) ) CHANG HYUN PARK Appellant – v. –, 2013 ONSC 6673

CITATION : Park v. Criminal Injuries Compensation Board, 2013 ONSC 6673 DIVISIONAL COURT FILE NO.: 244/13 DATE: 20131024 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND WARKENTIN JJ. BETWEEN: ) ) CHANG HYUN PARK Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent )) )) )) )) )) Ilan Ishai , for the Appellant David E. Fine , for the Respondent ) ) HEARD at Toronto: October 24, 2013 SACHS J. (ORALLY) Nature of the Proceedings [ 1 ] This is an appeal of a decision by the Criminal Injuries Compensation Board (“the Board”) dated July 26, 2012.

In the decision, the Board denied the appellant’s claim for compensation under the Compensation for Victims of Crime Act , R.S.O. 1990, c. C.24 (“the Act”). Background [ 2 ] The appellant was studying to be a nurse. His relationship with his housemate (“the alleged offender”) deteriorated significantly. On August 13, 2009, the alleged offender set a fire in the common living area, causing many of the appellant’s textbooks to be destroyed. The alleged offender also uttered death threats against the appellant twice in October 2009.

On October 24, 2009, two days after the last death threat, another fire was set at the residence, originating in the hallway outside the appellant’s closed bedroom door as well as a closet. The alleged offender was arrested and charged with uttering threats. The charges were withdrawn after the alleged offender entered into a peace bond. [ 3 ] The appellant claims he has suffered a number of physical symptoms since the incident.

His studies were also impacted significantly – his career was delayed by two years as a result. [ 4 ] In 2011, the appellant applied for compensation for the pain and suffering arising from the alleged offender’s acts. At the hearing before the Board, the appellant and several police officers involved in the investigation of the alleged offender gave oral evidence. The appellant also submitted reports or letters from his therapist, his mental health counsellor and a physician. The Board’s Decision [ 5 ] The Board denied the appellant’s claim for compensation.

It held that the appellant’s injuries were not the type that would qualify him being a victim within the meaning of the Act . The Court’s Jurisdiction

[6] This court has jurisdiction over this matter by virtue of s. 23 of the Act, which provides as follows: 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 onany question of law. Standard of Review [7] Both parties agree that the standard of review applicable to the Board’s decision is reasonableness. Analysis [8] The appellant alleges that the Board made two errors of law. First, it wrongly imposed a requirement that an alleged arsonoffender intend to injure a victim before compensation can be granted under the Act. Second, it erred in law by failing to considerrelevant evidence and misapprehended the evidence it did rely on.

Did the Board Err in Applying the Incorrect Legal Test for Recovery With Respect to the Arson? [9] In considering the appellant’s claim with respect to the alleged arson incident of October 24, 2009, the Board accepted thatthe fire was intentionally caused and stated as follows: Detective Maniaci testified that the investigation by the fire and police department suggested the fire on October 24, 2009 wasintentionally set however; the Applicant was not home at the time of the incident.

As the Applicant was not home at the time of the fire,the Board is unable to conclude that the Alleged Offender intentionally set the home on fire as means of injuring the Applicant. [10] In Centun v. Ontario (Criminal Injuries Compensation Board), 2010 ONSC 6963, the Divisional Court found that a tenantwho was the victim of an arson could recover damages for mental or nervous shock, even though the arsonist did not specifically intendto injure the tenant and the tenant was not at her residence when the arson occurred.

Thus, in finding that to consider compensation forthe arson, the appellant had to establish that the alleged offender intended to injure him, the Board committed an error in law. [11] The respondent submits that the Board in this case was not disagreeing with Centun. It was simply stating as a fact that theappellant was not present when the arson occurred, which is true.

According to the respondent, the Board’s Reasons disclose thathaving made this finding, it then went on to find that the appellant’s psychological state was not caused by witnessing the aftermath ofthe arson but rather, by other non-compensable factors relating to his lost property and his frustration with the fire department and thepolice. [12] Unfortunately, the Board’s Reasons do not disclose that it conducted the causation analysis that the respondent maintains itdid with respect to the arson.

After making its finding with respect to the arson, the Board then went on to deal with the death threatsand in doing so, found that the appellant’s psychological trauma was caused by other factors. Its causation analysis makes no mention ofthe arson and whether its effect on the appellant rose to the level of nervous shock. Did the Board Err in its Appreciation of the Evidence? [13] The Appellant made three submissions in this regard: (

i) The Board failed to mention the report of Dr. Dahle. (ii) The Board misconstrued the report by Mr. Kiers. (iii) The Board misconstrued the report of Mr. Keeley. [14] With respect to the failure to mention Dr. Dahle’s report, we agree with the respondent that a Tribunal is not required tomention every piece of evidence in its Reasons. (See Newfoundland and Labrador Nurses’ Union v.

Newfoundland and Labrador(Treasury Board), 2011 SCC 62 , [2011] 3 S.C.R. 708 at para. 16-19). [15] With respect to the other two reports, while we agree that the Tribunal may have misconstrued these reports, we are consciousof the fact that, as stated by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 atpara. 19: Appellate review does not include consideration of questions of fact or questions of mixed fact and law. Sufficiency of the evidence, itsadequacy or otherwise to sustain the standard of proof required of it is beyond appellate scrutiny.

Whether there is any evidence tosupport a finding of fact is a question of law, hence open to review. A question of law is also raised when a conclusion of fact is foundedupon mere speculation rather than inference. (Cites omitted). [16] Therefore, if this had been the only ground of appeal, we may well not have granted the appeal. However, as we are remittingthe matter back to the Board for a new hearing, we would ask the Board to be mindful of the fact that Mr. Kiers’ report does not makeany reference to the police investigation and the fire department as being a cause of the appellant’s injuries and that Mr.

Keeley’s reportdoes not go so far as to find that the appellant’s psychological state stemmed from the police and fire department handling of the matter

and the loss of personal property. What it says is that the event was traumatizing and that the appellant “suffered further psychological shock” (emphasis added) due to the response of the police and fire department. Conclusion [ 17 ] For these reasons, we would allow the appeal and remit the matter back to the Board for a re-hearing in accordance with these reasons before a differently constituted panel. HIMEL J. [ 18 ] I have endorsed the back of the Appeal Book, “For oral reasons given, the appeal is allowed and the matter is remitted back to the Board for a re-hearing before a newly constituted Tribunal.

By agreement, there will be no order as to costs.” SACHS J. HIMEL J. WARKENTIN J. Date of Reasons for Judgment: October 24, 2013 Date of Release: October 28, 2013 CITATION : Park v. Criminal Injuries Compensation Board, 2013 ONSC 6673 DIVISIONAL COURT FILE NO.: 244/13 DATE: 20131024 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT HIMEL, SACHS AND WARKENTIN JJ. BETWEEN:

CHANG HYUN PARK Appellant – and – CRIMINAL INJURIES COMPENSATION BOARD Respondent ORAL REASONS FOR JUDGMENT SACHS J. Date of Reasons for Judgment: October 24, 2013 Date of Release: October 28, 2013