Re 1708-02693, 2019 ONCICB 84

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicators: Guy Savoie James Graham

Date: May 8, 2019

Indexed as: (Re) 1708-02693

DECISION

Introduction

1The Applicant applied to the Criminal Injuries Compensation Board (CICB) seeking compensation for an injury resulting from a crime of violence. The Applicant is seeking the following forms of compensation: pain and suffering.

Decision

2In accordance with the Compensation for Victims of Crime Act, RSO 1990, c.C24, as amended (CVCA), the CICB denies the Application. The reasons for this Decision follow below.

Hearing

3The Applicant appeared in person and provided oral testimony and submissions.

Documentary Evidence

4The CICB received the following documents with respect to the claim: the Application, medical records and report from her family doctor dated October 20, 2018.

Oral Evidence

5The Applicant’s sons were both stabbed multiple times during a physical assault by the unknown Alleged Offenders. The Applicant did not witness the altercation. She was informed that one of her sons taken to a downtown trauma centre while her other son in critical condition was being treated at a local hospital.

6When she arrived at the hospital, her son was already out of surgery. The Applicant testified that it was distressing seeing her son lying in intensive care attached a number of machines. She was advised by the doctors the following day that her son’s condition was grave and they were unsure if he would survive due to the internal bleeding. The Applicant’s son remained in this state for seven days at which time she was advised that her son was out of danger.

7The Applicant testified that her other son also required surgical intervention at the trauma centre from a stab wound. Although the prognosis was not as grave as the other son, it was quite serious. She testified that she found it equally distressing seeing this son lying in the hospital attached a number of machines.

8The Applicant testified that entire episode was extremely traumatic for her.

9The Applicant explained that she could not sleep fully expecting to receive a call from the hospital or trauma centre with bad news. She also testified that during this time she experienced chest pains, headaches, shaking and nightmares involving images of her sons in hospital beds attached to machines.

10The Applicant testified she was prescribed medication by her family doctor to help her sleep and to relax her.

11The medical report from the family doctor advises that the Applicant was suffering from stress after the incident. The Applicant advised him that she was stressed, depressed, anxious, fearful and experiencing a loss of appetite. She also reported repeating nightmares, picturing what happened to her sons. The family doctor diagnosed her with reactive depression and anxiety and placed her on anti-depressants for a short period of time according to the report.

Analysis

Crime of Violence

12There was no conviction in respect of the incident.

13Section 16(1) of the CVCA provides that compensation may be awarded whether or not a person has been prosecuted or convicted of the offence giving rise to the injury.

14While the Applicant was not physically assaulted by the Alleged Offenders, her emotional injuries arise from observing her sons in the hospital after the event and receiving the prognosis that at least one of her sons may not survive. We must decide if the Applicant suffered from mental nervous shock (MNS) and whether there was a crime of violence committed against her sons.

15We find the Applicant’s sons are victims of a crime of violence given they were stabbed during a physical assault by the Alleged Offenders.

16The case law establishes the elements for MNS which must be considered in assessing this claim. Ulmer v. Weidmann, 2011 BCSC 130 considered the relevant case law including Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 and outlined the following test for MNS at para. 99:

From the reasoning in these cases and other cases cited therein the following elements of the cause of action for nervous shock 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 observing 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 for 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 not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable 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 states that fall short of a recognizable psychiatric illness.

17Next, the case of Wilson v. Criminal Injuries Compensation Board, (2015) ONSC 7876 at para. 28 cited with approval the summary of the law with respect to nervous shock in the Ulmer decision as an accurate one.

18Saadati v. Moorhead, 2017 SCC 28, [2017] 1 SCR 543 considered only the narrow issue of whether it was necessary for claimants to adduce expert evidence that their condition/emotional state meets the threshold of “recognizable psychiatric illness”. The Court ruled that to establish mental injury, claimants must show that the disturbance is serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society. While expert evidence or medical diagnosis can assist in determining whether or not a mental injury has been shown, it is not necessarily required.

19Based on the evidence, by time the Applicant arrived at the hospital and the trauma centre her sons had already undergone surgery to repair the damage inflicted by the Alleged Offenders. The condition of the son being cared for at the hospital was life threatening and the Applicant was told that he may not live unless the internal bleeding stopped. We accept the evidence of the Applicant that it was very distressing to see her sons lying in hospital beds and not knowing whether they would survive the ordeal.

20In the cases cited above, MNS within the legal context arises as a result of witnessing a single shocking or horrifying event or its immediate aftermath. “Shock” involves a “sudden or violent mental or emotional disturbance” (Merriam Webster Dictionary).

21In this case, the Applicant’s sons were stabbed repeatedly during a confrontation with the Alleged Offenders. The injuries they sustained required medical intervention. The Applicant obviously had a close relationship with the victims who were her sons. However she did not witness the event or come upon the immediate crime scene. By the time the Applicant arrived at the hospital and the trauma centre, her sons had already been treated and were in their hospital beds.

22We accept that the Applicant suffered emotional harm. However, on the evidence before us, we are not satisfied that the Applicant has established that the disturbance is serious and prolonged to the point where it is a recognized psychiatric illness. There is certainly no question that the Applicant experienced symptoms that would normally be expected of a parent whose child suffered a life threatening injury such as sleeplessness, worry, anxiety, loss of appetite, nightmares, stress and depression. It seems to us that the impact on the Applicant was not significantly different from what usually occurs when a loved one is in a grievous medical condition. We also note that the family doctor diagnosed the Applicant with reactive depression and anxiety and according to the report placed her on anti-depressants for a short period of time. This again is not significantly different from what one would normal expect given the circumstances.

23Accordingly, on the evidence before us, we find on the balance of probabilities that the Applicant has not made out a claim for mental nervous shock. The Application is dismissed.