2008 BCSC 582 Thompson v. Attorney General (Canada)

Before: The Honourable Madam Justice Allan

Reasons for Judgment

Counsel for the plaintiffs:	A. Cameron Ward
Counsel for the defendants AG Canada, Mike Pfeifer and Fredd Bott:	Helen J. Roberts
Counsel for the defendants Fraser Health Authority and Lois Felkar:	William S. Dick
Counsel for the defendant Estate of Bryan Bruce Heron, deceased:	William J. Harris
Date and place of hearing:	April 14 and 15, 2008
	Vancouver, B.C.

[1] The plaintiffs’ action arises out of the murder by Bryan Heron, of his wife Sherry Heron and his mother-in-law Anna Adams on May 20, 2003 at the Mission Memorial Hospital. The plaintiffs are the siblings of Sherry Heron and the children of Anna Adams. They sue for damages under the Family Compensation Act, R.S.B.C. 1996, c. 126 for pecuniary losses that flow from the death of their mother. They also claim for psychological or psychiatric injuries that they allege arise from the aftermath of the shooting. The plaintiff Lisa Thompson has the largest claim for such injuries.

[2] On December 10, 2007, Master Tokarek granted the application of the defendants Fraser Health Authority and Lois Felkar (the “Applicants”) to state a Special Case to the Court pursuant to Rule 33 to determine a legal issue: whether the plaintiff Lisa Thompson has a viable claim for psychiatric injuries.

[3] On March 7, 2008, Master Tokarek settled the terms of the Special Case. Mr. Ward, counsel for the plaintiffs, declined to participate in the drafting of the Special Case, arguing that the viva voce evidence of Ms. Lisa Thompson was essential to any determination under Rule 33.

[4] At the commencement of these proceedings, the action against the defendants Her Majesty the Queen in Right of the Province of British Columbia and Steve DiCastri was dismissed by consent. The plaintiffs’ application for extending the time to appeal the December 10, 2007 and March 7, 2008 decisions of Master Tokarek was dismissed. I also dismissed the plaintiffs’ application to adjourn this application until the Supreme Court of Canada has released its reasons for judgment in an appeal from the Ontario Court of Appeal in Mustapha v. Culligan of Canada Ltd. (2006), 84 O.R. (3d) 457, 275 D.L.R. (4th) 473, leave to appeal to S.C.C. allowed, [2007] S.C.C.A. No. 109 (heard on March 18, 2008).

[5] The Court is asked to determine a Special Case which has been stated as follows:

Can Lisa Thompson maintain an action in negligence against any of the Defendants to recover compensation for psychiatric injuries she suffered as a consequence of the deaths of Sherry Heron and Anna Adams?

[6] The Applicants are supported by the remaining defendants although Mr. Harris made no submissions on behalf of his client, the Estate of Bryan Heron, deceased. The plaintiffs oppose this application.

Background:

[7] The material facts are set out in the Special Case:

Material Facts

For the purpose of this Special Case, the parties agree on the following material facts:

1. The Plaintiff Lisa Thompson is the sister of Sherry Heron, and the daughter of Anna Adams.

2. In April 2003, Sherry Heron was admitted to Mission Memorial Hospital, and diagnosed with multiple sclerosis. At this time, Sherry Heron was married to Bryan Heron, and the two resided together. Mr. Heron was a long-time employee of the Corrections Branch of the Province of British Columbia.

3. On or about May 13, 2003, Sherry Heron disclosed to Lisa Thompson and Anna Adams that she wished to divorce Mr. Heron, but that she was fearful of Mr. Heron because he had threatened harm in the event that Ms. Heron left him.

4. Immediately following this conversation, Lisa Thompson informed staff at Mission Memorial Hospital of Mr. Heron’s threats. In the company of her husband and brother, Lisa Thompson also attended at the RCMP detachment in Mission and disclosed the same information. Sherry Heron was interviewed by an RCMP constable, but no charges against Mr. Heron were recommended as a result of this investigation.

5. Sherry Heron subsequently retained a family law lawyer to file a divorce action, and also an application for a restraining Order against Bryan Heron. A restraining Order was granted on May 20, 2003.

