(Re) 1612-00828, 2017 ONCICB 242

CRIMINAL INJURIES COMPENSATION BOARD

Adjudicator: M. Saleem Akhtar

Date: August 22, 2017

Indexed as: (Re) 1612-00828

ORDER

INTRODUCTION

1Before addressing any other issues raised in this Application for adjudication before it, the CICB offers its deepest condolences to the Applicant and through her to the whole family for the tragic loss of her husband and their children’s father.

2This is an Application by the Applicant on behalf of her Child seeking financial compensation from the Criminal Injuries Compensation CICB (the “CICB”) in accordance with the Compensation for Victims of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Child is seeking funds for bereavement counselling due to the murder of his father who was murdered on [date], 2014. Two of three accused in this matter were convicted of manslaughter contrary to the provisions of section 232 of the Criminal Code of Canada R.S.C 1985, c.C-46 (the “Code”).

3The Applicant is also requesting loss of financial support for the Child. In her telephone conversation with the CICB staff on March 10, 2017 at 4:16 pm, she was advised that her request for loss of financial support will be considered as a “Dependency Claim” under her own file 1504-98968, pursuant to section 25 of the Act. In the same telephone conversation, she was further advised that the current Application 1612-00828 pertaining to the Child will be processed for bereavement counselling only, which she understood.

4The Police Report, on file, confirms that the Victim was stabbed and beaten by the two Offenders. The cause of the death was stab wounds to the abdomen with blunt impact head trauma. The head injuries contributed to the bleeding and the Victim bled to death. As per Police Report, the Victim had no criminal record.

DECISION

5In its Decision dated March 13, 2017, the CICB, under section 14 of the Act, approved an Interim Award for bereavement counselling in the amount of $2,000.00 to be used within 18 months of the date of the Order, for the benefit of the Child. In her telephone conversation with the CICB staff on May 10, 2017 at 10:40 am, the Applicant advised that her children did not want to go for counselling. She stated that at this time, her children did not want to talk about what happened to their father. They simply wanted to put this in the past.

6In light of the above, the CICB has determined, pursuant to section 25 of the Act, to rescind its Order dated March 13, 2017 and issue a new Order increasing the amount from $2,000.00 to $2,400.00 and extend the time from 18 months to 48 months from the date of this current Order.

ISSUES

7Pursuant to subsection 5 (a) of the Act, the CICB must determine on a balance of probabilities,

a) Whether a crime of violence occurred against the Victim that caused the ultimate injury, which is death; and if so;

b) Whether the Child described in this matter is the Victim’s son;

c) Whether compensation for bereavement counselling should be awarded and if so, determine the amount;

ANALYSIS AND DECISION

8The CICB must determine on a balance of probabilities if the Victim is a victim of violent crime under subsection 5(a) of the Act. This subsection provides that the Victim’s injury must have resulted from a “crime of violence” constituting an offence against the Code.

9In this claim, the CICB must be able to conclude that the Victim was probably injured as a result of an intentional assault as opposed to being injured in some other way.

Crime of Violence

10Section 11 of the Act provides that proof of conviction shall serve as conclusive evidence that the offence has been committed. Therefore, in light of section 11 of the Act, there is no question that the Victim was a victim of a crime of violence involving the Offenders as proven through the convictions described above.

11Hence, the remaining issues to be decided by the CICB in this matter are as follows:

a) Whether the Child described in this matter is the Victim’s son;

b) Having regard to the relevant circumstances, whether compensation to pay for bereavement counselling should be awarded and, if so, determine the amount.

Nature of Injuries

12The evidence available on file satisfies the CICB that the Child claimant in this Application, is the Victim’s son and his date of birth is [date].

13The Child did not suffer physical injuries as a result of the incident. Therefore, no claim for compensation has been made in this regard. Also, the Child did not meet the criteria for “Mental or Nervous Shock” which is a legal term and not a medical condition in this context. The Applicant was advised of this and she understood.

14In terms of the emotional impact, the Applicant has not provided any report/assessment from any medical professional such as family physician, social worker/therapist or other health professionals/caregivers. In the absence of any professional medical advice/assessment, it is difficult, if not impossible, to truly assess any long-term impact of the assault. Nevertheless, the CICB does understand that such a tragic loss assault does leave emotional scarring on victims, particularly when the victim happens to be a child.

Compensation

15In every case before it, the CICB is required to determine what the relevant circumstances are and to decide whether to grant or deny compensation having regard to those circumstances on a balance of probabilities. There is no automatic right to compensation under the Act. There is only a right to apply for compensation, which may be granted or refused at the discretion of the CICB, in accordance with natural justice. Sheehan and Criminal Injuries Compensation Board (1975), 1974 439 (ON CA), 5 O.R. (2d) 781.

16As such, not all injuries warrant compensation as was noted by the Divisional Court in Pitters v. Ontario (Criminal Injuries Compensation Board), [1996] O.J. No. 4339 (Div. Ct).

17Where a death has occurred as a result of a crime of violence, family members of the Victim may be eligible for certain compensation under the Act including bereavement counselling, which the Applicant has made a claim for on behalf of her Child. In this instance, given the clear evidence of both a crime of violence against the Victim and the possible grief and emotional/psychological impact on the Child, who is the son of the Victim, the CICB finds it reasonable, and within the meaning of sections 5(f) and 7(1) (f) of the Act, to compensate the Child for future therapy expenses to assist him in coping with the impact of the incident.

18It is important to note that the CICB has wide discretion to determine whether or not to award compensation to a victim from public funds. Leung v Ont. (Criminal Injuries Compensation Board) 1995 10629 (ON CTGD), 1995 OJ 1464 (Div. Ct) at para 5). The Act is not intended to make a victim for compensation whole or to provide full indemnity to a victim. Awards are not paid by the wrongdoer as would be the case if a victim pursued compensation through a civil action. The CICB also considers previous awards made by it in similar fact cases/situations in order to determine a reasonable amount of compensation.

19After reviewing the evidence in its totality and having regard to all of the above mentioned circumstances of this case as well as considering previous awards made by the CICB in similar fact cases/situations in order to determine a reasonable amount of compensation, and to maintain consistency across the CICB, the CICB awards $2,400.00 as compensation for future counselling costs to be used within 48 month from the date of this Order.

Future counselling costs

20In order to assist the Child cope with the possible grief and psychological impact due to the murder to his father, as mentioned above, the CICB authorizes up to $2,400.00 (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 (unless the CICB already has a copy on file). These treatment sessions can only be accessed when such a treatment is not covered by other sources, such as the Applicant’s place of employment or insurance benefits or public funds. Counselling therapy sessions must be completed within 48 months of the 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 and the required verification from the Applicant or the Child’s guardian if that person happens to be someone other than the Applicant. The CICB may also consider counselling treatment expenses that were incurred between the times that the Applicant submitted her final set of documents to the CICB on behalf of the Child and the receipt of this Order. If there are such expenses, the CICB will deduct these from the pre-authorized $2,400.00 amount described above.

AWARD

21The CICB now orders payment as follows:

Section 7 (1) (a) future counselling costs $2,400.00

TOTAL AWARD: $2,400.00

Less Future counselling $2,400.00

TOTAL CURRENT AWARD: NIL

22The CICB recognizes that no amount of money can adequately compensate victims for the injustice they have suffered but also finds the amount of the award to be reasonable within the context of the Act.

23Once again, the CICB offers its deepest condolences to the Applicant and through her to the whole family for the tragic loss of her husband and their children’s father.