) ) CHERYL CENTEN Appellant – v. –, 2010 ONSC 6963

CITATION : Centen v. Criminal Injuries Compensation Board, 2010 ONSC 6963 DIVISIONAL COURT FILE NO.: 621/09 DATE: 20101217 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., MATLOW and SWINTON JJ. BETWEEN: ) ) CHERYL CENTEN Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent )) )) )) )) )) Sheila Cuthbertson, for the Appellant David E.

Fine, for the Respondent ) HEARD: September 23, 2010 at Toronto MATLOW, J.: [ 1 ] Cheryl Centen appeals from a decision of the Criminal Injuries Compensation Board made on November 12, 2009, pursuant to the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24 (the “Act”). By the order in appeal the Board dismissed the appellant’s claim for compensation for injuries suffered by her as a result of an incident which occurred on December 24, 2001, at her home in Toronto. [ 2 ] Judgment is to issue allowing this appeal and setting aside the order of the Board.

The appellant’s claim is remitted for a new hearing before the Board differently constituted. [ 3 ] The parties have agreed that there be no award of costs and none is made. [ 4 ] The appellant’s right of appeal to this Court is set out in

section 23 of the Act which confers a right of appeal from any decision of the Board on any question of law. [ 5 ] Both parties submit that the standard of review that ought to be applied is that of correctness. I agree. [ 6 ] The incident which caused the appellant’s injuries was a fire set by arsonists unknown to her to the property immediately adjacent to the building in which her apartment was located. The fire spread and eventually led to an explosion which destroyed the building in which she resided.

As a result of the fire, the appellant’s personal property, except for a coat, was destroyed and her cat was killed. Two people died in the fire. The persons responsible for setting the fire were convicted of various offences including manslaughter, arson and damage to property.

[ 7 ] At the time of the fire the appellant was in church where she learned from a friend that her building had been blown up. When she returned to her home she was at first prevented from entering by the Fire Marshall. When she entered she saw water damage everywhere, melted items and windows and cupboards that had been destroyed.

Several days later when the appellant returned to the remains of her home, she saw a body in the basement and she later read in a newspaper that someone had burned to death in the fire. [ 8 ] The appellant’s injuries, as found by the Board, were described, in part, at page 3 and following of the Board’s reasons as follows: The Board is in receipt of a letter the Applicant’s doctor wrote to her counsel dated February 23, 2005.

It confirms that the Applicant suffered “a great deal of psychological injury from the fire damage to her apartment and the loss of her cat.” She was shocked to learn that her home was so badly damaged she couldn’t access it. She was rendered homeless and eventually stayed with a friend whose alcoholic binges added more stress to her life. The doctor continues to explain that the initial distress was compounded by financial worries and sleeplessness and because the fire occurred on Christmas Eve 2001, the Applicant was also upset about the loss of gifts.

She became further distressed when she learned that two bodies had been found on the site. According to the doctor’s letter, the Applicant “suffers from migraine headaches and seemed to have lost her prescription medications for this. She was trying to obtain help via her MP or City Hall, but no-one responded.

She needed help to pay 1 st and last months rent on a new place to live, but this too proved very difficult.” She further states that in her opinion, the Applicant has suffered “severe psychological injuries and is still suffering, though less intently now, 3 years after the fire!” She also became more distressed as the anniversary of the fire approached. When the fire alarm in her new home went off and brought fire men to the site, she experienced renewed feelings of fear and anxiety. She became more depressed and anxious again.

She experienced a loss of appetite, insomnia, loss of energy and flashbacks continue to occur around the anniversary date. The doctor concluded that the Applicant’s prognosis is guarded. The Applicant was also treated by a psychologist after the incident and is in on-going counselling. A letter dated April 29, 2009 states that the Applicant is suffering from Post Traumatic Stress Disorder since the incident.

Her symptoms are described as: • Recurrent and intrusive distressing memories and anxiety attacks hearing alarms • Feeling as if event is recurring with fire and police alarms • Intense psychological distress, panic, depression symptoms • Numbing through life • Major difficulties in concentration • Major difficulties with thinking and feeling • Irritability and loss of control and anger • Sleep difficulties and difficulties functioning He concluded that “these difficulties cause major distress and impairment in social and occupational functioning.

These symptoms are a direct result of the above traumatic experience of pain and loss”. [ 9 ] The appellant’s right to make a claim for compensation and the Board’s jurisdiction to decide whether to grant it are both set out in

section 5 of the Act which reads, in part, as follows; 5. Where any person is injured or killed by any act or omission in Ontario of any other person occurring in or resulting from, (

a) the commission of a crime of violence….including arson 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, (

d) the victim. [ 10 ] The word “victim” is defined in

section 1 of the Act as follows: “victim” means a person injured or killed in the circumstances set out in

section 5. [ 11 ] The word “injury” is defined in

section 1 of the Act as follows: “injury” means actual bodily harm and includes pregnancy and mental or nervous shock and “injured” has a corresponding meaning (emphasis added). [ 12 ] The Board went on to analyse the appellant’s claim for injuries at page 5 and following of the Board’s reasons as follows: The Applicant did not suffer physical injuries as a result of the incident, and in fact was not present when the arson occurred. The only claim that she may bring is for the injury known as mental or nervous shock.

