(Re) 1801-00232, 2018 ONCICB 85

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: David Fine Date: October 22, 2018 Indexed as: (Re) 1801-00232

ORDER

1An oral hearing was conducted on September 17, 2018. The Decision was reserved.

Introduction

2The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (CVCA). The Applicant is seeking an award for pain and suffering for mental and nervous shock as result of the death of her son by a shooting on [date], 2012. The incident was reported to the police which resulted in a conviction for manslaughter.

Decision

3The CICB denies the claim for the reasons set out below.

Issues

4A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the CVCA. Given that there was a death and a conviction in this case, the Applicant is required to prove, on a balance of probabilities, that her injuries are the result of the crime pursuant to subsection 5(a) of the CVCA. In this case that means she needs to demonstrate that she meets the criteria required for a nervous shock claim.

5If the Applicant meets the above threshold, in deciding whether or not to exercise discretion to award compensation and the amount thereof, the CICB must consider:

a. all the relevant circumstances, including whether the Applicant’s behaviour may have directly or indirectly contributed to the injuries pursuant to subsection 17(1) of the CVCA

b. whether the Applicant has refused reasonable cooperation with, or failed to report promptly the offence to, a law enforcement agency pursuant to subsection 17(2) of the CVCA; and,

c. Any benefit, compensation or indemnity paid or payable to the Applicant from any source other than social assistance pursuant to subsection 17(3) of the CVCA.

Hearing

6The Applicant appeared and provided oral testimony. The Applicant’s niece [name] also attended the hearing to provide support. She did not give any evidence.

7At the beginning of the hearing, the Applicant confirmed she was aware of subsections 17(1), 17(2) and 17(3) of the CVCA and that those parts of the CVCA would be considered in connection with the Decision. Those subsections were read to her.

Documentary Evidence

8The CICB received the following documents with respect to the claim: the application dated [date], 2017, police questionnaire dated [date], 2018, the judgment of dated [date], 2016 and medical reports from a psychiatrist Dr. [name] dated [date] and [date], 2018.

9According to the police questionnaire the Applicant’s son was shot in the chest on [date], 2012. He had a single puncture wound in the front chest area. He died at 7:15 pm EDT. The Offender was charged with second degree murder but was convicted of manslaughter by a jury. The police questionnaire indicates that Mr. [name] family did not co-operate with the police.

10In his written judgment with respect to sentence [the judge] stated that in his view the discharge of the firearm was discharged for the purpose of intimidation in the course of a dispute about illicit activity. The judge inferred that the altercation had something to do with an outstanding drug debt.

11In her Applicantion the Applicant says she saw her son’s body at the hospital and mosque and it was extremely traumatic for her.

12Dr. [name] in his reports says because of the sudden loss of her son the Applicant is suffering from a Chronic Major Depressive Disorder with anxiety and atypical traits and a Chronic Pain Disorder. In addition to chronic pain and anxiety, she also suffers from headaches, insomnia and depression.

Oral Evidence

13The Applicant testified that at the time of the shooting she was living in Alberta. She is currently [age] years old and has three other children apart from the deceased. She is separated from her husband.

14The night before the shooting she had gone to a hospital because she did not feel well. She returned home the same night but did not sleep well.

15At about 4 pm MDT on [date], 2012 she received a telephone call from one of her other sons and her sister advising her son had been shot. She said she fainted. She was revived with water on her face. At about 6 pm MDT she received a second call indicated that [name] had died.

16The Applicant immediately tried to get a flight to [city] but was unable to do so until [date], 2018. And she arrived in [city] that evening. The next morning [date], 2018 she went to Victims Services and was told that an autopsy was being performed and that her son’s body would be delivered to a mosque on Tuesday evening. She never went to the hospital. She went to the mosque and waited there for the delivery of her son’s body. She wanted to make sure it was her son who was shot. She first saw her son’s body in the evening on [date], 2018 when his body was delivered to the mosque.

17When the Applicant saw her son his body was covered with a sheet up to his neck. There were no wounds or disfiguring marks on his face but his eyes were closed. She never looked under the sheet which covered her son’s body and she never saw the wound to his chest. When she saw him she said she was shocked, shaking and crying. She did not stay at the mosque for very long. The funeral was the next day.

18The Applicant does not believe her son was involved with illegal drugs. She says he had a regular job in a factory. He had two convictions for minor offences.

19The Applicant said the police never contacted her. She said her daughter dealt with the police and was very co-operative.

20The Applicant testified that, at present, she is depressed and sad. She has pain all over her body and a burning feeling in her stomach. She suffers from headaches and insomnia. She is tired all the time and has low energy. She says she has developed arthritis. She tried to work in 2015 driving a school bus but could not do it for very long. She has not improved since her son passed away.

21The Applicant is not making any expense claim and did not produce any documentation in that regard.

