L.S.A. v. J.I.A. Estate et al., 2015 BCCA 288

• Judge: Groberman, Goepel and Savage, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: May 06, 2015
• Jurisdiction: British Columbia
• Citations: 2015 BCCA 288;(2015), 374 B.C.A.C. 189 (CA)

L.S.A. v. J.I.A. Estate (2015), 374 B.C.A.C. 189 (CA);

    642 W.A.C. 189

MLB headnote and full text

Temp. Cite: [2015] B.C.A.C. TBEd. JL.005

L.S.A. (respondent/plaintiff) v. M.E.A., representative ad litem of the Estate of J.I.A. and M.E.A. also known as M.E.C., Committee of the Estate of W.H.A. (appellants/defendants)

(CA42330; 2015 BCCA 288)

Indexed As: L.S.A. v. J.I.A. Estate et al.

British Columbia Court of Appeal

Groberman, Goepel and Savage, JJ.A.

June 26, 2015.

Summary:

A daughter sued her parents and her uncle and his wife, alleging negligence and breach of fiduciary duty on the basis that they permitted the grandfather the opportunity to sexually assault and sexually abuse her even though they knew that he was a "child molester and/or paedophile".

The British Columbia Supreme Court, in a decision reported at [2014] B.C.T.C. Uned. 1910, allowed the action against the parents, holding that they had failed to take reasonable care to protect the daughter from danger and failed to meet the fiduciary duty that they owed to the daughter. The parents appealed.

The British Columbia Court of Appeal allowed the appeal. Given the parents' state of knowledge, it could not be said that they were negligent in allowing the daughter to visit with the grandfather. The trial judge's credibility findings were based on palpable and overriding errors. His finding that the parents knew that the grandfather was a paedophile, in the sense that he had a propensity to re-offend, was not supported by the evidence. There was no basis upon which the breach of fiduciary duty claim could succeed. This was not a case where the parents put their own interests in advance of the daughter's interest.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Equity - Topic 3645

Fiduciary or confidential relationships - Breach of fiduciary relationship - By custodial parent - See paragraphs 46 to 82.

Torts - Topic 89

Negligence - Duty of care - To children - See paragraphs 46 to 82.

Torts - Topic 8906

Duty of care - Particular relationships - Control of conduct of others - Care of children - See paragraphs 46 to 82.

Cases Noticed:

M.M. v. R.F. et al. (1997), 101 B.C.A.C. 97; 164 W.A.C. 97 (C.A.), refd to. [para. 48].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 513; 2003 SCC 51, refd to. [para. 51].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 53].

Counsel:

A.J. Winstanley, for the appellants;

K.M. Wellburn, for the respondent.

This appeal was heard at Vancouver, British Columbia, on May 6, 2015, by Groberman, Goepel and Savage, JJ.A., of the British Columbia Court of Appeal. Goepel, J.A., delivered the following reasons for judgment for the court on June 26, 2015.