6. On May 20, 2003, Bryan Heron was served with the divorce petition and restraining Order while on duty as a correctional officer at the Fraser Regional Correctional Centre. Mr. Heron left work before the completion of his shift, went to the Mission Memorial Hospital and fatally shot Sherry Heron and Anna Adams. Mr. Heron then left the Hospital.

7. Three days later, as the police were closing in on Mr. Heron’s location, Mr. Heron shot himself and died of self-inflicted gunshot wounds.

8. Lisa Thompson was not at the Hospital at the time of the shooting of Sherry Heron and Anna Adams, and did not witness these events. Ms. Thompson did not attend the Hospital after the shooting, and did not see the bodies of Sherry Heron or Anna Adams.

9. Lisa Thompson heard about the shooting incident while at home the same day. Friends of Lisa Thompson telephoned Ms. Thompson’s husband and advised there had been a shooting incident at the Hospital. Lisa Thompson took her son to a neighbour’s house. Later that day, the family attended an RCMP detachment and Lisa Thompson gave a statement to the police. Ms. Thompson requested police protection, and she and her family were put in a hotel until Bryan Heron’s body was found three days later.

10. Lisa Thompson is currently off work on disability leave. She has been diagnosed as suffering from a number of psychiatric injuries, including post traumatic stress disorder and major depression. Lisa Thompson has been receiving psychiatric treatment from Dr. H.V. Gopinath since June 2003. Attached as Appendix “A” is Dr. Gopinath’s May 14, 2007 report on Lisa Thompson’s current psychiatric condition.

11. The Plaintiffs allege in this lawsuit that each of the Defendants failed in their duty to protect Sherry Heron and Anna Adams from the foreseeable risk of injury at the hands of Bryan Heron. Lisa Thompson also alleges the Defendants breached the duty of care owed to Ms. Thompson, and that the Defendants are liable for her resulting psychiatric injuries.

12. For the purpose of this Special Case only and without prejudice to the parties’ positions at trial, the parties assume that each of the Defendants breached the relevant standard of care in failing to take steps to prevent the fatal shootings, that Lisa Thompson suffers the injuries described by Dr. Gopinath in Appendix “A”, and that those injuries were caused by the murders of Sherry Heron and Anna Adams.

13. Given the foregoing assumed facts, the Special Case stated for the Court is as follows:

[8] Mr. Ward advised the Court that contrary to the preamble of the Special Case as stated, he did not agree to those material facts. However, as Master Tokarek pointed out on March 7, 2008, Mr. Ward did not suggest any changes to the defendants’ draft of those facts.

The issues:

[9] Ms. Roberts, counsel for the Attorney General of Canada and for Pfeiffer and Bott (the “RCMP Defendants”), adopted the submissions of Mr. Dick, counsel for the Fraser Health Authority and Lois Felkar (the “Hospital Defendants”), who defined the issues as follows:

· Are the plaintiff’s psychological injuries reasonably foreseeable?

· If the plaintiff’s psychiatric injuries are reasonably foreseeable, can the plaintiff satisfy the proximity requirements contemplated in the leading decisions?

The law:

[10] It is unnecessary to canvass the evolution of liability for psychiatric injury at common law. Suffice it to say that liability in tort for what was previously referred to as “nervous shock” has evolved at different rates in different jurisdictions. Originally, psychiatric injuries were considered too remote to be compensated unless they were accompanied by physical injury or impact. However, the law developed to allow recovery against a negligent tortfeaser for psychiatric injury suffered by a plaintiff who witnessed an accident or its immediate aftermath involving another person usually a spouse or a child; e.g.: McLoughlin v. O’Brian, [1982] 2 All E.R. 298, [1983] 1 A.C. 410 (H.L.); Nespolon v. Alford (1998), 40 O.R. (3d) 355, 161 D.L.R. (4th) 646 (C.A.), leave to appeal refused [1998] S.C.C.A. No. 452, 122 O.A.C. 200 (note).

