Saez-Larrazabal v. Criminal Injuries Compensation Board Gonzales-Delacaridad v. Criminal Injuries Compensation Board Saez v. Criminal Injuries Compensation Board Ramos v. Criminal Injuries Compensation Board [Indexed as: Saez-Larrazabal v. Criminal Injuries Compensation Board]
111 O.R. (3d) 205
2012 ONSC 3500
Ontario Superior Court of Justice,
Divisional Court,
Sachs, Whalen and Herman JJ.
June 21, 2012
Criminal law -- Compensation for victims of crime -- Murder victim's family members applying for compensation for nervous shock -- Board denying compensation on basis of deceased's contributory conduct and because applicants not present when murder occurring -- Board erring in law in failing to conduct analysis of proportionality between deceased's conduct and offenders who were convicted of first degree murder -- All four claimants seeing deceased's body at scene of crime and claimant need not witness crime to be eligible for compensation -- [page206] Psychologist's report indicating that mother, sister and one brother suffered from major depression and post- traumatic stress syndrome -- Appeal of those three claimants allowed -- Board not erring in finding that there was insufficient evidence that fourth claimant had experienced nervous shock.
The mother, sister and two brothers of a murder victim applied to the Criminal Injuries Compensation Board for compensation for nervous shock arising from his death. The Board denied them compensation on the basis of the deceased's conduct contributed to his death in a way that was not minor. The deceased had initiated a brief fight with his assailants and displayed a firearm earlier on the day of his murder. The Board also found that there was insufficient evidence to establish the claimants' claim for nervous shock as they had not witnessed the murder and had heard about it from a third party. The claimants appealed.
Held, the appeal should be allowed in respect of three claimants and dismissed in respect of the fourth.
The Board erred by failing to conduct a proportionality analysis between the alleged illicit behaviour of the victim and the conduct of the offenders when considering whether the victim's contributory conduct precluded any compensation. In particular, it did not consider the contribution of the two offenders, who fired 13 shots at a car that was leaving the scene of the confrontation and who were convicted of first degree murder, and it did not consider the proportionality between the deceased's conduct and the fatal injuries he sustained. The failure to apply the required proportionality error amounted to an error of law.
The Board also erred in law in its application of the criteria for compensation for nervous shock. In particular, it erred when it concluded that the deceased's mother and sister were disentitled to compensation for nervous shock because they had not witnessed the event and had learned about it from a third party. All of the complainants saw the deceased's body at the scene of the crime, although his mother was unaware that it was her son until later, when she went to the hospital, hoping that her son had been injured, not killed. The common law of nervous shock does not limit compensation to individuals who were direct witnesses of the event, nor does it automatically exclude individuals who first learned of the event from a third party. The Board also erred in concluding that there was insufficient evidence that the injuries of the deceased's mother, sister and one of his brothers satisfied the legal definition of nervous shock. According to a psychologist's report, those three claimants were suffering from major depression and had symptoms of post-traumatic stress disorder. The psychologist said that their prognosis was guarded given the serious psychological trauma they had experienced. The Board did not err in concluding that the deceased's other brother, who was not assessed by the psychologist or any other mental health professional, did not prove that he had suffered nervous shock. The claimants asked for an order that their applications for compensation be allowed without remanding the matter back to the Board. The Board is in a better position to undertake the required proportionality analysis and to determine the amount of compensation. The application by the three family members who presented psychological evidence is remitted to a differently constituted panel of the Board.
APPEAL from a decision of the Criminal Injuries Compensation Board denying claims for compensation.