The Board considers the following criteria in deciding whether an Applicant has sustained the injury known as mental or nervous shock, which is a legal term not medical condition: • The degree of violence involved in the occurrence; • How close was the relationship between the Applicant and the person involved;

• Whether the Applicant was at the scene of the occurrence; and • How the Applicant learned of the occurrence. To be compensable, the Applicant must establish that she suffered psychiatric/psychological injury induced by the shock resulting fromthe violent occurrence. The Board requires medical and/or psychological evidence to support the claim of the injury known as mental ornervous 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.

The Board carefully considered the evidence presented against the criteria for mental of nervous shock as set out above. There iscertainly no question that this was a violent crime that destroyed the Applicant’s home, killed her beloved cat and had apsychological impact on her. Notwithstanding, the threshold for the injury known as mental or nervous shock is relatively high, andusually involves cases of murder and/or the Applicant being at the scene of a crime as it unfolds. The Applicant was not at home duringthe fire, nor did she have a close relationship with the deceased victims.

While Board recognizes that the Applicant is still feelingtraumatized by this incident and empathizes with her losses, the Board does not find that the criteria for nervous shock have been met.The claim is therefore denied. (emphasis added) [13] The criteria which the Board applied in its analysis to deny the appellant’s claim are set out by the Board in substantially theidentical language contained in a document bearing the Board’s letterhead titled Fact Sheet Personal Injury/ Injury Known As Mental OrNervous Shock (Revised March: 2009) which was included in the evidence before the Board.

The criteria substantially correspond withthe rules applicable to a plaintiff seeking relief by civil action for nervous shock caused by a person who commits a tort. [14] The first paragraph of this document contains a warning that the criteria set out in the document are to be applied incircumstances where the person seeking compensation is a secondary victim who has not suffered injuries directly but is seekingcompensation as a result of witnessing or learning about a violent crime committed against someone else.

It reads as follows: Most claims brought before the Board are as a result of physical injuries suffered by victims of crimes of violence. However, where aperson suffers mental or nervous shock as a result of witnessing or learning about a violent crime committed against someone else, he orshe may pursue a claim for losses associated with that shock. [15] However, it is important to observe that the appellant’s claim to the Board was made as a primary or direct victim and not as asecondary or indirect victim who had merely witnessed or learned about a violent crime committed against someone else.

Accordingly,the criteria applied ought not to have been applied by the Board in its analysis of the appellant’s claim. In limiting itself to aconsideration of only these criteria, the Board improperly fettered its discretion and thereby erred in failing to consider the appellant’sentitlement to compensation as a primary victim. [16] The Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 , [2008] 2 S.C.R. 114 dealt withrecovery for mental injury in a tort context.

The Court held that recovery for mental injury is possible if it is reasonably foreseeable thata person of ordinary fortitude would suffer mental injury in the circumstances. It does not limit recovery to those situations where aperson suffers nervous shock as a result of witnessing or learning about a violent crime committed against someone else.

The Board’sguidelines appear to be premised on recovery for secondary victims only. [17] To avoid confusion for Board members who hear similar cases in the future, it may be wise for the Board to reconsider itsguidelines in light of the evolution of the law. [18] The Board’s reasons indicate that it denied the appellant’s claim, based on its application of the criteria, solely for the followingtwo reasons: 1) The appellant was not at home during the fire (“factor 1”). 2) The appellant did not have a close relationship with the dead victims (“factor 2”). [19] However, the fact that the appellant was not at home during the fire bears no rational connection to her entitlement tocompensation.

Although she was in church at the time that the fire was set, she returned home as soon as she was told about the fire. Shethen saw the remains of her home and the other consequences of the fire and her emotional distress began from that moment on.

There isno reason to believe that her reaction would have been significantly different had she been present in her home at the time of the fire andmanaged to leave without suffering physical injury. [20] As well, the fact that the appellant did not have a close relationship with the dead victims is totally immaterial except, perhaps,with respect to the quantum of compensation to which she may be entitled. Her claim did not rest on nervous shock arising from learningabout their deaths. It should have made no difference to the success of her claim had there been no deaths at all.

Her claim was as aprimary victim who claimed to be emotionally injured by the arson directly and not as a secondary victim who was affected by thedeaths of others. [21] By regarding the appellant as a secondary victim and by applying the wrong criteria in deciding to deny her claim, the Boardmisapplied the law and failed to exercise its discretion in accordance with the Act as required by

section 5 (

c) of the Act. The Board wasrequired to determine whether there was nervous shock that was a reasonably foreseeable result in the circumstances – that is, it wasreasonably foreseeable that a person of ordinary fortitude would suffer such an injury. [22] We recognize that the Board has a wide discretion. In Sheehan v Ontario (Criminal Injuries Compensation Board) (1974), (ON CA), 5 O.R. (2d) 781, at paragraph 14 the Court of Appeal recognized the scope and limits of the Board’s discretionarypower to award compensation as follows: 14. Apart from the obligation not to act arbitrarily or capriciously and to observe the principles of natural justice (and there is no

allegation that the Board offended in any of these regards) the jurisdiction of the Board to determine in each case what were the relevant circumstances and to decide having regard to these circumstances is untrammeled. [ 23 ] However, by applying the guidelines as it did, the Board failed to properly consider the appellant’s entitlement to compensation. It erred in law and this Court is now required to intervene. Matlow, J. Then, R.S.J. Swinton, J. Released: December , 2010 CITATION : Centen v.

Criminal Injuries Compensation Board, 2010 ONSC 6963 DIVISIONAL COURT FILE NO.: 621/09 DATE: 20101217 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT B E T W E E N : CHERYL CENTEN Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent REASONS FOR JUDGMENT MATLOW J.

RELEASED: December 17, 2010