[11] The law in this area has progressed unevenly in the United Kingdom and Canada. However, it appears that, until the Supreme Court of Canada pronounces otherwise, the law in B.C. has been settled in two cases:

· Rhodes Estate v. Canadian National Railway (1990), 50 B.C.L.R. (2d) 273, 75 D.L.R. (4th) 248 (C.A.) is a considered judgment of a five member panel of our Court of Appeal. All five judges agreed that the plaintiff’s claim could not succeed. However, four separate judgments were written and it is difficult to discern the ratio. The Court did, however, concur in concluding that to receive compensation for nervous shock, a plaintiff must be physically present at the accident or immediate aftermath. In Rhodes, the plaintiff’s son was killed in Alberta in a train accident caused by the defendant’s admitted negligence. At the time of the accident, the plaintiff was living on Vancouver Island. She did not witness the accident or its immediate aftermath, although she did attend the site of the train crash several days later. She apparently suffered much inconvenience and distress during that visit. She was not properly directed to the scene of the accident or a memorial service that was held for her son and the other victims. An undertaker later sent her the remains of her son in the mail. She understandably became seriously and chronically depressed after these events. However, the only allegations of negligence against the railway company concerned the collision itself.

· In Devji v. Burnaby (District), 1999 BCCA 599, 70 B.C.L.R. (3d) 42, the parents and two sisters claimed damages for post traumatic stress disorder after being informed of the death of their third daughter in a motor vehicle collision and went to the hospital to see her body. The question was identified as whether the law permits the recovery of damages in those circumstances. McEachern C.J.B.C. delivered reasons for the majority and McKenzie J.A. delivered separate reasons concurring in the result.

[12] Chief Justice McEachern articulated the difficulties inherent in claims for psychiatric injuries. At para. 2, he stated:

Claims for damages for nervous shock (sometimes called post-traumatic stress disorder, or psychological or psychiatric illness or injury) have existed for a long time, and the law has been evolving incrementally. Such claims most commonly arise when a person who is not physically injured suffers psychiatric injury usually as a reaction to a frightening experience or to the injury or death of another person (usually a close relative) as a consequence of the negligence of another person. Because the plaintiff is not physically injured, and may not even come into contact with the defendant, the psychiatric injury alleged is an extra step removed from the negligence of the defendant, and difficult questions of proximity and duty of care arise.

[13] He referred to the policy basis for imposing control mechanisms – initiated in Anns v. Merton London Borough, [1977] 2 All E.R. 492, [1978] A.C. 728 (H.L.) and adopted by the Supreme Court of Canada in Kamloops v. Nielsen, [1984] 2 S.C.R. 2, 10 D.L.R. (4th) 641. That two-part test requires the court to look at (1) whether there is a sufficiently close relationship of proximity between the parties so that it is in the reasonable contemplation of the alleged tortfeaser that wrongdoing on his or her part will harm the plaintiff, and, if so, (2) whether there are any considerations that ought to negative or limit (a) the scope of the duty, (b) the class of persons to whom the duty is owed, or (c) the damages to which a breach of it may give rise.

[14] At para. 65, McEachern C.J.B.C. applied that test, stating:

…assuming reasonable foreseeability, the tests to be applied are whether there is a sufficiently close relationship between the plaintiff and defendant to establish a duty of care, and, if so, whether any public policy negates such duty.

[15] In 2001, the Supreme Court of Canada upheld the two-stage Anns test in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537. At para. 30, the Court stated:

If foreseeability and proximity are established at the first stage, a prima facie duty of care arises. At the second stage of the Anns test, the question still remains whether there are residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.

[16] At para. 37, the Court noted that the second stage of the test required such considerations as whether recognition of the duty of care would create the spectre of “unlimited liability to an unlimited class.”

[17] The Anns test for determining whether a person owes a duty of care was recently affirmed by the Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129 at para. 20.

[18] There is no question that in B.C. reasonable foreseeability of psychiatric harm alone is not sufficient to impose liability on a tortfeaser who physically harms a person other than the plaintiff.

The positions of the parties:

[19] In essence, the defendants submit that because the plaintiff lacked “locational proximity” – that is, she did not witness the shooting or its immediate aftermath – she cannot recover in negligence for nervous shock. They point out that such claims have been considered and rejected by our Court of Appeal in Rhodes and Devji.

