Case updates
Oct 21, 2024
Taylor-Marie Young, with co-counsel Caitlin Ohama-Darcus (Lawson Lundell LLP), successfully appealed a chambers judge’s decision to strike a mother’s claims for fraudulent misrepresentation and negligent infliction of mental distress. In Bevan v. Husak, these claims arose out of the respondent’s alleged deceit to the mother that he would be the responsible adult for her daughter on a sleepover and subsequent sexual assault of the daughter.
The Court of Appeal delivered thorough and thoughtful reasons for judgment, reinstating the pleaded claims and allowing allow Carmen Bevan’s claim to move forward. As Dickson J.A. found, it was at least arguable that Carmen Bevan had a “claim for negligently caused mental injury grounded in her direct experience of Mr. Husak’s conduct and the harm it caused her when she discovered Katelin was missing”. The Court also held that the lack of a commercial element typically associated with fraudulent misrepresentation was no barrier to such a claim advancing to trial.
This outcome is significant not only for Carmen Bevan, her family, and especially the legacy of Carmen’s daughter, Katelin. The case also as important precedent for other parents with claims arising from their children’s victimization. Finally, this case also stands as an excellent example of how the judicial system—and tort law in particular—can accommodate allegations of dishonesty, predation and sexual violence against minors.
Two general principles to highlight from the Court of Appeal’s judgment: (1) the Court clarified that a “commercial component” is not an element of the tort of fraudulent misrepresentation, more aptly described as the tort of deceit. Rather, “deceit is a flexible tort that can apply in both commercial and non-commercial contexts”, and “can also cover both pecuniary and compensable non-pecuniary loss”; and (2) the Court held that it was “at least arguable that, having left a child with a trusted adult, a parent could foreseeably suffer mental injury upon discovering shortly thereafter that they had unwittingly facilitated the sexual abuse of their child and witnessing their child’s suffering as a result”.