Sexual Assault and Surreptitious Videotaping Lawsuit Survives Defendant's Bankruptcy Protection

Brief reasons for judgment were released recently by the BC Supreme Court, Duncan Registry, addressing whether a Plaintiff can continue with a lawsuit for damages for alleged historic sexual assault in the face of a Defendant filing for bankruptcy protection. In short the Court held this was possible.
In the recent case (Lundahl v. Poilievre) the Plaintiff was suing for damages alleging historic sexual assault and surreptitious recording.  The Court provided the following reasons confirming both causes of action can survive bankruptcy protection:
[4]             It is clear that the claim for sexual assault would, under s. 178(1), survive a discharge of bankruptcy.  What may be more debatable are the components of the action dealing with the surreptitious videotaping.  It was that latter part of the claim that the defendant focused on in opposing the stay.
[5]             In my view, the main part of the action is the sexual assault.  In spite of the defendant having pled guilty in a criminal trial, the videotaping may still be part of the evidence in the sexual assault trial as part of the background.  So irrespective of whether the claim for the surreptitious videotaping alone would survive the bankruptcy, it is nevertheless intimately wrapped up with the other part of the action.
[6]             The material prejudice to the plaintiff of the stay with respect to the sexual assault claim is that the action will be materially delayed, and in the interim she is suffering psychological harm.  I think I can take judicial notice of the fact that once an action is commenced, victims prefer to have their trials sooner rather than later. In my view, s. 69.4 should be applied here to lift the stay.
[7]             In addition, it appears to me the claim falls within a category of claims that the courts have not been willing to stay.  It would be equitable, as well, under s. 69.4, to lift the stay.
[8]             The stay will therefore be lifted with costs to the plaintiff.

bc injury law, Lundahl v. Poilievre, Mr. Justice Myers

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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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