[20] Mr. Ward submits that the facts in this case are distinguishable from those in which a plaintiff simply hears of the tragic death of a close family member. Here, the murder was preceded and followed by alarming and horrifying circumstances. Ms. Thompson actually informed the Hospital Defendants and the RCMP Defendants of Mr. Heron’s threats to his wife and actively sought their assistance and protection for her hospitalized sister. After the shootings, Ms. Thompson was terrified for her own safety and that of her family until Mr. Byron killed himself three days later.

[21] The defendants say that those unique circumstances go to the issue of reasonable foreseeability, and not to proximity.

[22] Mr. Ward submits that, just as medical science has evolved in the last century, so should the law. For example, in prior years, a “shell-shocked” soldier would be told to keep a stiff upper lip and have another tot of whiskey. Today, that soldier would be diagnosed with post traumatic stress disorder and treated for the real and debilitating psychiatric disorder that “shell-shock” is. Mr. Ward also suggests that there should be no distinction between a disabling psychiatric injury and a physical injury. He says that the “policy-based control mechanisms” imposed to limit recovery are “artificial barriers” created by the courts’ unjustified fears that the floodgates of litigation will open and extend recovery to an indeterminate number of people. Mr. Ward cites from Mullaney and Handford Tort Liability for Psychiatric Damage, 2nd ed. (Pyrmont: Lawbook co., 2006) at p. 16:

The Australian High Court thus leads the common law world in recognising that psychiatric injuries are as real as physical injuries and that the right to recover should depend essentially on whether such injuries are reasonably foreseeable, freed from artificial and outdated policy restrictions imposed because of a perceived need for additional limits, whether to stem the traditional fear of opening the floodgates, or for any other reason.

[23] However, Mullaney and Handford also note, at page 16, that Australian legislatures have not shared the same view as the High Court and the law in Australia is no longer uniform. Mr. Ward suggests that the Supreme Court of Canada may clarify and modernize the law when it hands down its judgment in Mustapha. Indeed, it could move the law in the direction that the Australian High Court has taken.

[24] In Mustapha, the issue was whether a defendant could be liable for damages for psychiatric harm that consisted of an exaggerated reaction by an obsessive person of particular sensibilities to a relatively minor or trivial incident – the sight of a dead fly in a bottle of consumer water. The trial judge had answered that question in the affirmative, awarding damages of $341,775. The Court of Appeal overturned that award.

[25] The core issue in Mustapha relates to the issue of reasonable foreseeability and not to proximity. Mr. Mustafa was “proximately” located in place and time to the offending event. He saw the dead and decomposing flies in his bottle of water. The issue is whether it was reasonably foreseeable that such a hypersensitive individual would suffer grievous psychiatric harm. Blair J. A. stated, at para. 48:

The policy consideration that applies in this case, however, is the following: what is the ambit of liability in psychiatric harm cases where the harm suffered (a) is significantly disproportionate to the relatively inconsequential nature of the incident in question, and (b) is a function of the particular sensibilities of the plaintiff rather than a function of the sensibilities that a person of normal fortitude would demonstrate? This concern is accommodated, in my view, by factoring the “person of normal fortitude and robustness” principle into the reasonable foreseeability equation, as this Court did in Vanek.

[26] The facts in this case are very different. There is nothing to suggest that the plaintiff was not a “person of normal fortitude and robustness” prior to the tragic events. It was arguably reasonably foreseeable that the defendants’ breaches of their duty of care would harm the plaintiff.

[27] The fact that the plaintiff was not present at, or immediately after, the traumatic event that created her psychiatric condition places this case in the Rhodes and Devji line of cases. Proximity was not in issue in Mestapha and the Supreme Court of Canada may or may not deal with that issue.

[28] Mr. Ward suggests that the outcome would have been different in cases like Rhodes and Devji if, before a tragedy involving a train hitting a pedestrian at a blind crossing, the plaintiff mother of that pedestrian had alerted the railroad operators of the danger and urged them to remedy it, but they had ignored her. Mr. Ward suggests those facts would have created the necessary proximity and foreseeability to allow recovery. In Mr. Dick’s submission, those warnings would go to the foreseeability issue alone, and not to proximity. For the tortfeasor’s duty to arise, there must be proximity in addition to foreseeability.

