K. v. Criminal Injuries Compensation Board, 2010 ONSC 5468

Introduction

1The appellant, F.K., appeals from a decision of the Criminal Injuries Compensation Board (the “Board”) dated April 13, 2010, which denies her claim for compensation as a victim of a violent crime under the Compensation for Victims of Crime Act, R.S.O. 1990, c.24 (the “Act”).

2The crime in question is a sexual assault of Ms. K.’s daughter at the hands of Ms. K.’s husband that Ms. K. was informed of some years after the incidents occurred.

3The Board found that Ms. K. had not demonstrated that she met the criteria for the legal injury known as nervous or mental shock and dismissed her claim on that basis.

4The appellant now submits that the Board erred in its treatment of her case by engaging in “fettering and gate-keeping”. She submits that her experience satisfies the legal criteria for nervous shock and that the Board erred in finding her medical condition was unrelated to the shock of learning about the past abuse of her daughter. As well, she submits that the Board failed to recognize that she lost income as a result of the crime. She had to stop working in order to care for her suicidal daughter and she received only partial disability benefits while also caring for a second child.

5Ms. K. seeks a reversal of the Board’s ruling and compensation for the financial loss suffered. The respondent Board submits that no legal error was made and that the appeal should be dismissed with costs.

Standard of Review

6The Divisional Court has jurisdiction to hear this matter pursuant to s.23 of the Compensation for Victims of Crime Act, which provides that:

Subject to s.25 a decision of the Board is final except that an appeal lies to the Divisional Court from any decision of the Board on any question of law.

7The standard of review applicable on this appeal is the standard of correctness. The correctness standard has been applied by this Court in recent decisions regarding the test for nervous shock (see Francis v. Ontario (Criminal Injuries Compensation Board) (2009) O.J. No. 187). Thus, the central question to be addressed by us on this appeal is, was the Board correct when they found that the appellant had not suffered the legal injury known as mental or nervous shock?

Analysis

8The common law test for the compensable legal injury of nervous shock is discussed extensively in the case of Dubé (Litigation Guardian of) v. Penlon Ltd.) (1994) 1993 17526 (ON SC), Carswell Ont. 931 (Gen. Div.). As set out at paragraphs 135 to 145 of that decision, in order to recover for nervous shock, four criteria must be satisfied. One of those criteria is the criteria known as “proximity”. In paragraph 144 of Dubé that criteria is described as follows:

“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 about or informed of the accident.”

9The Board applied the test set out in Dubé and while they accepted that the appellant suffered greatly, they correctly found that all of the criteria for nervous shock had not been met. Ms. K. did not see or hear the event or its immediate aftermath. She was simply told about it or informed about it.

10In agreeing with the Board, we do not mean to diminish in any way the great suffering that Ms. K. has experienced. We also acknowledge, that in circumstances like hers, it is often the case that the event is not witnessed or discovered until long after it has occurred. Unfortunately, we, like the Board, are circumscribed by the law as it has evolved relating to the injury of nervous shock.

Conclusion

11For these reasons, the appeal is dismissed.

COSTS

Costs

12I have endorsed the back of the Appeal Book, “For reasons delivered orally, this appeal is dismissed without costs.”