DIVISIONAL COURT FILE NO.: 49/10
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND WILTON-SIEGEL JJ.
BETWEEN:
MARLIN HARRIET ARCHIBALD
Appellant
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Respondent
Osborne G. Barnwell, for the Appellant
David E. Fine, for the Respondent
HEARD at Toronto: March 7, 2011
SWINTON J. (orally)
[1]
Background
The appellant, Ms. Archibald, appeals from a decision of the Criminal Injuries Compensation Board (the “Board”) dated December 14, 2009 which partially denied her claim for compensation as a victim of a violent crime under the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 (the “Act”).
2The violent crime at issue was the shooting death of her son in October 2005. As the appellant was not present when the shooting occurred, the only claims she could bring were for the injury known as mental or nervous shock and for expenses incurred as a result of the crime.
3The Board found that the legal criteria for mental or nervous shock had not been made out and, as she had failed to prove injury, she was not a victim within the meaning of the Act. Applying s.17(1) of the Act, the Board awarded compensation for funeral expenses of $6,000.00. It reduced the amount claimed because it found the victim’s activity and behaviour directly contributed to his own victimization.
[4]
Standard of Review
An appeal lies to this Court only on a question of law (see s.23), and the standard of review is correctness.
[5]
Analysis
The Board did not apply a standard of proof other than a balance of probabilities respecting the claim for mental or nervous shock. When it referred to the “high threshold” for proving mental or nervous shock, it was referring to the elements of the test to be applied.
6The appellant has not shown any error of law by the Board in the refusal to award damages for mental or nervous shock. Given the evidence that the appellant did not witness the shooting and that she did not seek psychiatric treatment for some three years, the Board could reasonably conclude that she did not prove she had suffered the injury known as mental or nervous shock.
7With regard to the award of funeral expenses, the appellant has not proved the Board erred in law in applying s.17(1) of the Act. It preferred the evidence of the police witness about the victim and his associations, as it was entitled to do, and concluded the victim had engaged in activity that directly contributed to his death.
8We do not think that the new affidavit satisfies the test for fresh evidence. However, even were we to consider the appellant’s very limited evidence regarding her son’s diagnosis of schizophrenia, that evidence would not change the result in this case, as there was no medical evidence from the victim’s treating physicians about his condition, his medications and the impact of his condition on his behaviour.
[9]
Disposition
There being no error of law on the part of the Board, the appeal is dismissed, as is the motion to admit the affidavit.
FERRIER J.
10I have endorsed the Appeal Book and Compendium as follows: “The appeal is dismissed for oral reasons delivered this day. Motion to admit fresh evidence dismissed. No order as to costs.”
FERRIER J.
SWINTON J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: March 7, 2011
Date of Release: March 15, 2011
CITATION: Archibald v. Criminal Injuries Compensation Board, 2011 ONSC 1472
DIVISIONAL COURT FILE NO.: 49/10
DATE: 20110307
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
FERRIER, SWINTON AND WILTON-SIEGEL JJ.
BETWEEN:
MARLIN HARRIET ARCHIBALD
Appellant
(Applicant)
– and –
CRIMINAL INJURIES COMPENSATION BOARD
Respondents
(Defendants)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: March 7, 2011
Date of Release: March 15, 2011