CRIMINAL INJURIES COMPENSATION BOARD
Adjudicator: Pamela Arnott Date: December 13, 2017 Indexed as: (Re) 1509-00687
ORDER
INTRODUCTION
1The Applicant is seeking financial 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”). The Applicant is seeking compensation for funeral expenses, loss of financial support, and bereavement counselling as a result of the homicide of her son, the deceased Victim, that occurred on [date], 2015. The incident was reported to the Police and resulted in a conviction.
DECISION
2The CICB approves the claim and awards the Applicant the sum of $6,387.40 for the reasons set out below.
ISSUES
3A conviction may be taken as conclusive evidence that an offence has been committed pursuant to section 11 of the Act. Given that there was a conviction in this case that resulted in a death, the CICB finds that the deceased Victim is a victim of a crime of violence within the meaning of section 5(a) of the Act.
4The Applicant must provide reliable evidence to support her claims for:
a. expenses actually and reasonably incurred as a result of her son’s death pursuant to subsection 7(1)(a) of the Act; and
b. pecuniary losses resulting from his death and any other reasonable expense that, in the opinion of the CICB, it is reasonable to incur, pursuant to subsection 7(1)(f) of the Act.
HEARING
5The Applicant appeared and provided oral testimony and submissions. The Applicant’s Counsel also appeared at the hearing.
6The Applicant abandoned her claim for the injury of mental nervous shock at the hearing.
Documentary Evidence
7The CICB received the following documents with respect to the claim: indictments and court docket notes for the Offenders; non-communication orders for both Offenders; probation and DNA orders for the Offenders; Police Reports dated [dates], 2017; media reports dated [date], 2015; death certificate dated [date], 2015; therapy progress notes dated [date] 2015 to [date] 2016; [City] Muslim Cemetery internment receipt dated [date], 2015; [City] Muslim Cemetery invoice dated [date], 2016; communication from the Applicant’s Counsel; Report from Dr. [Name] dated [date], 2017; Affidavit of the Applicant dated October 17, 2017; and the Application.
Summary of Applicant’s Evidence
8The Applicant’s written and oral evidence indicates that the Victim went out with friends on [date], 2015. When he didn’t come home, the Applicant and her husband called him repeatedly through the night and, in the morning, drove to various locations to try to find him. Eventually, the Applicant went to the home of one of the Victim’s friends where she was told that her son was likely dead. She recalls that she was unable to function upon hearing this. She saw her son’s body the next day in the mosque.
9The written evidence from the Police was that the Victim was known to Police but was not involved in gang activity. Although the Offenders were both part of a gang, the Police evidence indicates that the homicide of the Victim was not related to gang activity.
10Since her son’s death, the Applicant has had sleep problems, nightmares, lack of concentration and general anxiety. Although she has made progress in her mental health, she was recently returned to her previous state of grief when she learned that one of the witnesses to [son]’s murder was killed. The media came to her house to ask her to comment about this death and put [son]’s name back in the papers. The Applicant felt scared, unsafe and anxious, and had trouble sleeping. This type of event makes her worry for her other [number] kids and makes her scared to go out in the day. It brought back many bad memories.
11As she had been seeing a Psychologist prior to the death of the Victim for an unrelated issue, she continued to see this Psychologist, Dr. [name], once per month in the summer of 2015 and the winter of 2016. The Applicant would like to continue to see [Psychologist] each week. The Applicant also attended group grief counselling at the suggestion of [Psychologist] which she found beneficial. She would like to continue this group counselling. No receipts were available for this counselling as the payment is made on voluntary basis.
12The Applicant provided receipts for the internment and headstone for the Victim. She also indicated that the funeral costs had been paid by the VQRP.
13The Applicant’s oral evidence was that the Victim provided financial support to the family prior to his death through his many part-time jobs. Although he was unemployed at the time of his death, he had been frequently employed since age 15 and provided between $250 and $600 each month to the family. The Applicant provided a document which had been submitted to the Applicant’s vehicle insurance company which showed that the victim was providing attendant care for his mother from [date], 2014 to [date], 2014. The Victim had quit his job in 2014 to provide this care, including groceries, dishes, laundry, taking kids to activities, and house-keeping. In the year prior to his death, he was a student at [university] and was working on door-to-door furnace sales in [dates] 2015.
Applicant Counsel’s Submissions
14The Applicant’s Counsel provided submissions to the CICB on the following points:
The CICB heard evidence of this traumatic event and deep impact of the event on the Applicant. She lives with this event every day.
One of the unique features of the CICB is its flexibility to allow a relaxed standard of evidence. In Dekany v. CICB, 2011 ONSC 5787, the Divisional Court found that evidence of regular employment was necessary for a claim of loss of support, not evidence that the applicant was employed at the time of the injury. The Divisional Court indicated that the CICB should have considered that the employment history was a longer period.
In the present case, the deceased Victim had worked from age 15. As of age 18, he provided support to the family. He was living with family at the time of his death. He wasn’t paying rent but was contributing to other expenses in this way. It is realistic that this arrangement would exist and would have continued. For example, the evidence shows that the Victim stopped working in 2014 in order to provide attendant care for his mother.
