff says he grew up in a repressive society, one in which gays are subject to discrimination, harassment and persecution, including from state agents. According to the material tendered on the summary trial, they face arrest, imprisonment, sexual assault, death and flogging. Within this social context, he argues it is highly unlikely that he would have been able to take any form of action against CBC while still situated in Iran. He felt threatened and unsafe in Iran and, as a result, was forced to flee to Turkey.
[54] As a refugee in Turkey, the plaintiff similarly did not feel safe. He was subject to significant restrictions and under the constant threat of being returned to Iran. From his perspective, it is also highly unlikely that he would have been able to take any form of action while in Turkey.
[55] The plaintiff argues that when he arrived in Canada in February 2014, he had:
… an understandable, well-founded and reasonable fear of “government” and government agencies, and in particular those involved in the “justice” system, police and courts. (Application Response, para. 23.)
[The Plaintiff] came with his own cultural, emotional and mental baggage, shaped by growing up in Iran … he also came as a gay man, who had been victim of a repressive, intolerant, and fundamentalist Shi’a Islam government. (Application Response, para. 8.)
[56] As a result, he required time to acclimatize himself to Canadian society, including its “institutions and values” before he was in a position to initiate a civil claim. For some time after his arrival, he remained socially isolated as a refugee; there were language barriers; and, he faced practical impediments to taking a claim forward, including housing and the need to secure employment.
[57] The plaintiff says he required at least one year to settle in Canada before he reasonably had the capacity to move forward with an action against the CBC. This would have been February 2015. He filed his claim in August 2016, 18 months later.
[58] The CBC argues that the plaintiff has not met the test for postponement under s. 6(4) of the Act. He bears the onus of doing so on a balance of probabilities.
[59] It is the defendant’s position that even if this Court accepts the plaintiff’s evidence that filing a civil claim in Iran was not reasonably possible, he could have initiated his action once he was in Turkey. He had the wherewithal to apply for refugee status based on what occurred to him in Iran. There was nothing precluding him from filing a notice of claim arising out of this same set of circumstances.
[60] At the very least, when the plaintiff arrived in Canada in February 2014, his circumstances had changed. He was away from the regimes that he previously experienced. According to the affidavit material, he found employment and housing in relatively short order. He may have lacked sophisticated English language skills, but he was able to reach out and speak to a lawyer from Ontario in July 2014. He followed-up with a letter, explaining the specifics of his situation. The possibility of legal action against the CBC was clearly on his mind; he was able to engage in conversations about it; and, he was no longer living in a society where the state persecutes individuals for their sexual orientation.
[61] It is the CBC’s position that the plaintiff could have brought his action well before the “critical date” of August 15, 2014.
(iii) Analysis
[62] On the whole of the material before me, I am satisfied that from May 2007 until he left Turkey at the start of 2014, the plaintiff’s personal circumstances were such that the test for postponement of the two-year limitation period under s. 6(4) of the Act has been met. In my view, the plaintiff’s circumstances over this seven-year period were more “compelling” than the ones in Fidler. The fact that the plaintiff was granted refugee status by the UNHCR in 2011 affirms the legitimacy of his personal safety concerns and the need for him to remove himself from Iran.
[63] I accept the plaintiff’s evidence that he had no realistic capacity to bring an action against the CBC while physically situated in Iran and enmeshed within a social context where gays are subject to persecution by the state. His personal detention by state authorities, imprisonment and the violence he experienced while incarcerated in Tehran shows, in stark terms, the risks that he faced through public exposure. Taking steps to assert and protect his interests as a gay man when living in Iran would likely have invited further monitoring, intervention and/or harassment by the state.
[64] This was not a speculative risk. The plaintiff’s evidence is supported by the CBC documentary, which he tendered as part of his case on the summary trial.
[65] I have watched the documentary. It reports that members of the gay community in Iran fear persecution; that persons who identify themselves as gay, or are suspected of being so, can be “arrested, tortured and killed”. The film displays photographs of persons who have been “lashed” for being gay. It highlights the execution of two young men and reports that these executions were in response to their homosexuality; it shares the fact that there are “many reports” of the Iranian government tracking or monitoring gays; and, a number of people who are spoken to in the documentary express fear about being filmed and having their identities made known. At the start of the documentary, the CBC describes the persons who gather in the coffee shop as “risking their lives” by meeting there. This would have included the plaintiff.
[66] I also accept the plaintiff’s evidence that when he fled to Turkey, the things that happened to him in Iran would have been fresh in mind, including the trauma of his incarceration and his fear of and distrust for state institutions. Understandably, this would have carried significant impact on not only his psychological well-being, but the ability to move forward with a legal action.
