Canada: Snowball V Ornge: Court Leaves The Door Open For Secondary Victim Claims

On May 31, 2013, Christopher Snowball was tragically killed while operating a helicopter for his employer, Ornge.  As a result of the incident, his family commenced an action against Ornge for damages.  In addition to claiming damages under s. 61 of the Family Law Act, members of the Snowball family also claimed damages in negligence arising out of the psychological injuries that they had suffered as a result of Christopher's death.

The defendant, Ornge, took the position that the claims in negligence for psychological distress were untenable in law.  Ornge's position was that in order to claim psychological damages, an individual must either have been injured in the incident, witnessed the incident, or witnessed the aftermath of the incident.  Ornge brought a motion under Rule 21 for a declaration that the plaintiffs could not succeed in their psychological damages claims, and that only the Family Law Act claims could proceed.

In his reasons, reported at Snowball v. Ornge, 2017 ONSC 4601, Justice Faieta confirmed that there were no known cases in Canada of family members successfully bringing a claim for psychological damages without having been involved in the incident:

"The plaintiffs submit that claims in negligence for damages for mental injury suffered by a family member following the injury or death of another family member are allowed. Some cases arise from witnessing the bodily injury or death suffered by a family member: Logan v. Lovesy, [1983] O.J. No. 262 (H.C.).  Other cases arise from seeing the aftermath of the accident involving a family member: McCartney v. Andrews, [1987] O.J. No. 1092 (H.C.); and McLoughlin v. O'Brian, [1983] 1 A.C. 410 (H.L.); or witnessing the injury or death of a stranger that the claimant tried to save following an accident: Bechard v. Haliburton Estate (1991), 1991 CanLII 7362 (ON CA), 5 O.R. (3d) 512 (C.A.).  However, none of the cases provided by the plaintiffs involve a situation where damages for mental injury have been awarded to a person who has not suffered bodily injury or who has not witnessed the injury or death of another person or its immediate aftermath.  Courts have refused to award damages for mental injury to a person who is merely informed of an accident: Abramzik et al. v. Brenner et al. (1967), 1967 CanLII 415 (SK CA), 65 D.L.R. (2d) 651 (Sask. C.A.); Rhodes Estate v. C.N.R., 1990 CanLII 5401 (BC CA), 50 B.C.L.R. (2d) 273 (C.A.), leave to appeal refused, [1991] S.C.C.A. No. 1 and Latimer, at paras. 12, 14." [emphasis added]

Despite the above observation, Justice Faieta dismissed Ornge's motion.  He found that it was not plain and obvious that the plaintiff's claims for psychological damages could not succeed.  He concluded, relying on the recent Supreme Court decision of Saadati v. Moorhead, 2017 SCC 28 ("Saadati") that the answer to this question, "should turn on the robust application of the elements of an action in negligence by the trier of fact."


It is questionable as to whether Justice Faieta is correct that the answer to whether there is a duty of care is properly left to the trier of fact.  Given that there did not appear to be any factual dispute between the parties, there is a strong argument to make that His Honour was in a position to answer the question as to whether a duty of care existed on the record before him.

From a tort law theory perspective, the answer to this question is an extremely interesting one.  In the Accident Benefits context, certain family members not involved in accidents are allowed to claim benefits if they have suffered a psychological injury as a result of their loved one's accident, and there is no additional requirement that they be involved in the accident.  Ultimately, given the increasingly expansive treatment of psychological injuries in recent cases, such as Saadati, it remains to be seen how the courts will answer this question.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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