Can Victims Sue for Psychological Damages Without Being Involved in the Accident - Snowball v. Ornge, 2017 ONSC 4601

August 15, 2017, Kitchener, Ontario

Posted by: Robert Deutschmann, Personal Injury Lawyer

Snowball v. Ornge, 2017 ONSC 4601

Date of Decision: July 28, 2017
Heard Before: Justice Faieta

Negligence: Can secondary Victims make claims for psychological damages? Can trier of case determine who has the duty of care?

Christopher Snowball, 38, died tragically when the helicopter he was working in crashed and burned while he was working for Ornge on May 31, 2013. As a result of their loss, Mr. Snowball’s family sued Ornge for damages due to their gross negligence. They claimed damages under the Family Law Act, and due to their phycological damages resulting from Mr. Snowball’s death, they also claimed negligence on the part of Ornge.

Ornge took the position that the family’s claims of negligence were not valid. Ornge claimed that in order to claim psychological damages the family members must have been involved in the accident either in it, witnessing it, or seeing its aftermath. Ornge claimed that on this basis the only valid claim was the one made by the Snowballs under the Family Law Act.

Ornge brought their motion under r. 21 of Rules of Civil Procedure for “an order for a determination of a question of law raised by a pleading’. They questioned whether the Snowball’s had the right to make the claim and whether the claims are governed by limitation periods of the Trustee Act or the Limitations Act.

Mr. Justice Faieta stated in his reasons that there have been no cases to date in Canada of family members bringing a claim for psychological damage without having been involved in the accident. Despite the observation, however, Justice Faieta dismissed Ornge’s motion. The Justice found that if was not plain and obvious the Snowball’s claims for psychological damage would fail in court. On this basis, and relying on the Supreme Court decision Saadati v Moorhead, 2017 SCC 28, he allowed the case to proceed. The Supreme Court determined that the answer to whether a case will succeed or not should “turn on the robust application of the elements of an action in negligence by the trier of the fact”

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