In Counsel’s submission, the discretion exists within the Act and the CICB’s policies to provide an award where it is reasonable. The CICB’s policies should not fetter the discretion of the Act. In Counsel’s submission, the CICB can use its discretion to make an award without the documents that are normally required for a loss of support claim.
Counsel recognizes that there are challenges about the documentation available to the CICB. The Applicant has provided every document that exists and has given credible oral evidence to support her claim. Counsel submits that the policy justification behind the Act is to compensate victims and dependents. This is a case where, even if the policy on substantiating income cannot be made out, the discretion available in the Act can be used to make the award. Counsel submits that this incident warrants a serious consideration of the Applicant’s claim.
Counsel submitted that this family’s practice is to operate without electronic or paper means. Accordingly, it is not realistic for the Applicant to have a paper trail. In addition, there is no contradictory evidence that the Applicant was not providing support to the family, particularly given that the Applicant was not working and the family had [number] kids to support.
Counsel submitted that, although there is no evidence of future income, the CICB has the discretion to make a lump sum award as contribution.
15Counsel submitted the following additional costs at the hearings:
a. Disbursement of $95.00 for report from [Psychologist] dated October 18, 2017;
b. Counsel fees of $400.00; and
c. Costs of $17.00 for the Applicant and Support Person to come to the hearing.
ANALYSIS AND DECISION
16For the following reasons the CICB grants the Application.
17Having considered the evidence presented, the CICB finds that the deceased Victim was the victim of a homicide and therefore a victim within the meaning of section 5(a) of the Act.
EXPENSES
18The CICB accepts that the Applicant incurred costs for the internment and headstone for the Victim. Based on the circumstances, the CICB finds it reasonable to make an award for those costs of $2,735.40 which were not covered by other sources.
LOSS OF SUPPORT
19The Divisional Court in Dekany v. CICB, 2011 ONSC 5787, provides that the CICB can consider the possibility that
(….) applicants who are regularly but casually employed may be able to present evidence of past earning that could establish that future earning could be anticipated (para 11).
The Divisional Court further indicates that a failure to consider this possibility is to fetter the discretion of the CICB (para 11). Although the Dekany case was an application for loss of income, the CICB is prepared to consider the same principles in this claim for loss of support. Based on the oral evidence, the CICB is prepared to accept that the victim contributed to the household income of the family. The Victim was returning to full-time university studies in the fall of 2015. Although the Victim was unemployed at the time of his death, the Victim had a pattern of frequent part-time employment in the 5 years preceding his death. However, as the Applicant was unable to provide documentation to determine the quantum and nature of that financial contribution, the CICB will make a contribution to the loss of support in the amount of $500.00.
BEREAVEMENT COUNSELLIING
20The Applicant has indicated that she continues to experience deep sense of loss in the two years since her son’s death. She has trouble seeing his empty bedroom. She has difficulty sleeping. She is triggered by hearing news stories about shooting. Her son supported her in managing the house and looking after the kids, particularly when the Applicant was in poor health.
21We accept the Applicant’s evidence and the medical evidence of the Applicant’s need for continued bereavement counselling and for group grief counselling. Based on the recommendation of the [Psychologist], the CICB is prepared to make a contribution to these future costs. Under these circumstances, the CICB finds it reasonable to award a contribution of $240.00 towards such costs.
22The CICB understands the emotional impact that the violent death of a relative can have on surviving family members. There can be no question that family members and other loved ones can experience intense distress, trauma and grief from the tragic death of a victim through violence. To assist in addressing the grief and distress associated with this loss, the CICB authorizes up to $2,400.00 (exclusive of taxes) for counselling expenses to be paid directly to a qualified treatment provider. Counselling 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. The CICB may also consider the therapy expenses that were incurred between the time that the Applicant submitted her 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 $2,400.00 amount described above.
23The CICB also awards the Applicant the sum of $17.00 for her cost of parking at the hearing site.
24It is the CICB’s practice to contribute up to a maximum of $400.00 towards legal fees incurred to assist an applicant with her application where it is satisfied that legal representation was reasonably necessary in the circumstances of the case. We find no compelling reason to deviate from that practice under the circumstances. The CICB awards $400.00 in respect of this expense and orders that it be paid directly to the Applicant’s Counsel.
25Pursuant to section 22 of the Act, the CICB orders payment in the amount of $95.00 to Counsel for the report from [Psychologist] of October 18, 2017.
26The 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. In closing, please accept the CICB’s deepest condolences for your loss.
AWARD
27The CICB orders payment as follows:
Subsection 7(1)(a) Expenses $2,975.40
Subsection 7(1)(a) Future Pre-Authorized Expense $ 240.00
Subsection 7(1)(a) Loss of Support $ 500.00
Section 22 Costs: Legal fees and medical report $ 495.00
Section 22 Cost: Travel to hearing $ 17.00
TOTAL AWARD (AND COSTS) $6,387.40
Less: Preauthorized treatment costs -$2,400.00
TOTAL CURRENT AWARD $3,987.40
PAYMENT
28THE CICB ORDERS that the following sums be paid forthwith to:
McNally Gervan LLP in trust for the Applicant $3,492.40
McNally Gervan LLP $ 495.00
DATED at Toronto this 13th day of December, 2017.
Pamela Arnott, Member