Cases referred to Dalton v. Criminal Injuries Compensation Board (1982), 1982 2075 (ON SC), 36 O.R. (2d) 394, [1982] O.J. No. 3230 (Div. Ct.); French v. Criminal Injuries Compensation Board, April 21, 2004, Court File No. 1418 (Ont. Div. Ct.) [Leave to appeal refused [2004] O.J. No. 3875 (C.A.)]; Mark v. Criminal Injuries Compensation Board, [2010] O.J. No. 5518, 2010 ONSC 6540, 273 O.A.C. 152 (Div. Ct.); Smith v. Ontario (Criminal Injuries Compensation Board), 2009 2492 (ON SCDC), [2009] O.J. No. 348, 246 O.A.C. 309 (Div. Ct.), apld [page207]
Other cases referred to Alcock v. Chief Constable of the South Yorkshire Police, [1992] 1 A.C. 310, [1991] 4 All E.R. 907, [1991] 3 W.L.R. 1057, 8 B.M.L.R. 37 (H.L.); Archibald v. Ontario (Criminal Injuries Compensation Board), [2011] O.J. No. 1158, 2011 ONSC 1472 (Div. Ct.); Dixon v. Nova Scotia (Criminal Injuries Compensation Board), 1988 5653 (NS CA), [1988] N.S.J. No. 263, 52 D.L.R. (4th) 335, 85 N.S.R. (2d) 271, 10 A.C.W.S. (3d) 421, 216 A.P.R. 271 (S.C. (A.D.)); Dubé (Litigation Guardian of) v. Penlon Ltd., [1994] O.J. No. 1720, 21 C.C.L.T. (2d) 268, 49 A.C.W.S. (3d) 714 (Gen. Div.); Masakeyash v. Criminal Injuries Compensation Board (2006), 2006 11440 (ON SCDC), 80 O.R. (3d) 467, [2006] O.J. No. 1429, 267 D.L.R. (4th) 258, 208 O.A.C. 364, 147 A.C.W.S. (3d) 213, 69 W.C.B. (2d) 112 (Div. Ct.); McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.)
Statutes referred to Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, ss. 1, 5(a), 17(1), 23 Compensation for Victims of Crime Act, S.N.S. 1975, c. 8
Mary Ellen McIntyre, for appellants. David Fine, for respondent.
The judgment of the court was delivered by
1HERMAN J.: -- The four appellants appeal from the decision of a panel of the Criminal Injuries Compensation Board (the "Board") denying them compensation.
2Ms. Saez-Larrazabal is the mother of Mr. Jose Hierro-Saez ("Jose"), who was shot and killed on June 9, 2007. Ms. Gonzales-Delacaridad is Jose's sister and Mr. Saez and Mr. Ramos are his brothers. Mr. Anthony Grant and Devon Vivian (the "offenders") were found guilty of the first degree murder of Jose.
3All four appellants applied to the Board for compensation for nervous shock arising from Jose's death. Ms. Saez- Larrazabal also sought compensation for funeral expenses.
4The Board found the four appellants to be victims within the meaning of s. 5(a) of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 (the "Act"). However, the Board denied them compensation on the basis of Jose's contributory conduct.
5The Board also concluded that there was insufficient evidence to establish the appellants' claim for nervous shock.
6The appellants submit that the Board made two errors of law: (i) the Board failed to apply a proportionality analysis when it disallowed compensation on the basis of the victim's contributory conduct; and [page208] (ii) the Board used the wrong assessment standard when it determined that the appellants did not satisfy the criteria for nervous shock.
Standard of Review
7Section 23 of the Act provides for an appeal to the Divisional Court from a decision of the Board on any question of law.
8The parties agree that the appropriate standard of review is correctness (see Masakeyash v. Criminal Injuries Compensation Board (2006), 2006 11440 (ON SCDC), 80 O.R. (3d) 467, [2006] O.J. No. 1429 (Div. Ct.), at para. 7).
Did the Board Err in Failing to Apply a Proportionality Analysis?
9In denying compensation to the appellants, the Board relied on s. 17(1) of the Act:
17(1) In determining whether to make an order for compensation and the amount thereof, the Board shall have regard to all relevant circumstances, including any behaviour of the victim that may have directly or indirectly contributed to his or her injury or death.
10The Board reviewed the evidence and found that Jose's death was a foreseeable consequence of his actions on the day of the shooting. It reached the same conclusion in dealing with all four applications:
In this case, the Panel does find that the tragic death of the Victim was a foreseeable consequence of his actions that day. This is not a case where the Victim's contributory behaviour was so minor that compensation should still be awarded in any amount. After considering all of the relevant circumstances, the Panel hereby denies this claim for compensation.
The events of June 9, 2007
11The Board relied on the results of the police investigation as related by Detective Sergeant Sheppard. Detective Sheppard was the officer in charge of the investigation of Jose's murder.
