B.C. Appeal Court allows lawsuit to go ahead after girl allegedly lured into sex

Appeal Court overturns lower court ruling that threw out mom's lawsuit after she dropped daughter off at what she thought was friend's home

Published Sep 21, 2024  •  Last updated 0 minutes ago  •  3 minute read

Kelowna Law Courts. Photo by Nick Eagland /PNG

When a Kelowna dad showed up in the morning to pick up his daughter from a sleepover at a friend’s house where her mom had dropped her off the night before, she was nowhere to be found.

Only two men were at the house, at 9:30 a.m. sitting in the living room drinking liquor. They said they didn’t know who or where his daughter was.

Absent was the man who told the mom the night before by phone that it was his house, he was the dad of their daughter’s friend, and he would be monitoring them and keeping them safe, according to a lawsuit.

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When the dad couldn’t find his 17-year-old daughter, he and his wife searched frantically and called 911. The mother said in court documents that she faced the horror her child was missing for at least an hour before she called them from home.

That shock and worry was the start of the effect the conduct of the man posing as homeowner and chaperone had on her, and is at the heart of the lawsuit filed in B.C. Supreme Court.

The lawsuit alleges the 31-year-old man lied to the 17-year-old girl and the mother about the party and instead got the girl drunk and sexually assaulted her.

The parties are named in the lawsuit, but Postmedia is not naming them because sex assault charges against the man have been dropped, and he has filed his own lawsuit alleging the mother has defamed him in social media posts by calling him a rapist and sexual predator.

The daughter has since died in a car accident.

The mother’s lawsuit was thrown out by the B.C. Supreme Court last year.

She was seeking damages for what she alleged was “fraudulent misrepresentation” — pretending he was her daughter’s friend’s dad — and “negligent infliction of mental distress.”

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Now an Appeal Court panel of three judges has overturned the lower court and ruled the lawsuit can go to trial. A trial date has not been set.

On the morning after the supposed sleepover, the parents returned home to find the daughter “intoxicated, disturbed and upset.”

Later, the daughter told her mom the man wasn’t her friend’s father, didn’t own the house and no friends were there. The man had contacted her repeatedly after they met at a restaurant a month earlier, wanting to meet again, despite her misgivings about their age difference, the lawsuit alleges.

It also alleges she told her mom that the man had encouraged her to drink to excess, refused to take her home, had “rough intercourse with her multiple times, leaving bruising,” took her to his home, took her phone and “recorded her dancing naked at his direction, which recording he shared with his friends,” according to the Appeal Court’s reasons for judgment.

She was assessed at hospital and found to have engaged in sexual activity and three days later, the man was arrested and charged with sexual assault and with distributing an intimate image, but prosecutors didn’t pursue the charges, it said.

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In her lawsuit, the mom said she suffered “significant losses,” including debilitating guilt over the inability to protect her child, which led to insomnia, depression and anxiety, as well as a worsening of her relationship with her daughter, loss of income because of efforts to help her daughter with mental health struggles and from her own inability to go to or focus on her work, it said.

The man argued in his response that the mother had failed to “plead sufficient facts” to prove she suffered monetary loss or to prove he had a “duty of care” and that he had breached it, the reasons said.

A Supreme Court justice agreed and tossed out the lawsuit.

Whether or not the mother has a claim for damages requires “an investigation of the full facts, followed by a thorough, nuanced and context-sensitive analysis of each essential element of the claim,” wrote Appeal Court Justice Gail Dickson in a judgment agreed to by Chief Justice Leonard Marchand and Justice Bruce Butler.

Dickson wrote that it could be argued that having left a child with a trusted adult, a parent “could foreseeably suffer mental injury” after she discovered they had “unwittingly facilitated the sexual abuse of their child.”

“While novel, given the evolving state of the law and widely known harm associated with sexual assault, in my view, it cannot be said that a claim of this sort has no prospect of success whatsoever,” she wrote.

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