[67] While in Turkey, the plaintiff was focused on personal survival: physical, psychological and emotional. He was subject to significant restrictions and under the constant threat of being returned to Iran, the place in which he was persecuted for his sexual orientation, including detention by state authorities.
[68] Neither party has referred me to a case with factual similarity to this one, where the plaintiff’s social condition, including the fear of state persecution, has been advanced as a basis for postponement of a limitation period. However, I do not read Novak as foreclosing this possibility. Instead, whether circumstances exist that are sufficient to invoke s. 6(4) of the Act depends on an individualized, case-by-case assessment.
[69] In my view, the plaintiff’s circumstances while in Iran and Turkey were “so pressing” that it cannot reasonably be said that he could bring an action within the prescribed limitation period between the time he viewed the CBC documentary and when he left Turkey (Novak, at para. 40).
[70] This would have required that he file an action against a defendant in a foreign jurisdiction at a time when he was undergoing intense personal turmoil, had significantly limited resources and was engaged in an adversarial relationship with the state. According to the evidence, asserting rights or seeking a remedy based on sexual orientation in Iran carried a foreseeable risk of inviting greater scrutiny by an already-monitoring state, and possible intervention. In Turkey, the plaintiff was dependent on a non-acrimonious relationship with the state to avoid his removal back to Iran.
[71] However, in February 2014, the plaintiff’s personal circumstances were altered in a fundamental way.
[72] He obtained refugee sponsorship to Canada and arrived on February 26. He found work in March and had his own place to live by May. Most important, in June 2014, he was contacted by a reporter who suggested that he get in touch with a lawyer in Ontario to discuss his situation. The plaintiff communicated with the lawyer in July 2014. He was asked to provide greater details in writing. He followed-up and prepared a letter to this effect. There were no adverse consequences for doing so.
[73] I have reviewed a copy of the letter, which is attached to one of the plaintiff’s affidavits. It lays out his personal circumstances:
In 2006, the CBC filmed and produced a documentary about homosexuality in Iran. The documentary described how homosexuals were being persecuted and even executed by the Government under Islamic law. The CBC used a hidden camera in a restaurant and filmed me and others who were in the restaurant at the time. This exposed me as a homosexual to all who saw it. At no time was I asked for nor did I give permission for this filming.
About one month later the documentary was shown in North America and elsewhere. Soon thereafter I received a phone call from my cousin who told me that he saw the documentary and that he wanted nothing further to do with me. I then obtained a copy of the documentary which was available for purchase on the streets in Iran. I was shocked to see that I was “outed” to the whole nation. I was very scared – and with good reason because I was soon arrested and held in jail for one week before I was released with bail in the form of conditions enabling them to recall me at any time (bail money was not required). Shortly thereafter, in early 2007, security officials at the Islamic Azad University of Iran where I was a student advised me that I was expelled from the University. At the same time I was fired from my part-time job as a hairdresser on the grounds that the salon couldn’t tolerate having me there if the Government wanted me out of there. I then relied on my parents for support since I was fired from all jobs as soon as my employers found out about the documentary. (or the government informed them to)
In 2008 I found a job with a hairdresser who was sympathetic and permitted me to work and be paid under the table so that the Government would not find out. This lasted for 3 years until, in 2011, I discovered that the Government was again going after people who were identified in the CBC documentary. Then I learned that the Government went to my parents’ house. I was frightened and did not wish to stay around to find out what the Government was going to do with me, so three days later I left Iran.
I fled to Turkey and obtained refugee status. I stayed in Turkey for three years until I came to Canada on February 26, 2014.
[74] The letter is dated July 20, 2014. It is apparent that the plaintiff had the capacity to detail the specifics of his complaint against the CBC, and that even though he was told in his earlier conversation with the Ontario lawyer that the CBC was a “large government owned corporation”, this did not stop him from moving to the next step and providing the additional information that was asked of him.
[75] The evidence demonstrates that by June and July 2014, at the latest, the plaintiff had solidified the intent to seek legal advice and took steps to do so. The third of the four s. 6(4) factors was satisfied (Brooks, at para. 32).
[76] The plaintiff did not receive a response to his letter, but there is no indication from his evidence that he was in any way prevented from reaching out to the Ontario lawyer a second time; making other forms of enquiry about bringing a civil action; or, taking the requisite procedural steps himself. Instead, he appears to have simply let it go until the issue was re-invigorated through conversations with a work colleague in late 2015.
[77] I accept that after his arrival in Canada, the plaintiff was still experiencing (and likely continues to experience) the adverse effects of what he suffered between 2007 and his arrival in Canada, including a lingering distrust of state institutions, or entities that he believed to be state-related.