12On Saturday, June 9, 2007, Jose and three friends went to a flea market called Dr. Flea's. A number of security cameras both inside and outside the flea market recorded what occurred.
13The two offenders arrived at the flea market at about 1:55 p.m.
14At about 2:52 p.m., Jose grabbed one of the offenders. A brief fight ensued. Jose and one of his friends, Omar, left the building. The two offenders followed them. When Jose and Omar saw the offenders, they pulled out their firearms and brandished them at the offenders. [page209]
15The two offenders went back into the flea market building. Jose and Omar left and went to a townhouse where another friend lived.
16When the offenders re-entered the building, they engaged in a fight with Jose's two other friends. All four men were thrown out of the building.
17Jose's two friends called another friend, Paddy, to pick them up. Paddy arrived in his Honda, picked up the two friends and then drove to the townhouse and picked up Jose and Omar.
18The offenders followed Paddy's Honda in their SUV. At about 3:14 p.m., the offenders' SUV pulled up beside the Honda and fired 13 shots into the car. The SUV then sped away.
19Jose had been shot. Paddy drove to a parking lot near Jose's housing complex. Paddy and the other friends left Jose in the back seat of the Honda. Police and emergency services were called. Jose was pronounced dead at the scene. The paramedic who attended to him found a loaded gun tucked into his pocket.
20The two offenders were subsequently apprehended. They were convicted of first degree murder at trial.
21According to Detective Sheppard, a motive was never established. He said that it was clear from the security cameras that the men were not at the market to shop. They appeared to be looking around for someone, probably for each other. Detective Sheppard said that all six men were known to the police but he was not aware if they were involved in gang activities.
22Detective Sheppard testified that Jose had a record, which he believed to be minor. His recollection was that it involved assaults.
23The appellants question the Board's reliance on Detective Sheppard's testimony. They submit that it was, to a large extent, based on assumptions. They note that the evidence did not include information provided by anyone involved in the incident. There was no evidence from the offenders as to why they killed Jose and no evidence from Jose's friends or anyone else who witnessed the event. They point out that the offenders were convicted of first degree murder, which means the court did not find any justification, such as provocation, for the murder.
Analysis
24The appellants submit that the Board failed to properly apply the required proportionality analysis when it decided to deny them any compensation.
25They point out that in the criminal proceedings none of them was found to have made any contribution to the event. They [page210] maintain that the Board should be cautious in making assumptions that cannot be tested and should only make a finding of contributory negligence on the basis of clear, cogent evidence. Furthermore, even if the Board had properly found contributory negligence, the Board erred in concluding that the appellants were thereby disentitled from receiving any compensation.
26The court in Dalton v. Criminal Injuries Compensation Board (1982), 1982 2075 (ON SC), 36 O.R. (2d) 394, [1982] O.J. No. 3230 (Div. Ct.) articulated the principle of proportionality. In that case, the appellant had gone into a van with two men after an evening of drinking and socializing. When she repelled the sexual advances of one of the men, she was pushed out of the moving van. The appellant suffered extensive and lasting injuries. The Board denied the appellant compensation on the basis that she was the author of her own misfortune, having gone into a van with two unknown inebriated men.
27The Divisional Court allowed the appeal. Linden J. pointed to the reference to "all relevant circumstances" in s. 17(1) of the Act. In his opinion, the Board had failed to consider one of those relevant circumstances, that is, the severity of the appellant's injuries, when it denied compensation.
28Linden J. noted that certain contributing behaviour of a claimant might be sufficient to deny an award if the injuries were slight. However, the behaviour would not be enough to bar recovery if the claimant had been severely injured or killed.
29The Board in Dalton also erred in failing to consider that although the appellant's conduct may have been a cause of her injury, the two unknown men had also contributed to her injury. In fact, they were the major authors of her misfortune. While the appellant incurred a risk by going with the men, she could not have expected that, as a result, she would have been pushed out of a moving van.
30In French v. Criminal Injuries Compensation Board, unreported, Ontario Divisional Court File No. 1418, April 21, 2004, leave to appeal refused [2004] O.J. No. 3875 (C.A.), Cunningham A.C.J. stated that
there must be some proportionality between the alleged illicit behaviour of the victim and the conduct of the offenders.
