CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: M. Saleem Akhtar
Indexed as: (Re) 1702-00436
ORDER
INTRODUCTION
1The Applicant is seeking financial compensation from the Criminal Injuries Compensation Board (CICB) in accordance with the Compensation for Applicants of Crime Act, RSO 1990, c. C.24, as amended (the “Act”). The Applicant is seeking compensation for pain and suffering resulting from psychological injuries that he claims he sustained due to witnessing his spouse being injured by a drive-by-shooting on [date], 2016, in the Province of Ontario. There was no conviction in this matter because no suspects could be identified/apprehended.
DECISION
2For the reasons set out below, the CICB approves the claim made by the Applicant in relation to the incident that caused him psychological injuries, as mentioned above, and awards the Applicant the sum of $2,000.00 as compensation for pain and suffering.
ISSUES
3In this case, a crime of violence has been committed against the Applicant’s spouse causing her both physical and emotional injuries within the meaning of and pursuant to subsection 5(a) of the Act. The Applicant’s spouse is the primary/principal Applicant in this matter. The Applicant has not claimed any physical injuries as a result of the incident, and so the only claim he may bring forward is for the injury knowns as “mental or nervous shock” which is a legal term and not a medical condition.
4In this matter, the issues to be decided by the CICB are as follows:
a) Has the Applicant provided evidence to establish that the incident he witnessed was exceedingly violent?
b) Was the Applicant present at the scene of the incident or came upon the scene of the incident while it unfolded?
c) Did the Applicant have a close relationship to the primary/principal Applicant?
d) Did the Applicant suffer significant psychological or psychiatric injury as a result of the impact of witnessing the occurrence that generally would require significant therapeutic treatment?
e) The nature and the extent of the psychological injuries sustained, and
f) Having regard to the relevant circumstances, whether compensation should be awarded and if so, determine the amount.
5In simple words, to be compensable, the Applicant must establish that he suffered psychiatric or psychological injury induced by witnessing the assault by the Alleged Offenders. The CICB requires medical and/or psychological evidence to support the claim of the injury known as “mental or nervous shock”. 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 hospital to care for the primary Applicant or to attend court are not compensable.
DOCUMENTARY EVIDENCE
Applicant's written submissions regarding the incident
6In his written Application to the CICB, the Applicant described the incident under the heading “Details of the Crime” as follows:
On [date], 2016 around 2:30 a.m. myself and wife was standing on [Street], outside of [Name] Hotel. There was a guy who openly started gun-fire and the person was approaching to where I was standing and he was firing openly. My wife got a gunshot on her right leg close to the ankle on the calf muscle. The offender kept firing while I grabbed my injured wife, put her in the car and took off to the nearest hospital.
Applicant’s written submissions regarding his injuries
7In his Application, the Applicant described his injuries as follows:
This incident of crime has mentally affected me which unfortunately has affected my daily life. Any loud noise, especially watching a movie, takes me back to that night and I get all worried, anxious and petrified… we both are scared to go to [location]. Psychologically and emotionally, this incident has taken a toll on myself…
Police Report
8The Police Report on file confirms that the Applicant’s wife was injured by an unknown person after they discharged a firearm in the area. Her injury appeared to be a result of a stray bullet and she was not the intended target. The Report adds that “[Applicant] was uninjured, but provided police with a written statement and cooperated fully.”
ORAL HEARING
9In his sworn oral testimony before the CICB on October 25, 2017, the Applicant told that he and his wife were standing in front of a hotel when “a bunch of guys started random shooting” which resulted in injuries to his spouse. Shooting was still going on when he grabbed his wife and took her to [Name] Hospital for treatment. It was traumatizing seeing her wounded. The matter was reported to the police and he cooperated with the police. No suspects could be identified/apprehended.
10In response to a question from the Panel, the Applicant told that neither his wife nor he was the intended target of the shooting. He added that his spouse was seriously wounded. However, he did not sustain any physical injury.
11In terms of the emotional impact, the Applicant stated that he was scared to go to [location]. He feels uneasy and uncomfortable attending social settings. He gets anxious and petrified. The incident has changed his life and that of his spouse and has taken a toll on their personal relationship. They don’t feel safe anymore. They are always scared, which has hampered their quality of life. They don’t step out late at night.
12In response to a question from the Panel, the Applicant told that he attended two counselling sessions through Employee Assistance Program (EAP). He added that the counselling sessions were over the phone and that he did not remember who the counsellors were. There were two different counsellors that he spoke with over the phone.
13Responding to another question, the Applicant told that he did not discuss his emotional issues with his Family Physician, though, he did see him a few times since the incident in relation to other matters such as his blood pressure issues. He, however, clarified that blood pressure issue was pre-existing.
14When asked by the Panel if he thought that more counselling sessions would be useful, the Applicant replied that he did not want any counselling. He was managing the impact his own way, with the help from the family.