[29] Mr. Ward also suggests that this case is distinguishable from Rhodes and Devji on the basis that, as a result of the defendants’ negligence, after her sister and mother were killed, the plaintiff lived in terror for three days before Mr. Heron’s body was found. When I pointed out that the question in the Special Case refers specifically to the psychiatric injuries the plaintiff suffered “as a consequence of the deaths of Sherry Heron and Anna Adams”, he replied that the question should not be interpreted narrowly and the question should be read to include “as a consequence of the circumstances of the deaths….” That is, the whole 10 day period from May 13, when the plaintiff reported the threats to the defendants, through to May 23, when Mr. Heron took his own life should be considered. The defendants responded that Mr. Ward seeks to raise a separate cause of action for the first time. In his amended statement of claim, there is no reference to any damages the plaintiff suffered as a result of Bryan Heron being at large for the three days after the killings. All of the damage she has suffered is said to result from her reaction to the news of the death of her mother and sister. Dr. Gopinath’s report does not refer to any of her psychiatric difficulties arising from this three day period. In his opinion, the plaintiff was severely traumatized by the tragic murders of her mother and sister, resulting in severe PTSD, chronic anxiety with intermittent panic attacks and agoraphobia, and recurrent major depression. The question stated for the Special Case deals only with her psychiatric condition arising from the shock of the deaths of her sister and mother.

[30] I agree that Dr. Gopinath’s opinion, which is appended to the Special Case, does not set out any facts relating Ms. Thompson’s psychiatric condition to the three days following the shootings while she was under police protection.

Conclusion:

[31] The tragedy of the killings and their traumatic effect on the plaintiff cannot be overstated. However, I must conclude that I am bound by the governing law in B.C. as set out in Rhodes and Devji. Despite the unique facts here – the plaintiff’s attempts to prevent the tragedy and her subsequent fears for her own and her family’s safety during the three days that Bryan Heron was at large – Ms. Thompson cannot establish the degree of locational proximity required by those cases.

[32] Ms. Thompson sought to protect her sister from the terrible event that actually transpired. In my opinion, it was reasonably foreseeable that if the defendants failed to meet the requisite standard of care, that Ms. Thompson would suffer a psychiatric injury. However, I am bound by the law in B.C. that reasonable foreseeability is not enough. The plaintiff’s claim is barred by the policy based control mechanisms that limit recovery for psychiatric illness. In B.C., there are no decisions where a plaintiff has succeeded in recovering damages for psychiatric illness unless he or she witnessed the event or its immediate aftermath.

[33] There is no question that the distinction between seeing a loved one tragically killed and being told of that fact may appear to be an unfair and arbitrary distinction. However, policy-based considerations have limited the ambit of recovery against tortfeasors. In part, that rule is based on the fear that the abolition of such a distinction would “open the floodgates” to a torrent of litigation from psychiatrically or psychologically affected relatives of victims. It is also based on the fear that the abolition of such a distinction would create a perverse incentive for plaintiffs not to recover. Other examples of such “arbitrary” distinctions include the legislative bar against non-pecuniary damages in actions under the Family Compensation Act and the judicially imposed limit or “cap” on non-pecuniary damages set out by the Supreme Court of Canada in a “trilogy” of cases: Andrews v. Grand & Toy Alberta Ltd. (1978), 83 D.L.R. (3d) 452; Thornton v. Prince George School District No. 57 Board of School Trustee (1978), 83 D.L.R. (3d) 480; and Arnold v. Teno (1978), 83 D.L.R. (3d) 609. Such limits cannot be said to be arbitrary in the sense that the limits apply to all plaintiffs. As a result, although a plaintiff such as Ms. Thompson may suffer loss as a result of the defendants’ conduct, the law does not permit all losses to be compensated.

[34] In the result, I find that the answer to the question “Can Lisa Thompson maintain an action in negligence against any of the Defendants to recover compensation for psychiatric injuries she suffered as a consequence of the deaths of Sherry Heron and Anna Adams?” is “No.” I am satisfied that the Special Case was properly brought as the resolution of this issue of law should result in a saving of expense for the parties, a reduction of the time necessary for trial, and hopefully enhance the possibility of settlement of the remaining issues.

[35] The parties should bear their own costs of this application.

“The Honourable Madam Justice Allan

Citation:	*Thompson v. Attorney General (Canada),*
	2008 BCSC 582