31The court in Mark v. Criminal Injuries Compensation Board, [2010] O.J. No. 5518, 2010 ONSC 6540 (Div. Ct.) also dealt with the requirement for proportionality. Mr. Mark had sustained serious injuries in an assault. Some of those injuries were permanent. The Board dismissed his application for compensation on the basis that the inherent risk of violence [page211] associated with his behaviour, as a drug dealer, significantly contributed to the assault.
32The Divisional Court concluded that the Board had erred in law and upheld Mr. Mark's appeal. Molloy J. stated, at para. 25, that the Board must "follow two steps in applying s. 17(1): (1) it must consider whether there was any conduct by the applicant that contributed to his injury; and (2) it must decide whether to grant compensation, deny compensation or allow a reduced award" (emphasis omitted). Furthermore, as indicated by the court in Dalton, the Board must also consider the severity of the injuries.
33Molloy J. concluded that the Board's failure to properly consider proportionality as between the applicant's contributory conduct and the injuries sustained, and the failure of the Board to consider a reduced award as opposed to a complete denial of recovery were legal errors.
34The facts in Smith v. Ontario (Criminal Injuries Compensation Board), 2009 2492 (ON SCDC), [2009] O.J. No. 348, 246 O.A.C. 309 (Div. Ct.) bear some similarity to the facts here. In that case, the appellant's son was shot and killed while he was sitting in his car. The Board denied any compensation on the basis of the son's contributory conduct. It accepted the oral evidence of the police detective who believed that the son had been murdered as a direct result of his involvement in illegal drug transactions.
35The Divisional Court concluded that the Board had committed an error in law by failing to undertake an analysis as to the proportionality between the alleged conduct of the victim and the acknowledged criminal conduct of the offenders.
36In the case at hand, the Board found that Jose's death was a foreseeable consequence of his actions and that his contributory behaviour was not so minor that compensation should be awarded in any event.
37However, as noted by Molloy J. in Mark, at para. 40, while the foreseeability of the injury may be a relevant factor, it is not a substitute for the proportionality analysis.
38The Board did not conduct the required proportionality analysis when it decided not to award any compensation. In particular, the Board did not consider the contribution of the two offenders, who fired 13 shots at a car that was leaving the scene of the confrontation and who were convicted of first degree murder, and it did not consider the proportionality between Jose's conduct and the very severe injuries he sustained, which resulted in his death.
39In failing to apply the required proportionality analysis, the Board committed an error of law. [page212]
Did the Board Use the Wrong Assessment Standard When it Determined that the Appellants did not Satisfy the Criteria for Nervous Shock?
40All four appellants claimed compensation for nervous shock arising from Jose's violent death.
41In its decision, the Board indicated that, in view of its denial of the appellants' claim, it did not need to address the issue of nervous shock. However, it went on to state that it was not persuaded that the appellants had satisfied the necessary criteria for nervous shock.
42The appellants submit that the Board used the wrong assessment standard when it determined they did not satisfy the criteria for nervous shock.
43The Board indicated that it was required to consider four criteria in determining whether a case had been made out for nervous shock: (i) The degree of violence involved in the occurrence. (ii) How close was the relationship between the applicant and the victim? (iii) Was the applicant at the scene of the occurrence? (iv) How the applicant learned of the occurrence.
44Furthermore, in order to be compensable, the Board required evidence that established that the appellants had suffered psychiatric/psychological injury induced by the shock resulting from the violent occurrence. Problems dealing with the aftermath of the occurrence, such as difficulty in adjusting to a new lifestyle, stress, financial problems or having to attend court are not compensable.
45The Board was satisfied that the appellants met the first two criteria: Jose's death was violent; and the appellants were all close relatives. However, it concluded that Ms. Saez-Larrazabal and Ms. Gonzales-Delacaridad did not meet the third criterion and that, in the case of all four appellants, there was insufficient evidence of an injury falling within the legal definition of nervous shock.
(i) The third criterion: proximity to the scene
46The Board determined that Ms. Saez-Larrazabal and Ms. Gonzales-Delacaridad did not satisfy the third criterion. [page213] They did not witness the shooting and they learned about it from a third party.
