CITATION: Tatti v. Criminal Injuries Compensation Board, 2013 ONSC 4320

DIVISIONAL COURT FILE NO.: DC12-0399

DATE: 20130624

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, ASTON, & LEDERER, JJ.

B E T W E E N :

GARY TATTI

Applicant/Appellant

– and –

CRIMINAL INJURIES COMPENSATION BOARD

Respondent/Respondent

Robert J. Hooper, for the Applicant/Appellant

David Fine, for the

Respondent/Respondent

HEARD: February 13, 2013 at Hamilton

MATLOW, J.;

This appeal

[1] This is an appeal by the applicant from the order of the Criminal Injuries Compensation Board (the “Board)” dated August 15, 2012, denying his claim for compensation. For the reasons that follow, the appeal is allowed and the order in appeal is set aside. Because the power of the Board to award compensation is always within the discretion of the Board, the application for compensation is remitted to the Board for a new hearing before a panel differently constituted. Neither party seeks costs of this appeal.

The right of appeal

[2] Section 23 of the Compensation for Victims of Crime Act, R.S.O. 1990, c C.24, (the “Act”) provides for the right of appeal to this Court. It reads as follows:

23. Subject to section 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.

Section 25 of the Act has no application to this appeal.

The standard of review

[3] Although both parties agree that the standard of review applicable to this appeal is correctness, I do not agree. It is my respectful view that the proper standard is reasonableness. The Supreme Court of Canada has determined that, “[w]hen considering a decision of an administrative tribunal applying its home statute, it should be presumed that the appropriate standard of review is reasonableness (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3.S.C.R. 654 at para. 39). This applies to both issues of fact and, as in this case, to issues of law.

The applicant’s claim for compensation

[4] The applicant’s claim was for compensation for “mental and nervous shock”, wage losses and expenses incurred by him following the death of his estranged wife, Bonnie Tatti. Although he and his wife had been separated, they maintained an amicable relationship until the time of her death.

[5] Ms. Tatti died as a result of events that occurred during the course of what the Board described as “drug deal that had gone sour”. She had been a user of prescription drugs containing ingredients favoured by illicit drug users and had just sold some of her drugs on the street in front of the applicant’s house to persons who, after the exchange was completed, drove off in a vehicle without paying her the full amount owed to her. As the purchasers began to drive off, Ms. Tatti grabbed on to their vehicle until she fell on the roadway and suffered injuries that proved to be fatal. The Board found that “she died as a result of a crime of violence” and that she was a “victim” within the meaning of section 5 (a) of the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, (the “Act”).

[6] The applicant testified that, shortly after the accident, he ran out into the street and found Ms. Tatti lying in the middle of the road. The Board described his evidence as follows:

As he approached her he noticed that she was having convulsions and bleeding profusely from the head. At that point he was not sure how the Deceased Victim ended up on the street or what had happened to her. Police were called and the Deceased Victim was taken to hospital where she succumbed to her injuries a month after the accident.

The Board’s reasons

[7] The Board’s decision denying the applicant’s claim was based on its application of section 17 (1) of the Act which reads as follows:

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.

[8] In applying this provision, the Board, on page 5 of its reasons, reached the following conclusions:

Section 17(1) of the Act obligates the Board to consider the principles of proportionality. The relevant circumstances include whether there was any conduct by the Deceased Victim that contributed to her injury as well as the severity of the injury suffered and the actions of the Alleged Offenders. The Board must decide whether to grant compensation, deny compensation or allow a reduced award.

Certainly the Deceased Victim suffered the most severe of injuries and the conduct of the Alleged Offenders was one of utter disregard for her well being. However, the Police Witness testified that at the time of the Deceased Victim’s death, she was actively engaged in illegally trafficking drugs to the Alleged Offenders who, along with her, were fully immersed in the drug trade. The illegal activity was in addition to the Deceased Victim’s deliberate choice to grab on to the Alleged Offender’s vehicle and they tried to flee after “short-changing” her on the deal.

The police evidence was uncontested by the Applicant or counsel and the Board thereby has no issue with accepting it as a true depiction of the event.

In light of the evidence, the Board finds that the Deceased Victim’s involvement in the illegal drug trade, was a relevant circumstance insofar as section 17(1) is concerned. Further, that her contributory behaviour in selling drugs to the Alleged Offenders and then trying to prevent their escape, was a direct cause of the incident that resulted in her death.

When determining whether to refuse or reduce an award, the Board must also weigh the proportionality of the injury with circumstances that it has found to be relevant. We have carefully considered the fatal injury against these relevant circumstances to determine whether compensation ought to be awarded to the applicant without reduction, whether a reduced award of compensation should be awarded or whether compensation ought to be denied.

