A Maple Ridge family has been given the green light to challenge the exclusion of siblings amongst family members who can claim damages under the B.C. Family Compensation Act for the police shooting death of their brother in 2019.
Yin Yin Din and her brother Min Aung started an Family Compensation Act (FCA) claim on Oct. 7, 2021, two years after police shot and killed their brother Kyaw Naing Din at their home in Maple Ridge.
However, under the act – which allows for damages to be recovered from a death caused by a “wrongful act, neglect or default” – only surviving spouses, parents, and children are permitted to make a claim – not siblings.
Justice Bruce Elwood of the Supreme Court of B.C. is allowing Din and Aung to challenge whether the exclusion of siblings violates the Canadian Charter of Rights and Freedoms, and if so, to keep their claim under the FCA.
Ding and Aung want to see a “modern, non-discriminatory interpretation of ‘parents’ which would include adult siblings who provide care and support and stand in a parent-like relationship to a family member with disabilities.”
Kyaw Naing Din lived with schizophrenia and was under the care of medical professionals who prescribed him medication to control his symptoms. He lived with Yin Yin and Min, who were like parents to him.
According to the Reasons for Judgment in the case before the Honourable Justice Bruce Elwood, Kyaw could not live independently due to his mental health and his siblings provided him with daily care, including medical, emotional, and financial support.
But, on Aug. 11, 2019, Yin Yin called 911 for help to take Kyaw to the hospital because he had not taken his medication in several days and he was confused.
When officers arrived at the home, Yin Yin told them Kyaw, who was in his bedroom, was calm but did not want to go to the hospital and she asked them to wait until more of her siblings arrived who could talk to him and get Kyaw, who spoke Burmese, to either take his medicine or go to the hospital.
She told them they could leave and if she needed their assistance again she would call.
Instead, police entered the residence and then the bedroom of Kyaw, without announcing their presence as police or speaking to him.
Police shot Kyaw, who died at the scene.
Yin Yin and Min said they were devastated by the loss of their beloved brother and housemate.
“They suffered grief and mental distress from the loss of Kyaw’s love, companionship, and emotional support,” read the document.
Yin Yin and Min claimed that they also suffered a financial loss from Kyaw’s death, because he could no longer provide his monthly contribution for rent and utility bills.
A previous claim brought by Yin Yin against the Fraser Health Authority and a medical doctor who treated Kyaw for his schizophrenia, was dismissed by Justice Ian Caldwell because, “the FCA does not contemplate a sibling like Yin Yin who provides love, care and support as being a ‘parent’ of the person whose death has been caused.”
In Justice Elwood’s decision, he noted that the decision of his colleague did not consider whether the exclusion of siblings from the categories of family members who may bring a claim under the FCA violates the equality rights guaranteed by the Canadian Charter of Rights and Freedoms.
The defendants in this case which include the Minister of Public Safety and Solicitor General, Constable Matthew Wagner, Constable Daniel Losiak, Constable Benjamin Ouellette, and a Constable John Doe, have argued through their counsel that claims made by Din and Aung under the FCA have no standing because they are siblings – pointing to the decision made by Justice Ian Caldwell – and they say the claim is an abuse of process because the claim is identical to the one Yin Yin made against FHA and the medical doctor.
However, Din and Aung contend Justice Caldwell’s decision was “procedurally unfair and should not be followed in this case.”
Justice Elwood noted that since success was divided in this case, he did not award costs.