47The appellants submit that the Board applied the wrong standard and erred when it determined that Ms. Saez-Larrazabal and Ms. Gonzales-Delacaridad were precluded from recovery for nervous shock.
48In concluding that Ms. Saez-Larrazabal did not satisfy the third criterion, the Board noted that she did not witness the event. When she came upon the scene in the back of her house, she was unaware her son was there. She learned of the death from a phone call indicating that her son was injured and then a visit from the police confirming he had died.
49In the Board's opinion, Ms. Gonzales-Delacaridad also did not satisfy the requirement for proximity. She did not witness the event. She learned of the death from a phone call indicating her brother was injured and then confirmation from the police that he had died.
50The Board accepted that it was arguable that Mr. Ramos satisfied this criterion.
51The Board made no mention of this criterion in its decision regarding Mr. Saez.
Requirement for proximity
52Section 1 of the Act defines "injury" as including "mental or nervous shock". The common law on recovery for nervous shock has been applied to compensation for mental or nervous shock under the Act.
53In the case of Dubé (Litigation Guardian of v. Penlon Ltd., [1994] O.J. No. 1720, 21 C.C.L.T. (2d) 268 (Gen. Div.), at para. 142, Zuber J. outlined some of the limits placed on recovery for nervous shock, including the requirement for proximity:
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.
54In the case of Alcock v. Chief Constable of the South Yorkshire Police, [1992] 1 A.C. 310, [1991] 4 All E.R. 907 (H.L.), at p. 388 S.A.C., the proximity requirement was referred to as "the relationship in time and space between the plaintiff and the scene of the original negligence".
The evidence
55What was the relationship in time and space between the appellants and the scene? [page214]
56Ms. Saez-Larrazabal testified at the Board hearing. She had been at Dr. Flea's the day of the shooting and saw her son leaving. While she was still at the market, she received a call from Jose's girlfriend, who was looking for him. Shortly after that, her youngest son called her and told her she should come home as something had happened to his brother. She returned home and saw the scene behind the house, surrounded by yellow tape. She saw a covered body, but did not know who it was. The police told her that three men had been injured and one had died, but they did not identify the individuals. She went to the hospital where two of the men had been taken, and was told it was her son who had died. Later that night, the police confirmed that her son had died.
57Ms. Gonzales-Delacaridad testified that she learned of the tragedy through a phone call from her mother at around 4:00 p.m. Her mother told her that her brother had been shot in a car. She went to her mother's home and saw a covered body. For a brief moment, the cover was pulled down and she recognized her brother. She remained at the scene for several hours.
58On the day of the shooting, Mr. Saez received phone calls from his brother's girlfriend. She suggested that he call his mother for information about his brother. When he did, his mother told him his brother had died. He went straight to his mother's home and could see his brother's feet sticking out from the tarp that covered him.
59Mr. Ramos saw his brother at the flea market on the day of the shooting. On his way home, he came across one of the occupants of the Honda, who told him his brother was dead. Mr. Ramos went to the scene and saw his brother lying half out of the car. He called his mother, but could not bring himself to tell her that her son had died.
Analysis
60None of the appellants witnessed the event. They learned about the shooting and the death of Jose in different ways. However, each of them arrived at the scene shortly after the shooting. All four appellants saw a body covered by a tarp. Only Ms. Saez-Larrazabal did not know it was her son's body when she saw the covered body, although she found this out soon after when she went to the hospital.
61The requirement for proximity was considered by Lord Wilberforce in McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.). In that case, one of the plaintiff's children was killed and her husband and the other two children were severely injured. The plaintiff was told of the accident by a motorist who had been at [page215] the scene. She was taken to the hospital where she saw the injured members of her family and the extent of their injuries and heard that her daughter had been killed. As a result of hearing and seeing the results of the accident, the plaintiff suffered severe and persisting nervous shock.
62Lord Wilberforce concluded that the plaintiff had the required proximity. He noted, at p. 422 A.C.:
Experience has shown that to insist on direct or immediate sight or hearing would be impractical and unjust and that under what may be called the "aftermath" doctrine, one who, from close proximity comes very soon on the scene, should not be excluded.