The Board accepts counsel’s submission that the Deceased Victim’s own addiction to drugs may be viewed as a disability of sorts and that this is a relevant factor. Notwithstanding the Board is not persuaded that this apparent disability should move the Board to still consider partial compensation. In essence, the Board finds that the Applicant’s activities and involvement in illegal drug trafficking constituted a course of action that she ought to have known could result in violence or death and such an activity is harmful to individuals and society at large.

We have concluded that the Deceased Victim was engaged in conduct of such a serious nature that we deny the Applicant any compensation pursuant to the Board’s discretion in accordance with section 17(1) of the Act.

Accordingly, the Board is precluded from making a finding of whether the Applicant has suffered the injury known as mental or nervous shock.

Analysis

[9] Section 5 of the Act provides, in part, that:

the Board, on application therefor, may make an order that it, in its discretion exercised in accordance with this Act, considers proper for the payment of compensation to…

[10] Such payments may be made to the victim, a person who is responsible for the support of the victim or, in the case of a fatality, to the victim’s dependants or estate or to someone who had incurred a specified type of expense on behalf of the victim or her estate.

[11] “Victim” is defined, in section 1 of the Act, to mean:

a person injured or killed in the circumstances set out in section 5.

[12] The applicant made his claim in the capacity of a victim, not as a person falling within the other classes of persons entitled to apply for compensation. He claimed, and his evidence was capable of proving, that he was injured as a result of the criminal conduct of the purchasers of the drugs and that he therefore qualified as a separate victim independent of Ms. Tatti’s qualification as a victim. In other words, there were two separate victims in this case, the applicant and Ms. Tatti.

[13] The Board summarized the applicant’s claim at page 1 of its reasons as follows:

The Applicant claims that, as a direct result of the incident, he suffered the injury known as mental and nervous shock; he incurred a wage loss and expenses in the amount of $1,470.00 for counselling sessions. He also requested consideration for future counselling.

[14] As set out on page 4 of the Board’s reasons, counsel for the applicant submitted to the Board “that it should consider a reduction in the award for pain and suffering and not deny the claim in its entirety. That submission, in my view, may have been unnecessarily generous.

[15] Section 17(1) of the Act required the Board, in its consideration of the applicant’s claim, “to have regard to all relevant circumstances” meaning all circumstances relevant to the applicant’s claim. Instead, the Board considered only the conduct of Ms. Tatti as if the applicant were, or should be held to be, responsible for it. In my view, there was no evidence whatsoever that the applicant’s conduct was anything other than impeccable or that he was involved in some way with Ms. Tatti’s use of prescription drugs or her trafficking in them, including the transaction and subsequent events that led to her death.

[16] If there were some reasonable basis for denying the applicant’s claim solely because of Ms. Tatti’s conduct, it was incumbent on the Board to explain that basis in its reasons. However, the Board’s reasons contain no such explanation.

[17] It follows that, by denying the applicant’s claim solely because of Ms. Tatti’s conduct, without explanation, the Board had regard to circumstances that were not necessarily relevant to his claim contrary to the explicit provisions of section 17(1). Its interpretation and application of section 17(1) were, therefore, unreasonable and, inevitably, so was its decision.

The basis on which this appeal was presented

[18] Given the basis on which this appeal is now determined, it is important to comment on the basis on which this appeal was presented.

[19] The notice of appeal explicitly raised only one ground of appeal described as follows:

The Criminal Injuries Compensation Board erred in law by not considering the deceased, Bonnie Tatti’s addiction to prescription drugs as a disability.

[20] In paragraph 1 of the applicant’s factum, counsel for the applicant added the following:

The Board erred in deciding that Bonnie Tatti’s addiction and issues with drugs prevented any claim under section 17(1) of the Act as they did not embark on a proportionality test.

[21] In paragraphs 1 to 4, inclusive, of the Board’s factum, counsel for the Board stated the following:

1. The issue to be determined in this appeal is whether the Respondent, Criminal Injuries Compensation Board, (the “Board”), was justified in denying the Appellant, Mr. Gary Tatti, compensation as a victim of crime under s. 17(1) of the Compensation for Victims of Crime Act.

2. Mr. Tatti claimed compensation for mental or nervous shock as a result of the death of his wife, Ms. Bonnie Tatti.

3. The Board submits that it (sic) the circumstances of the case it was justified in denying Mr. Tatti compensation. At the time Ms. Tatti suffered her fatal injury, Ms. Tatti was selling drugs and had been short-changed. Rather than accepting that the buyers had paid her less than expected, Ms. Tatti climbed onto their moving vehicle as they were driving away. She eventually fell off the vehicle, striking her skull on the pavement. A few weeks later, Ms. Tatti died in hospital as a result of her injuries.

4. When considering s.17(1) of the Act, the Board assessed the relevant circumstances surrounding Ms. Tatti’s death, applied a proportionality analysis, and then exercised its discretion to deny Mr. Tatti compensation. By following these steps, the Board did not commit an error of law.