15When asked if there was any lingering on emotional impact on his day-to-day life, the Applicant responded there was “no lingering on impact.” He added he had gotten a lot better with the passage of time, however, his wife was still suffering and was taking a much longer time to overcome.
ANALYSIS AND DECISION
Crime of Violence and Criteria for Mental or Nervous Shock
16In assessing this claim, the CICB has considered this Application against the criteria for “mental or nervous shock” as outlined above. There is certainly no question that the principal victim (Applicant’s spouse) met with a degree of violent assault on [date], 2016. The Applicant’s written submissions, oral testimony and the Police Report are consistent in that the Applicant witnessed his spouse shot at by the Alleged Offenders. Upon seeing his spouse being subjected to random shooting, the Applicant suffered a significant psychological or psychiatric injury that would reasonably and on a balance of probabilities fall within the scope and criteria for the injury known as “mental or nervous shock” and, that he had to seek counselling therapy to address the psychological impact accruing from the incident. Therefore, the CICB has determined that the Applicant is a victim within the meaning of and pursuant to section 5(a) of the Act and that he sustained psychological injuries resulting from witnessing the shooting scene and his spouse shot at.
Injuries
17The evidence indicates and the CICB notes that the Applicant has not claimed any physical injuries in this matter. However, in terms of psychological injuries, the Applicant claims that his life and the quality of his life have changed. He feels scared, anxious and petrified.
18In order to attend to the emotional injuries caused by the mental or nervous shock that the Applicant claims he sustained as a result of witnessing his spouse randomly shot at causing her injuries, he attended two counselling sessions through his work using Employee Assistance Program (EAP). The CICB accepts the Applicant’s account of the emotional impact on him induced by the mental or nervous shock.
19In support of his psychological injuries claim, the Applicant has not submitted any incident-related treatment and/or assessment reports from any health professional such as a psychologist/psychiatrist, counsellor/family physician.
20In the absence of professional medical assessment, it is difficult, if not impossible, to assess any long-term impact of the incident on the Applicant. Nevertheless, the CICB understands that such a traumatic incident does leave behind emotional scarring, at least to some degree and for some amount of time, particularly, when the primary victim happens to be a close loved one, such as is the case in this matter.
21The Applicant’s oral testimony was inherently consistent with his written submissions made in his Application. He was straight forward and honest in responding to questions from the CICB. He was not evasive in his responses. His demeanour was that of a reliable and credible person. His testimony was convincing, credible and reliable. Hence, the CICB accepts the Applicant’s account of the incident as well as that of his emotional/psychological injuries and their resultant impact on him, as described and claimed by him.
Amount of Compensation
22In 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.
23As 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).
24Based upon a careful review of the documentation, on file, as well as the Applicant’s testimony at the oral hearing, the CICB finds the Applicant not only a victim within the meaning of and pursuant to subsection 5(a) of the Act but also accepts that he sustained emotional injuries, as claimed by him in his Application and also described at the oral hearing.
25In assessing compensation for pain and suffering, the CICB has considered:
a) The nature of the incident causing psychological injuries;
b) The possible emotional/psychological impact of the incident;
c) The possible ongoing impact on the Applicant’s overall health, relationships and productivity.
26It 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 whole or to provide full indemnity to a victim. The CICB is mindful that 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.
27After reviewing the evidence in its totality, both written and oral, 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 the Applicant $2,000.00 as compensation for pain and suffering.
Expenses
28The CICB has considered the Applicant’s claim in respect to ambulance and travel to treatment costs. The CICB generally requires original receipts and/or other supporting documentation for any expenses that are claimed, both to verify the amount claimed and to confirm that such costs were not covered by other sources, such as private insurance or public funds. In the absence of such evidence, and having found no compelling reason to deviate from its usual practice in this instance, the CICB denies this part of the claim.
Loss of Income
29With respect to the Applicant’s claim for income loss, the CICB notes that it generally requires supporting documentation such as employer’s report, pay stubs or Income Tax records and/or medical confirmation of disability in order to verify an Applicant’s employment status and average net earnings at the time of the incident, and to determine whether any income-replacement benefits were received during the period being claimed, and to confirm the period of disability. In the absence of relevant supporting documentation, and having found no compelling reasons to deviate from its usual practice in this instance, the CICB finds that the Applicant has failed to establish his claim for income loss and the claim in that regard is hereby denied.
AWARD
30The CICB now orders payment as follows:
Section 7 (1) (d) Pain and Suffering $2,000.00
TOTAL CURRENT AWARD: $2,000.00
31The 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.
PAYMENT
32THE CICB ORDERS that the following sums be paid forthwith to:
The Applicant $2,000.00
DATED in Toronto this 6th day of November, 2017
___________________________
M. Saleem Akhtar, Member