Re 1509-00820, 2017 ONCICB 235

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: Jo-Anne Hughes

Date: August 16, 2017

Indexed as: (Re) 1509-00820

ORDER

Introduction

1The Applicant is seeking compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”) for bereavement counselling with respect to the alleged murder of his brother, the Victim, on [date], 2013. He is also seeking compensation for pain and suffering as a direct victim on the basis that he has suffered mental or nervous shock as a result of the death of his brother.

Issue

2The Applicant is required to prove, on a balance of probabilities, that his brother was a victim of a crime of violence pursuant to section 5(a) of the Act, what injury, if any, resulted from it; and whether there are any relevant circumstances that may affect whether or not compensation should be awarded and if so, the amount.

3In order to be compensable as a direct victim, the Applicant is required to prove on a balance of probabilities, that he was also a victim of the crime of violence and that he suffered the injury of mental or nervous shock.

Evidence

Incident

4In his August 2015 submission to the CICB, the Applicant wrote that when his brother was shot, police called his parents and he went with his mother to [Name] Hospital. He wrote that they waited while doctors performed surgery on his brother. Doctors then came out and told them that his brother passed away and they were allowed to see him before he was taken away.

Police Report

5The CICB received a report from the [Name] Police Service in support of the Applicant’s claim which confirmed that the [age] Victim’s demise was caused by the accidental discharge of a firearm. Police wrote that at the time of the incident, the Victim was sitting in a bedroom with three other people in an apartment across the road from the Victim’s family apartment. The Young Offender came into the room with a loaded shotgun and while playing with it, the gun accidentally discharged, hitting the Victim in the neck.

6Police received the 911 call about a shot being fired in an apartment at 23:49 late in the evening of [date], 2013. When they arrived at the scene, the apartment was vacant except for the unresponsive Victim who was suffering from a gunshot wound to his neck. Police provided medical assistance to the Victim until EMS and Firefighters arrived. He was transported by an emergency run to [Hospital] where doctors tried to save his life but he was pronounced dead at 1:55 a.m.

7As a result of their investigation, the Young Offender was charged with manslaughter and four other firearm-related offences. On [date], 2014, he pled guilty to manslaughter and was sentenced to 278 days of pre-sentence custody plus 51 days of open custody and 627 days of conditional supervision.

Injuries

8The Applicant did not describe any injuries which he had as a result of this experience. Also, he did not submit any medical reports to the CICB as requested in letters from the CICB to the Applicant on October 6, 2016 and May 25, 2017.

Analysis and Decision

9Considering the available evidence, the CICB finds that the Victim is a victim of a crime of violence under the Act, and the CICB finds that the Applicant is eligible for bereavement counselling to assist with his grief from the tragic loss of his brother.

10Based on the Applicant’s stated intention to enter into therapy in the near future, the CICB authorizes up to $1,800.00 (exclusive of any applicable taxes) for counselling expenses to be paid directly to a qualified treatment provider upon receipt of a Curriculum Vitae outlining the credentials of the service provider. Therapy sessions must be completed within 36 months of receipt of this Order. It is the CICB’s practice to award up to $100.00 per session for therapy, or up to $125.00 per session for registered psychologists. Payment may be made directly to the treatment provider on a monthly basis, upon submission of an invoice(s) and the required verification(s) from the Applicant. The CICB may also consider therapy expenses that were incurred between the date that the Applicant submitted his final set of documents to the CICB and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $1,800.00 amount described above.

11Under the Act, an individual, who is not the direct recipient of violence, may be eligible for compensation as a victim themselves where the individual is able to establish that he or she has sustained the injury known as mental or nervous shock, which is a legal term and not a medical diagnosis.

12The legal test for mental and nervous shock, summarized in Ulmer v. Weidmann, [2011] B.C.J. No. 158, and cited with approval by the Divisional Court in Wilson v. Criminal Injuries Compensation Board, 2015 ONSC 7876 at para. 27, is as follows:

a. the defendant must take reasonable care not to injure those persons who are so closely and directly affected by his/her actions that he/she ought reasonably to have them in contemplation as being so affected;

b. proximity factors inform the foreseeability analysis for claims of psychiatric injury where there is no physical injury;

c. the relevant proximity factors are:

i. the relational proximity (the closeness of the relationship between the claimant and the victim of the defendant’s conduct),

ii. the locational proximity (being at the scene of a shocking event and observing it or observing its immediate aftermath), and

iii. the temporal proximity (the relation between the time of the event and the onset of the psychiatric illness);

d. the claim must be for actual psychiatric injury caused by the actionable conduct of the defendant;

e. it must be concluded as a matter of law that a reasonable person should foresee that his/her conduct is such that for it could create a risk of direct psychiatric injury to a person of normal fortitude and thereby give rise to a duty of care to avoid such a result;

f. a claimant must prove not just psychological disturbance or upset as a result of the defendant’s negligence but also that his/her psychological disturbance rises to the level of a recognizable psychiatric illness. Mere grief or sorrow caused by a person’s death is not sufficient to support any compensation. The law does not recognize upset, discord, anxiety, agitation or other mental states that fall short of a recognizable psychiatric illness.

13Therefore, to be compensable, the Applicant must establish that he suffered psychiatric or psychological injury, which rises to the level of a recognizable psychiatric illness, induced by the shock resulting from the violent occurrence. Problems in dealing with the aftermath of the occurrence, such as difficulty in adjusting to a new lifestyle, stress, financial problems or having to attend court are not compensable.

14Considering the evidence provided, the CICB has no doubt, based on the evidence before it, that the Applicant was present for the immediate aftermath of the incident while his brother was being treated at the Hospital and that he has a close relationship with him. As a result, it is understandable that he would be profoundly affected by this experience.

15However, the CICB has not received any evidence of actual injuries or any medical reports which would support the Applicant’s claim for mental and nervous shock. Accordingly, the CICB cannot find on a balance of probabilities that the Applicant has suffered the injury known as mental or nervous shock and this aspect of the Applicant’s claim is hereby denied. This finding with respect to the Applicant’s claim for mental or nervous shock in no way suggests that the Applicant has not been psychologically and emotionally affected by this incident. Rather, this finding is based on the fact that the legal test for mental or nervous shock has not been satisfied in this case.

Award

16The CICB orders future payment as follows:

To an Approved Therapist: Section 7 (1) (a) Expenses (future therapy costs) to a maximum of: $1,800.00

TOTAL PRE-AUTHORIZED FOR FUTURE COUNSELLING: $1,800.00

Less Pre-authorized future counselling $1,800.00