22The Applicant received $10,000 from the Financial Assistance For Families of Homicide Victims Program.

Analysis and Decision

23For the following reasons the CICB dismisses the Applicant.

24It is clear that there was a crime of violence in this case as the Offender was convicted of manslaughter in connection with the shooting. However, the main issue in this case is whether the Applicant meets the legal test for a mental or nervous shock claim. There is no need to consider s. 17 of the CVCA until that is determined.

25In the case of Dube v Penlon [1994] O.J.No.1720 involving a tort claim Zuber J. stated at para. 142:

It is necessary that the claimant see or hear the accident or event or its immediate aftermath and suffer nervous shock as a result. No liability is imposed for nervous shock suffered by someone who is simply told or informed of the accident.

26Zuber J. went on to say at para.143 that: “shock in the context of this cause of action involves the sudden appreciation by sight or sound of a horrifying event which violently agitates the mind.”

27The law relating to nervous shock since the Dube case has evolved. In the case of Ulmer v Weidmann [2011] B.C.J. No. 15, Truscott J. after considering recent cases on nervous shock claims and the Supreme Court of Canada case of Mustapha v Culligan of Canada [2008] S.C.R. 114 stated at para. 99 that the following elements for a cause of action for a nervous shock claim in a tort action have been established:

a. the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his\her actions that he\she ought reasonably to have them in contemplation as being so affected

b. proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury

c. the relevant proximity factors are the relational proximity(the closeness of the relationship between the claimant and the victim of the defendant’s conduct),locational proximity(being at the scene of a shocking event and observing it or its immediate aftermath, and temporal proximity(the relation between the time of the event and the onset of the psychiatric illness)

d. the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant

e. it must be concluded as a matter of law that a reasonable person should foresee that his\her conduct is such that it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result

f. a claimant must prove must prove not just psychological upset as a result of the defendants negligence but also that his\her psychological disturbance rises to a level of a recognized psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation.. The law does not recognize upset, discord, anxiety, agitation or other mental illness that falls short of a recognizable psychiatric illness.

28In the case of Wilson v Criminal Injuries Compensation Board (2015) ONSC 7876 (Div. Ct) the CICB had dismissed a nervous shock claim on the basis that all of the proximity factors set out in the Ulmer case were absent. In an appeal to the Ontario Divisional Court Henderson J. stated at para. 28 that the summary of the law with respect to nervous shock set out in the Ulmer case is an accurate one. He found that the CICB properly applied the proximity factors and was correct in dismissing the applicant’s application for compensation.

29In the Supreme Court of Canada case of Saadati v Morehead, 2017 SCC 28, the court considered the narrow issue of whether it is strictly necessary for a claimant to adduce expert evidence or other proof of a recognized psychiatric illness.

30The case arose from a claim in negligence as a result of a motor vehicle accident in which the plaintiff was involved. The plaintiff did not suffer a physical injury at the scene of the accident. However, subsequently he made a claim for a mental injury.

31The Court held that a finding of a legally compensable mental injury need not be supported by expert evidence demonstrating a medically recognized psychiatric injury. Further the Court stated that the claimant’s disturbance must be serious and prolonged and rise above the annoyances, anxieties and fears that come with living in a civil society.

32The Saadati case did not deal with a situation such as this matter in which the Applicant alleges a mental injury although she did not did not see or hear the shocking event or its immediate aftermath which resulted in an injury or the death of another person. The Saadati case does not stand for any other proposition other than the ones set out in para. 31. As a result, the analysis for nervous shock cases in Ulmer is only modified by those principles cited in that paragraph.

33In this case the Applicant obviously had a close relationship with the victim. However, she did not see or hear the shocking event (the shooting) or its immediate aftermath. She was in Alberta at the time of the shooting on [date] 2018 and did not come to [city] until two days later. She fainted when she was told by telephone that her son had been shot. No doubt her feelings were exacerbated when she was told a few hours later that her son had died.

34She did not see her son until the evening of [date], 2018 three days after the shooting. She wanted to make sure it was her son who had been shot and who had passed away. When she saw her son his body was covered with a sheet up to his neck. The Applicant did not see any wounds or disfigurement. Notwithstanding her comment in her Application that she went to the hospital and saw her son there, she was quite adamant in her oral testimony that she never went to the hospital

35Accordingly, the Applicant does not have the locational proximity factor required and does not meet the foreseeability test for mental or nervous shock claims set out in para 99(b) and (c) out in the Ulmer case which would entitle her to compensation. The Applicant did not see or hear the shooting or its immediate aftermath. Compensation is not awarded to someone who is told or informed about the event.

36Because of the decision regarding the nervous shock issue, it is unnecessary to decide the appropriateness of applying s 17(1), (2) or (3) or what an award would be if the Applicant was entitled to compensation.

37This Application is hereby dismissed.