63After the McLoughlin case, the House of Lords had the occasion to consider claims for nervous shock arising from the deaths of 95 people at a football match in Alcock v. Chief Constable. The plaintiffs were friends, relatives and spectators. The plaintiffs had seen or heard of the events in different ways and the court had to consider whether each of them had sufficient proximity to the event. With respect to the plaintiffs who had viewed the event on simultaneous television, he concluded that they did, indeed, satisfy the proximity requirement, stating that
[i]t is in my view the visual image which is all important. It is what is fed to the eyes which makes the instant effect upon the emotions and the lasting effect upon the memory.
64In Dixon v. Nova Scotia (Criminal Injuries Compensation Board), 1988 5653 (NS CA), [1988] N.S.J. No. 263, 52 D.L.R. (4th) 335 (S.C. (A.D.)), the appellant, while on vacation, heard about a homicide on the radio. She then saw an account of the event on television that showed a body that looked like that of her son. Within a day of the homicide, she learned that the deceased was indeed her son. Chipman J.A. concluded that the mere fact that the appellant was not present either when the crime was committed or at its immediate aftermath was not fatal to the claim. The court noted that the Compensation for Victims of Crime Act, S.N.S. 1975, c. 8 did not impose a limitation of time or space.
65In the case at hand, it appears from the Board's reasons that in reaching its conclusion with respect to the third criterion, it, in fact, combined the third and fourth criteria listed in the body of its decision: whether the applicant was at the scene of the occurrence and how the applicant learned of the occurrence.
66In my opinion, the Board erred in law. The criteria, as applied by the Board, are more limited than the requirement articulated in the cases on nervous shock. In concluding that Ms. Saez-Larrazabal and Ms. Gonzales-Delacaridad did not satisfy the requirement for proximity, the Board focused on the way [page216] in which they had learned of Jose's death and the fact that they had not witnessed the shooting.
67However, the common law of nervous shock does not limit compensation to individuals who were direct witnesses of the event, nor does it automatically exclude individuals who first learned of the event from a third party. Ms. Saez-Larrazabal and Ms. Gonzales-Delacaridad were not "simply told about or informed of the accident" (see Dubé, at para. 142). In reaching its conclusion, the Board disregarded the fact that both of these individuals went to the scene shortly after the event and saw Jose's covered body.
(ii) Legal definition of nervous shock
68In each case, the Board concluded that the evidence did not describe a psychological injury as contemplated by the legal definition of nervous shock.
69The appellants submit that the Board erred, in law, in its application of the test for nervous shock.
70What, then, is the legal definition of nervous shock?
71In its reasons, the Board explained the requirement as follows:
To be compensable, the Board must be presented with evidence that establishes that the Applicant suffered psychiatric/ psychological injury induced by the shock resulting from the violent occurrence. The Board generally requires medical and/or psychological evidence to support the claim of the injury known as mental or nervous shock. Problems in dealing with the aftermath of the occurrence, such as difficulty in adjusting to a new lifestyle, stress, financial problems or having to attend court are not compensable.
72According to Zuber J. in Dubé, the psychiatric injury must be induced by shock in order to be compensable.
73Zuber J. cited the decision in Alcock v. Chief Constable. In that decision, Lord Ackner explained "shock", at p. 401 A.C., as follows:
"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. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.
74Lord Ackner distinguished between nervous shock and the grief and depression that so many individuals suffer from the death of a loved one (at p. 400 A.C.):
[T]he law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illness caused in other ways, such as the experience of having to cope with the deprivation consequent upon the death of a loved one, attracts no damages. [page217]
The evidence of nervous shock
75Dr. J. Pilowsky provided a medical report dated November 4, 2010 concerning Ms. Saez-Larrazabal, Ms. Gonzales and Mr. Ramos. Dr. Pilowsky is a licensed clinical and rehabilitation psychologist. The emphasis of his practice is in the assessment and treatment of the sequelae of psychological trauma.
76Mr. Saez did not provide a medical report in support of his claim.
77Dr. Pilowsky stated that each of the three appellants had symptoms that persisted beyond what one would typically expect for the grieving process. He stated that the traumatic nature of Jose's death had triggered an all-encompassing sense of vulnerability and psychological distress which affected their daily functioning in all facets of their lives.
78In Dr. Pilowsky's opinion, the appellants' symptoms were best characterized by major depression. Each also had symptoms of post-traumatic stress disorder.
79In Dr. Pilowsky's opinion, the appellants' symptoms had become entrenched and had caused undue mental and nervous shock. The prognosis for recovery was guarded given that their symptoms were aggravated, which had resulted in serious psychological trauma for all of them.
80Ms. Saez-Larrazabal testified at the Board hearing that she suffered from depression as a result of the murder. She continued to take medication and sleeping pills. She did not go anywhere except to work on weekdays and to the cemetery on Sundays.
81In her application, Ms. Saez-Larrazabal wrote that it was hard for her to sit in the backyard because her son had been killed just behind.
82In his report, Dr. Pilowsky concluded that Ms. Saez was suffering from a major depression disorder as a result of her son's homicide. As well, Ms. Saez was experiencing clinical symptoms of chronic post-traumatic stress disorder. Ms. Saez- Larrazabal had reported to Dr. Pilowsky that she was afraid, nervous, anxious and easily startled, at times believing her family could be further harmed. When someone knocked on the door, she was fearful. She relied on anti-depressants, muscle relaxants and sleeping aids.
83Ms. Gonzales-Delacaridad testified that as a result of her brother's murder, she took pills to sleep and was quite depressed. She said she did not go out much. She had nightmares and flashbacks. [page218]
84Dr. Pilowsky concluded that Ms. Gonzales-Delacaridad was suffering from a major depression disorder and clinical symptoms of chronic post-traumatic stress disorder. She had reported the following symptoms to him: loss of motivation, social isolation, periodic crying, sleep disruption, irregular appetite, intrusive thoughts and excessive worrying. Ms. Gonzales-Delacaridad also disclosed post-traumatic symptoms such as nightmares and flashbacks of the homicide scene and her brother's body.
85Mr. Ramos was 16 years old at the time of the event. He testified that he felt a lot of stress since the tragedy. He said he felt paranoid because he did not understand what happened. He feared for his family. He was depressed and had nightmares.
86In Dr. Pilowsky's opinion, Mr. Ramos was the most psychologically affected of the family. He concluded that Mr. Ramos was suffering from a major depressive disorder and chronic post-traumatic stress disorder.
87Dr. Pilowsky reported that Mr. Ramos had endured ongoing emotional and psychological stress. He was plagued by a host of anxiety symptoms, such as a fear of the worst happening, a pounding heart, nervousness, shaking, fear of losing control and inability to relax. Mr. Ramos had taken one year off from school after Jose's death. He cried frequently when he recounted the details of his trauma and his difficulties. He reported feeling sad much of the time and engaging in frequent bouts of crying when ruminating about his brother's death.
88Mr. Saez testified that he found his brother's death difficult to deal with. He was off work for a month and a half and had problems sleeping. He said he suffered from a little depression. However, Mr. Saez did not present any medical or therapeutic reports.
Analysis
89The Board's reasons for its conclusion are virtually identical in the cases of Ms. Larrazabal, Ms. Gonzales- Delacaridad and Mr. Ramos. They are also very brief:
[A]lthough the Panel does not doubt that the Applicant suffered greatly as a result of [Jose's] tragic death, the evidence, including the reports filed, does not describe a psychological injury as contemplated by the legal definition of nervous shock.
90The Board's reason for its conclusion in the case of Mr. Saez is slightly different, in view of the lack of supporting evidence: [page219]
[A]lthough the Panel does not doubt that the Applicant suffered greatly as a result of his brother's death, there is no evidence before the Panel that describes a psychological injury as contemplated by the legal definition of nervous shock.
91The respondent submits that the evidence before the Board supported a conclusion that the symptoms experienced by the appellants fell within the range of normal grieving for their loss. Had the psychological injuries been caused by nervous shock, one would have expected evidence near to the time of the event, instead of an accumulation of symptoms over time.
92The respondent pointed to the decision in Archibald v. Ontario (Criminal Injuries Compensation Board), [2011] O.J. No. 1158, 2011 ONSC 1472 (Div. Ct.), in which the court concluded that the appellant had not shown an error of law in the Board's refusal to award damages for mental or nervous shock. Swinton J. stated that, given the evidence that the appellant did not witness the shooting and did not seek psychiatric treatment for some years, the Board could reasonably conclude that she did not prove she had suffered the mental or nervous shock.
93While the appellants in this case did not witness the shooting, they were at the scene shortly after the event and they saw Jose's lifeless body.
94There was evidence that the appellants experienced psychological difficulties soon after the event. Ms. Saez- Larrazabal saw her doctor in August 2007 for depression. She visited the doctor on several other occasions in 2008 and 2009 for insomnia and anxiety. She received medication to help her deal with the symptoms. Mr. Ramos did not go back to school for a year.
95In any case, a lack of evidence of symptoms immediately at the time of the event is not determinative of the issue. As noted by Zuber J. in Dubé, at para. 150, the essential requirement is for evidence supporting the conclusion that the sight constituted such an assault on the mind that it led directly to the later psychiatric illness. The fact that symptoms did not immediately or even soon appear is not determinative.
96Neither does the appellants' delay in seeking counselling lead to the conclusion that their injuries were not severe or did not result from the event. The appellants explained to Dr. Pilowsky that they had not sought counselling earlier because they were preoccupied with the court proceedings and did not feel able to further disclose their suffering at the time.
97The respondent suggests that Dr. Pilowsky's report shows an accumulation of symptoms over time, indicative of the normal grieving process. However, in Dr. Pilowsky's opinion, the persistence of the appellants' symptoms went beyond what one would [page220] expect from the normal grieving process and was evidence of serious psychological trauma.
98As noted, the Board's reasons on this point are extremely brief. It is unclear from its reasons whether the lack of evidence to which it refers is a lack of evidence that the event caused the psychological injuries or a lack of evidence that the injuries went beyond normal grieving. In either case, there was ample evidence in the cases of Ms. Saez- Larrazabal, Ms. Gonzales-Delacaridad and Mr. Ramos that their psychological injuries went significantly beyond the normal grieving process. There was also evidence that their experience of the event was one of the causes of their injuries.
99Given this evidence and in view of the brevity of the Board's reasons, I conclude that the Board either applied the wrong test for nervous shock or it failed to appreciate the evidence before it when it applied the test. In either case, the Board committed an error of law.
100I do not, however, conclude that the Board erred in law when it concluded that Mr. Saez did not meet the test for nervous shock, given the lack of any evidence in support of his claim.
Conclusion
101The failure of the Board to consider the proportionality between the victim's conduct and his injuries that resulted in death, as well as the contributing conduct of the offenders constitutes an error of law.
102The Board also erred in law in its application of the criteria for compensation for nervous shock. In particular, it erred when it concluded that Ms. Saez-Larrazabal and Ms. Gonzales-Delacaridad were disentitled to compensation for nervous shock because they had not witnessed the event and had learned about it from a third party. It also erred when it concluded that there was insufficient evidence that the injuries of Ms. Saez-Larrazabal, Ms. Gonzales-Delacaridad and Mr. Ramos satisfied the legal definition for nervous shock.
103The Board did not err in concluding that there was insufficient evidence that Mr. Saez had experienced nervous shock, given the absence of any medical reports or evidence other than his testimony.
104The appellants ask that this court grant the appeal, set aside the decision of the Board and grant the appellants' claims for compensation.
105This is not, in my view, an appropriate case for the court to substitute its decision for the Board's. The Board is in a better [page221] position to conduct the required proportionality analysis and to determine the amount of any compensation.
106I would therefore allow the appeals of Ms. Saez- Larrazabal, Ms. Gonzales-Delacaridad and Mr. Ramos, set aside the orders of the Board and remit the matters to the Board for a new hearing before a differently constituted panel.
107I would dismiss the appeal of Mr. Saez, in view of the lack of supporting medical evidence of nervous shock. Nervous shock was Mr. Saez's only claim for compensation.
108None of the parties sought costs of this appeal. No costs are awarded.
Appeal allowed in respect of three claimants and dismissed in respect of fourth.