[22] Without objection or comment by counsel for the Board, oral argument by both counsel included a detailed examination of the Board’s interpretation and application of section 17(1) of the Act. As a result, there can be no prejudice to the Board by our resting our determination of this appeal as we do. Moreover, by our direction that there be a new hearing, it still remains open to the Board to reconsider its decision and reach a proper conclusion. No vested rights are about to be irrevocably confiscated.

[23] Accordingly, having regard to the unusual circumstances of this appeal, I am satisfied that it is in the public interest and in the interests of both parties that we determine this appeal as we do notwithstanding the language used in the notice of appeal noted above.

Matlow, J.

ASTON and LEDERER JJ. (Concurring)

[24] We have read the reasons of Matlow J. As pointed out in paragraphs 18 to 23 of his reasons, this appeal is ultimately being decided on a basis not raised by the appellant. Our concurrence with the result is premised upon the understanding that the Board will not be limited to the original evidence in its reconsideration.

[25] We agree that the standard of review on this appeal is reasonableness. Even though s. 23 of the Act limits any appeal to a question of law, the Board is interpreting and applying its home statute. See Tetu v. Ontario (Criminal Injuries Compensation Board), 2011 ONSC 782 (Div. Ct.) at para. 2, as well as the general principle found in Dunsmuir v New Brunswick, [2008] S.C.R. 190 at para. 53.

[26] Although we concur with his disposition of the appeal, we are unable to endorse without comment the characterization of the Board’s error by Matlow J.

[27] We would start by observing, in fairness to the Board, that the Board was never asked to distinguish Mr. Tatti’s behaviour or conduct from that of his late wife. Before the Board, and again before this Court, counsel for Mr. Tatti conceded that Ms. Tatti’s engagement in drug dealing was a legitimate and relevant consideration in determining the quantum of Mr. Tatti’s entitlement. He conceded, correctly in our view, that Ms. Tatti’s drug dealing was a circumstance the Board could weigh when exercising the discretion contemplated by s. 17 of the Act.

[28] The Board did not err in taking into account the behaviour and conduct of Ms. Tatti. It only fell into error when it went further and held that: “Accordingly, [based only on her conduct and behaviour] the Board is precluded from making a finding on whether the applicant [Mr. Tatti] has suffered the injury known as mental or nervous shock”. [context and emphasis added]

[29] There was evidence from the report of therapist Lotti Triano establishing a direct connection between the applicant’s “serious psychological injuries” and his having come upon the scene in the immediate aftermath of the incident. The Board would not have been “precluded” from considering a claim of this nature by some stranger who came upon the scene. It is important to recognize that Mr. Tatti’s claim is not the derivative claim of a dependant spouse under s. 5(e) or (f) of the Act; it is the claim of an independent victim.

[30] We agree with Matlow J. that the phrase “any behaviour of the victim” in s.17 of the Act refers to Mr. Tatti’s behaviour. At the same time, the section also requires the Board to “have regard to all relevant circumstances”, so Ms. Tatti’s conduct and behaviour is not necessarily irrelevant to Mr. Tatti’s claim.

[31] Mr. Tatti did know about his wife’s engagement in the drug trade. They were sharing the same residence at the time. The incident occurred on the street right in front of their home. There is no evidence about whether Mr. Tatti assisted, encouraged, discouraged or simply passively accepted what his wife was doing. He may have indirectly benefited financially from her activities. These are all “relevant circumstances” under s. 17.

[32] Although Ms. Tatti’s behaviour and conduct is not irrelevant to Mr. Tatti’s claim, neither is it dispositive of his entitlement under the Act. The Board failed to distinguish between her conduct and his. In considering “proportionality” it erred at law when it decided that it was “precluded” from making any award to Mr. Tatti.

[33] In remitting this matter back to the Board for a re-hearing, the Board will have the ability to admit further evidence respecting Mr. Tatti’s behavior and conduct. There was no focus on that aspect of the claim because of the way the original hearing was conducted. The Board’s focus – the focus invited by Mr. Tatti’s own counsel – was simply on Ms. Tatti’s behaviour and conduct. The way the application was framed for the Board shut the door on any consideration of Mr. Tatti’s own choices related to Ms. Tatti’s drug dealing and to the foreseeability of possible consequential harm to him.

Aston, J.

Lederer, J.

Released: June 24, 2013

CITATION: Tatti v. Criminal Injuries Compensation Board, 2013 ONSC 4320

DIVISIONAL COURT FILE NO.: DC12-0399

DATE: 20130624

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

MATLOW, ASTON, LEDERER, JJ.

B E T W E E N :

GARY TATTI

Applicant/Appellant

– and –

CRIMINAL INJURIES COMPENSATION BOARD

Respondent/Respondent

REASONS FOR JUDGMENT

MATLOW J.

Released: June 24, 2013