[78] However, notwithstanding these effects, the plaintiff was able to arrange for refugee sponsorship to Canada; apply for permanent residence status upon his arrival here; find employment and housing; and contact, communicate with and provide further specifics to legal counsel in July 2014, with a view to commencing legal action against the CBC.
[79] The plaintiff’s ability to navigate and manage these various issues, including steps taken in furtherance of a possible civil claim, belies his suggestion that he was not reasonably in a position to start an action until February 2015.
[80] It is clear from the evidence that prior to the “critical date” of August 15, 2014, he was not afraid to disclose his personal circumstances to others in Canada, including details about what he had suffered in Iran and Turkey, or to make enquiries about initiating a claim. His follow-up letter in July 2014 was sent even though the plaintiff believed that the CBC was a “large government owned corporation”.
[81] Whatever fear or distrust he may have been experiencing about Canada’s institutions (real or perceived) in July 2014, it was not enough to keep him from taking this additional step. He had the capacity to move forward.
[82] In his affidavit, the plaintiff attests that during this time, he was worried that filing an action against CBC would jeopardize his residency status because he was not sure how the “government” might respond. It was not until he received his permanent resident card in/about September 2014 that he felt more secure. A copy of the card is attached to the plaintiff’s affidavit. It appears to have been issued on July 10, 2014, for a term of five years.
[83] However, even after receiving the resident card, the plaintiff did not move a claim forward. It was not until the next year, in late 2015, that a further enquiry was made of a law firm in Calgary after the plaintiff discussed his story with a friend. He was told that the law firm could not assist him because of a conflict of interest. He made no further attempts to seek assistance until the summer 2016.
[84] Although factually distinct, I find Taylor v. Paulson and Terrace Hotel Ltd., 2005 BCSC 1249, instructive. There, the plaintiff was able to initiate and follow-through on a claim for criminal injury compensation; apply for long-term disability benefits; and cooperate with prosecutors in a criminal case, including contacting the Crown prosecutor’s office from time to time to enquire about the status of the case.
[85] And yet, she sought postponement of the prescribed limitation period in filing her related civil claim on grounds that her personal medical circumstances justified the delay. The fact that she was able to manage other substantive issues after the
time at which the limitation period would have ordinarily commenced undermined the strength of her Novak argument (Taylor, at para. 37).
[86] In my view, the same can be said here. On the evidence, the plaintiff’s circumstances since his arrival in Canada were not as compelling as they were in Iran and Turkey. It is clear from his affidavit that he faced challenges in his new life here, and I accept that fact; however, the evidence does not substantiate a level of personal difficulty that rendered it not reasonably possible to file a notice of civil claim before August 15, 2014.
[87] The plaintiff attached a published report to his affidavit that speaks to the challenges of resettlement for refugees, including (but not limited to): learning how to navigate through a new city; arrange for support services and medical care; and open bank accounts. However, this information is general in nature and there was no evidence before me that related these challenges in any significant way to the plaintiff’s individual circumstances, particularly in relation to the extent to which they impacted his personal capacity to file a civil action.
[88] The merits of the plaintiff’s claims against the CBC are not before me. The only issue for me to determine is whether the notice of civil claim is statute-barred.
[89] In this regard, I am not satisfied that the plaintiff has met his onus under the Act. It may not have been ideal for him to file his notice of civil claim until he had the opportunity to sit down with legal counsel in August 2016 and receive positive affirmation about proceeding with a civil action, but this is not the test under Novak.
[90] As noted in that case, s. 6(4)(b) of the Act authorizes postponement to a “time at which … the bringing of a suit is reasonably possible, not when it would be ideal from the plaintiff’s perspective to do so” (Novak, at para. 84, emphasis in the original).
(iv) Plaintiff’s Alternative Argument
[91] In his amended reply filed December 7, 2016, the plaintiff put forward an alternative position on the limitation defence that would avoid the two-year limitation period:
[B]ecause it was a foreseeable result of the Defendants’ conduct that the Plaintiff would suffer, as he did, sexual assault, or sexual misconduct the 2-year limitation period does not apply.
[92] As noted, the plaintiff was sexually assaulted during his detention in Tehran. The assaults were perpetrated by other inmates in the jail. He attests that Iranian police were aware of the assaults, but did nothing to assist him.
[93] The plaintiff says the risk of sexual assault from public exposure in the documentary was reasonably foreseeable to the CBC, given its knowledge and understanding of the persecution of gays in Iran. Indeed, the documentary speaks to this very issue and acknowledges that gays living there are subject to arrest and rape.
[94] In light of this context, the plaintiff submits that in addition to negligence and breach of privacy, his civil action is also appropriately characterized as a matter involving sexual assault. If such is the case, then it is not subject to a prescribed limitation period and the claim against the CBC could have been filed at any time.
