COURT FILE NO.: 230/08

DATE: 20090121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

JENNINGS, BELLAMY AND LITTLE JJ.

B E T W E E N:

JOICILDA SMITH

Appellant

• and -

CRIMINAL INJURIES COMPENSATION BOARD

Respondent

Elizabeth Stratton, for the Appellant

David E. Fine, for the Respondent

HEARD at Toronto: January 21, 2009

JENNINGS J.: (Orally)

1This is an appeal from a decision of the Criminal Injuries Compensation Board, dated April 2, 2008 denying the appellant’s applications for compensation on the ground that the appellant’s son directly contributed to his death pursuant to s.17(1) of the Compensation for Victims of Crime Act, R.S.O. 1990, c.C.24 (“the Act”).

2An appeal lies to this Court from a decision of the Board on a question of law, s.23 of the Act.

3The parties agree that the standard of review on this appeal is correctness.

4The appellant’s forty year old son was shot and killed on May 21, 2007 while he was sitting in his car. When the matter came before the Board, the crime remained unsolved. The appellant claimed under the Act for reimbursement of funeral expenses of $14,827.80 and $25,000 for pain and suffering due to nervous shock.

5The Board found the appellant’s murdered son to be a victim within the meaning of s.5(a) of the Act. The Board went on to find that the appellant was also a victim and had suffered mental or nervous shock.

6Having found as it did, the Board turned to a consideration of the provisions of s.17(1) of the Act to determine whether any behaviour of the victim (the son) directly or indirectly contributed to his death. The appellant concedes that this was a proper analysis in consideration of her claim for compensation.

7The Board accepted the oral evidence of Detective Browne (which contradicted his written report to the Board given months previously in the early stages of the investigation) that he now believed that the son was murdered as a direct result of his involvement in illegal drug transactions.

8Without further analysis, the Board denied the appellant’s claims.

9The appellant submits that the Board was required to undertake analysis as to the proportionality between the alleged conduct of the victim and the acknowledged criminal conduct of the offenders (see Dalton v. Ontario (Criminal Injuries Compensation Board), (1982), 1982 2075 (ON SC), 36 O.R. (2d) 394 (Ont. Div. Ct.); Ontario (Attorney General) v. Ontario (Criminal Injuries Compensation Board), 1995 10670 (ON SC), 22 O.R. (3d) 129 (Ont. Ct. (Gen. Div.)) and the unreported case of French v. Criminal Injuries Compensation Board, released on April 21, 2004 (Ont. Div. Ct.).

10The respondents submit that some activities are so fraught with danger that if involvement is found, no further analysis is warranted.

11We accept the submissions of the appellant. In this case, it is clear from the record that the Board denied the claim without any apparent consideration of the proportionality issue. In our opinion, in failing to do so, it erred in law and the appeal must be allowed.

12The appellant urges us to fix an award based on the record before us. In our opinion, the issue of proportionality falls squarely within the expertise of the Board and is an issue better determined by it. The matter is, accordingly, referred back to the Board (differently constituted) for rehearing.

COSTS

13No costs being demanded, none awarded.

JENNINGS J.

BELLAMY J.

LITTLE J.

Date of Reasons for Judgment: January 21, 2009

Date of Release: January 23, 2009

COURT FILE NO.: 230/08

DATE: 20090121

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT