Chamber judge failed to consider familial exception to limitation period in assault case: Sask Court

Striking of civil claim was reversed

Chamber judge failed to consider familial exception to limitation period in assault case: Sask Court

The Saskatchewan Court of Appeal reversed the striking of civil claim of assault, ruling that it was not “plain and obvious” that the exception to the limitation period in an assault case did not apply for a significant other and her siblings.

Ningnan Zhang sued Shanyse and Deborah Wehner, alleging that they restrained him while Keith Wehner physically assaulted him. The incident happened in 2019 and Zhang filed the case in 2021, more than two years after the incident.

The three respondents sought to strike the claim entirely, alleging that the two-year general limitation period in The Limitations Act, SS 2004, c L-16.1 had expired, which was granted by the chambers judge.

Zhang appealed, alleging that the chambers judge failed to recognize the exception to the limitation period rule.

The appellate court agreed.

Limitation period exempts assault by significant other and the latter’s siblings

In Zhang v Wehner, 2023 SKCA 22, section 16 of the Limitations Act provides for an exception to the rule on the limitation period, said the court. The exemption states that the limitation period shall not apply to battery or assault if, at the time of the injury, one of the parties who caused the injury was living with the claimant in an intimate and personal relationship.

While certain facts of the matter are heavily in dispute, several key ones are not, said the court. Both parties did not contest Zhang living with Shanyse and that during this time, they were in a relationship, said the court.

Clearly, the relevant section was “primarily aimed at removing the time limit in which to sue for physical abuse by a spouse or parent, although it also applies in other types of dependent relationships,” said the court.

The appellate court concluded that the chambers judge erred by failing to consider this exception. Further, it was error for the judge to strike the statement of claim against Deborah and Keith, since it was not plain and obvious that section 16 did not apply, said the court. Whether it ultimately does not apply is left for another day, said the court.

Thus, the appeal was allowed and the case was remitted back to the lower court for consideration.

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