Board either applied wrong test for nervous shock or failed to appreciate evidence

ELIGIBILITY

Board either applied wrong test for nervous shock or failed to appreciate evidence

Deceased was shot and killed. Offenders were found guilty of first degree murder. Appellants sought compensation for nervous shock arising from death. Board denied appellants compensation on basis of deceased’s contributory conduct. Board concluded there was insufficient evidence to establish claim for nervous shock. Appeals were allowed except brother’s appeal. Board erred in failing to apply required proportionality analysis when board decided not to award any compensation. Board did not consider contribution of two offenders. Board did not consider proportionality between deceased’s conduct and very severe injuries deceased sustained which resulted in death. Board either applied wrong test for nervous shock or failed to appreciate evidence before it when it applied test. Common law of nervous shock did not limit compensation to individuals who were direct witnesses of event and did not automatically exclude individuals who first learned of event from third party. Board disregarded fact appellants went to scene and saw deceased’s covered body. In concluding appellants did not satisfy requirement for proximity board focused on way in which appellants learned of deceased’s death and fact appellant did not witness shooting. There was evidence appellants experienced psychological difficulties soon after event. Board did not err in law in concluding brother did not meet test for nervous shock given lack of evidence in support of claim.
Saez-Larrazabal v. Criminal Injuries Compensation Board (June 21, 2012, Ont. S.C.J. (Div. Ct.), Sachs, Whalen and Herman JJ., File No. 176/11; 177/11; 178/11; 179/11) 218 A.C.W.S. (3d) 818 (15 pp.).