[95] The plaintiff acknowledges that his alternative position is “novel”. Only brief time was spent on this argument at the hearing. He has provided no authorities in support of the sexual assault characterization.
[96] In response, the defendant argues that the suggested alternative to postponement under s. 6(4) of the Act “flies in the face of the pleadings and common sense”.
[97] The March 2007 assaults are referenced in the claim’s Statement of Facts. They are also identified in the claim as a component of the “injuries and/or damages” that were sustained as a result of the acts or omissions of the CBC.
[98] In the plaintiff’s written submissions on the summary trial, the arrest, detention and sexual assaults in Iran are described as “damages”.
[99] There is no suggestion in the pleadings that a CBC representative or employee participated in the sexual assaults; was present when they occurred; authorized or knowingly facilitated their commission; provided the opportunity for them to be committed; or, was aware of the assault(s) at the time they were perpetrated.
[100] The Act exempts claims of sexual assault from a limitation period. See C.(R.) v. McDougall, 2008 SCC 53, at para. 6. The relevant provision reads:
3(4) The following actions are not governed by a limitation period and may be brought at any time:
…
(l) for a cause of action based on sexual assault, whether or not the person’s right to bring the action was at any time governed by a limitation period.
[101] The current Limitation Act, S.B.C. 2012, c. 13, takes this same approach. This legislation repealed and replaced the Act effective June 1, 2013:
3(1) This Act does not apply to the following:
…
(j) a claim relating to sexual assault, whether or not the claimant’s right to bring the court proceedings was at any time governed by a limitation period.
[102] In my view, the action brought against the CBC is not a “cause of action based on sexual assault” or a “claim relating to sexual assault”. Instead, the conduct said to have given rise to legal liability has been framed as negligence in the publication of the plaintiff’s image, and breach of privacy. The assaults that occurred in the Tehran jail are put forward as one form of harm suffered by the plaintiff and relevant to the issue of damages, in the event liability is established.
[103] There is no question that the law allows defendants to be held vicariously liable for sexual assault, depending on the circumstances. See, for example, P.(J.) v. Sinclair, [1997] B.C.J. No. 1327 (C.A.); B.(P.A.) v. Curry, [1997] 4 W.W.R. 431 (B.C.C.A), aff’d [1999] 2 S.C.R. 534; and T.(G.) v. Griffiths, [1997] 5 W.W.R. 203 (B.C.C.A.).
[104] I am also alive to the fact that s. 3(4) of the Act has been broadly construed to include claims that traditionally may not have been viewed as being “based on sexual assault”. See, for example, E.(D.) (Guardian ad litem of) v. British Columbia, 2005 BCCA 134, in which involuntary sterilization was held to constitute a “cause of action based on sexual assault” and, therefore, was exempt from a statutory limitation period.
[105] However, the plaintiff has not pleaded vicarious liability for the sexual assaults that were committed by third parties in Tehran. Rather, vicarious liability is pleaded only for “the acts and/or omissions of [the CBC’s] employees and/or contractors for such acts and/or omissions [as] perpetrated within the course of their employment and/or contractor relationship” (emphasis added).
[106] Moreover, I note with specific reference to the decision in E.(D.), that the causes of action advanced in that case included abuse of public office, breach of fiduciary duty, negligence and the intentional tort of battery. The act of involuntary sterilization, in which the claims were grounded, was accepted to constitute an assault (E.(D.), at para. 72). The issue in the case was whether the assault was sexual in nature.
[107] In this case, the plaintiff has not pleaded the intentional tort of battery against the CBC, whether based on vicarious liability or otherwise. Nor is there any allegation that CBC representatives or employees committed assault. As such, E.(D.) is distinguishable.
[108] I hold that the limitation period applicable to this case is the two-year period prescribed by s. 3(2) of the Act.
- Laches
[109] In light of the conclusion I have reached on the limitation defence, it is not necessary for me to address the defendant’s alternative argument on the summary trial; namely, that the notice of civil claim should be summarily dismissed on the basis of the common law doctrine of laches.
- Application to Strike the Pleadings
[110] As a further alternative to the limitation and laches arguments, the CBC’s notice of application included a request that the claim be struck under Rule 9-5 on grounds that it discloses no cause of action.
[111] This argument was not pressed at the hearing on March 22 and, in any event, my determination on the limitation defence renders it moot.
- DISPOSITION
[112] For the reasons provided, I have determined that the plaintiff’s notice of civil claim against the Canadian Broadcasting Corporation is statute-barred pursuant to the Limitation Act, R.S.B.C 1996, c. 266. As such, I am obliged to dismiss the claim against this defendant.
[113] Pursuant to Rule 14-1(12), CBC is entitled to costs on the application, to be assessed in accordance with Scale B.
“DeWitt-Van Oosten J.”